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NORTHERN KENTUCKY
LAW REVIEW
Volume 37 Death Penalty Issue Number 2
2010 Death Penalty Issue
ARTICLES
Race, Death and Disproportionality
Scott W. Howe ...
The Continuing Role of Race in Capital Cases, Notwithstanding President Obama’s Election
Ronald J. Tabak...
The Racial Justice Act in Kentucky
Gennaro F. Vito.
RACE, DEATH AND DISPROPORTIONALITY
Scott W. Howe*
Statistical studies showing unconscious racial bias in capital selection matter
under the Eighth Amendment. In McCleskey v. Kemp,' the Court appeared to
shun such evidence as irrelevant to Eighth Amendment challenges to capital
punishment.’ Yet, this kind of evidence has influenced some of the Justices’
views on the constitutionality of the death penalty and has sometimes caused the
Court to restrict the use of that sanction under the Eighth Amendment. My
goal, therefore, is to explain why statistical studies concerning racial bias in
capital selection simultaneously have both limitations as proof and suggestive
power that some death sentences amount to “cruel and unusual punishments.”
Ultimately, I address how such studies, despite their limitations, might influence
the Court in its regulation of the death penalty in the future.*
My project proceeds in five parts. Part I contends that the Eighth
Amendment regulates capital selection not, as is commonly asserted, through a
consistency mandate but, instead, through a deserts limitation — a mandate that
only a person who deserves the death penalty should receive that sanction. Part II
shows how the capital selection process allows for multiple opportunities for
reprieves of offenders who deserve the death penalty but also provides a two-
phase trial to try to ensure that nobody receives a death sentence who does not
deserve it. Part III briefly describes the statistical efforts to determine whether
racial biases concerning defendants and victims influence decisions along the
selection process. Part IV shows, however, why studies that do not focus on the
sentencing trial have only limited Eighth Amendment meaning and why even
studies that have that focus cannot establish with much certainty that violations
* Frank L. Williams Professor of Criminal Law, Chapman University School of Law. I want
to thank, without implicating, Larry Rosenthal, Elliot Cramer and Jetty Maria Howe.
1. 481 U.S. 279 (1987).
2. The Court in McCleskey rejected claims based on a sophisticated investigation, known as
the “Baldus study,” that the Court assumed had validly demonstrated a substantial risk that racial
biases continued to influence post-Furman capital selection in Georgia. 481 U.S. at 291 n.7. A
detailed account of the study that supported the challenge appears in DAviD C. BALDUS, GEORGE
WoopworTH, & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY 40-228, 306-
69 (1990) [hereinafter BALDUs STUDY] .
3. See infra Part V.
4. U.S. Const. amend. VIII (“Excessive bail
imposed, nor cruel and unusual punishments inflicte:
5. I focus here only on the Eighth Amendment. The Supreme Court concluded in McCleskey
that the statistical evidence presented in the Baldus study did not reveal purposeful, racial
discrimination in McCleskey’s case, and that evidence of such purposeful discrimination by a
decisionmaker in the defendant’s case is required to make out a violation of the Equal Protection
Clause. See 481 U.S. at 292.
hall not be required, nor excessive fines
214 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
of the deserts limitation frequently occur. Statistical evidence of racial bias even
at the sentencing trial might reflect mostly the effect of race in the dispensation
of merciful reprieves. Yet, this Part also explains that such evidence can spur
our intuitions that some sentencer findings of deserts underlying some death
sentences, in addition to some reprieves, are racially influenced. In fact, Part V
contends that, despite the Court’s general unwillingness to acknowledge that
racial-bias studies reveal that death sentences are sometimes disproportional, the
studies have influenced the Court — and will continue to influence it — to confine
the use of the death penalty.
I. THE DESERTS LIMITATION IN THE EIGHTH AMENDMENT
Regarding capital selection, the Eighth Amendment imposes one
predominant rule: the government can impose a death sentence only on a person
who deserves it. For this rule plausibly to support the regulation of capital
sentencing, we must conclude that some criminals deserve the death penalty and
that our criminal justice system can, at least in some category of cases, determine
offenders’ deserts. These notions are somewhat controversial.° However,
Eighth Amendment doctrine on the use of the death penalty assumes that they
are true.’ In previous articles, I have examined how this deserts limitation can
find grounding in the language of the Eighth Amendment and how the Supreme
Court’s doctrine on capital sentencing since Furman v. Georgia’ implements and
reveals it.” Without repeating that explanation in full, I aim here briefly to
address a confounding idea and to elaborate on what a deserts limitation implies.
6. See, e.g., Margaret Jane Radin, Cruel Punishment and Respect for Persons: Super Due
Process for Death, 53 S. CAL. L. Rev. 1143, 1168 n.85 & 1181-82 (1980) (“[NJot much
philosophical progress has been made on the issue of how punishment can ‘fit’ crime since
Immanuel Kant suggested that rape and pederasty be punished by castration.”); RANDY E.
BARNETT, THE STRUCTURE OF LIBERTY 318 (1998) (“Any effort to do so will confront very serious
problems of knowledge, interest, and power.”); WALTER KAUFMANN, WITHOUT GUILT AND JUSTICE
64 (1973) (“Not only is it impossible to measure desert with the sort of precision on which many
believers in retributive justice staked their case, but the whole concept of a man’s desert is
confused and untenable.”); Youngjae Lee, The Constitutional Right Against Excessive Punishment,
91 Va. L. REV. 677, 700 (2005) (describing as “profoundly mysterious” the notion of “a crime
having some ‘fit’ with a punishment”).
7. For instances in which the Court’s doctrine reflects doubt about the ability of the criminal
justice system to reach accurate deserts assessments on an individual basis, see infra notes 157-64
& 170-78 and accompanying text.
8. 408 U.S. 238 (1972) (per curiam).
9. See, e.g., Scott W. Howe, Furman’s Mythical Mandate, 40 U. Micu. J. L. REFORM 435,
460-76 (2007); Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the
Eighth Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 WM.
& Mary L. REV. 2083, 2139-49 (2004); Scott W. Howe, The Troubling Influence of Equality in
Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 VAND. L.
REV. 359, 438-41 (2001); Scott W. Howe, The Failed Case for Eighth Amendment Regulation of
the Capital-Sentencing Trial, 146 U. PA. L. REV. 795, 828-35 (1998).
2010] RACE, DEATH AND DISPROPORTIONALITY 215
There is a widespread belief, based on oft-repeated statements from the
Supreme Court, that the Eighth Amendment requires from capital selection
something other than a valid finding that a death-sentenced offender deserves
death: “consistency” or “non-arbitrariness” or “equality.”"° Some of the Justices
have even concluded that the inability to achieve consistency in capital selection
justifies abolition under the Eighth Amendment.'' However, the notion that
consistency is required misleads in that it reflects what the Court has said but not
what the Court has done. In the realm of deciding who dies, all of the Court’s
Eighth Amendment doctrine is best explained as an effort to prevent undeserved
death sentences — and this notion of proportionality does not merge with a
mandate of consistency. '*
We can see the confusion caused by the consistency view by focusing on
two questions:
(1) Do all factually guilty and death-eligible capital offenders
deserve the death penalty, * or do some of them deserve only the lesser
sanction of imprisonment?
(2) Does the Eighth Amendment demand consistency in the
distribution of death sentences among those who deserve them or only
that the death penalty be reserved for those who deserve it?
Consistency or equality claims tend to focus only on the second question."
These claims often either ignore or concede the answer to the first question.'*
10. See Howe, Furman’s Mythical Mandate, supra note 9, at 435-40.
11. Justice Blackmun perhaps most clearly articulated this view in advocating abolition. See,
e.g., Callins v. Collins, 510 U.S. 1141, 1147, 1153 (1994) (Blackmun, J., dissenting from denial of
cert.) (interpreting Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), to mean that “if the death
penalty cannot be administered consistently and rationally, it may not be administered at all”).
More recently, Justice Stevens has also advocated abolition under the Eighth Amendment. See
Baze v. Rees, 128 S. Ct. 1520, 1551 (2008) (Stevens, J., concurring). However, his argument for
abolition appeared to align more with a theory of disproportionality — that there is an unacceptable
“risk of error” in capital cases that results from several factors, including the risk of racial
discrimination. Jd.
12. See infra note 179 and accompanying text (regarding the main doctrines that comprise the
Court's Eighth Amendment regulation of capital selection). For a view based on the “expressive
dimension” of punishment that proportionality could contemplate a requirement of consistency in
the use of a sanction, see Lee, supra note 6, at 712-13 (“[A] punishment imposed on a criminal
would be ‘undeserved’ if it is more severe than the punishment imposed on those who have
committed more serious crimes or crimes of the same seriousness, because the judgment it
expresses about the seriousness of the criminal’s behavior would be inappropriate.”).
13. By “death-eligible” capital offenders, I mean those factually guilty capital offenders 1) who
are not protected from a possible death sentence by one of the Supreme Court's categorical
proscriptions on the use of that sanction, see, eg., Atkins v. Virginia, 536 U.S. 304 (2002)
(protecting mentally retarded offenders); and 2) who have an aggravating circumstance in their case
that satisfies the Supreme Court's requirement for narrowing of the death-eligible group, sce
Godfrey v. Georgia, 446 U.S. 420, 428-29 (1978) (plurality opinion) (requiring that a state narrow
the group).
216 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
They assume that the death penalty is not disproportional — or undeserved — for
death-eligible and guilty capital offenders.'* However, they conclude that the
Eighth Amendment demands consistency in the distribution of death sentences
among the deserving.'” On this basis, they call for judicial intervention to remedy
the statistical evidence of racial discrimination throughout the capital-selection
process.'*
The claim that the Eighth Amendment should require consistency among
those who deserve the death penalty is hard to maintain. First, there is a
“profound contradiction” in any assertion that a prohibition on cruel and unusual
punishments disallows merciful or otherwise undeserved reprieves.'? Such a
claim views the language of the clause in a strange way, holding that the death
penalty becomes less “cruel and unusual” when administered under a system
demanding unrelenting harshness than under one allowing the sentencer
uninhibited freedom to dispense mercy.” Also, to the extent that the claim
assumes that we should remedy inconsistency by reducing rather than increasing
14. Some persons might reject the assumption that we can answer the first question on grounds
that the determination of deserts in the real world is either so elusive or so tied up with comparative
analysis that “apparent equal treatment [is] all we can readily rely on to satisfy our aspirations of
fairness.” Radin, supra note 6, at 1151 (noting without endorsing the possibility of such a claim).
However, the Eighth Amendment explanation for the Supreme Court’s rejection of death penalties
that are mandatory upon conviction disintegrates if we believe that deathworthiness cannot be
determined on an individualized basis. See infra notes 25-26 and accompanying text. Moreover,
we cannot determine whether equality exists without reference to some external substantive
measure, which, in this case, is the deserts standard. See Howe, The Troubling Influence of
Equality, supra note 9, at 365-76.
15. See, e.g., BALDUS STUDY, supra note 2, at 417 (“Certainly, the imposition of death
sentences in such cases may not offend notions of disproportionality or ‘just deserts’. . . .”); id. at
14 (“The problem is not that the defendant’s crime and past record necessarily make a death
sentence unthinkable and thereby excessive in the traditional sense
16. BALDUS STUDY, supra note 2, at 14, 417.
17. See BALDUS STUDY, supra note 2, at 417 (“Nevertheless, trying to achieve consistency and
rationality in capital sentencing is essential if we wish to maintain as a principle the dignity of the
individual (including individuals convicted of capital crimes) and, equally important, to avoid the
corrosive effect on society of judicially condoned racial discrimination.”).
18. A claim that not all factually guilty and death-eligible capital offenders deserve the death
penalty, but that the Eighth Amendment demands consistency in the distribution of death sentences
among those who deserve them, has two problems. First, it fails to explain how a sentencing
inquiry could produce an accurate finding of offender deserts and still ensure consistency. See
Radin, supra note 6, at 1151 (“We cannot simultaneously maximize the extent to which we satisfy
both of these moral requirements.”). Second, it fails to comport with the Supreme Court’s doctrine.
The Court has not required consistency of treatment in the overall selection process or at any stage
of that process. See, e.g., infra Part II (discussing the Georgia system, which the Court has
approved).
19. Daniel D. Polsby, The Death of Capital Punishment? Furman y. Georgia, 1972 Sup. Cr.
REV. 1, 27 (noting a “profound contradiction” in such a claim, because it means that “a punishment
imposed under a system of unmitigated harshness would be less cruel” than one allowing merciful
reprieves).
20. See, e.g., Kyron Huigens, Rethinking the Penalty Phase, 32 Ariz. St. LJ. 1195, 1202
(2000) (“Equality in death sentencing is not a negligible value, but it is an odd one to pursue under
the rubric of cruel and unusual punishment.”).
2010] RACE, DEATH AND DISPROPORTIONALITY 217
the number of death sentences, it ignores that those capital offenders who
deserve and receive the death penalty do not deserve death any less simply
because others who also deserve death escape that sanction?’ As even two
prominent progressive scholars have acknowledged, “our failure to respond
justly in [some death-penalty cases] hardly explains why we should also fail to
do justice in [others].”””
I contend that the answers to both of the questions presented are just the
opposite of those involved in the “consistency” approach. As for the second
question, the Eighth Amendment does not demand “consistency” or “non-
arbitrariness” among those who deserve the death penalty. The Eighth
Amendment demands only that government reserve the death penalty for those
who deserve it.* At the same time, the answer to the first question is that not all
constitutionally death-eligible and guilty capital offenders deserve the death
penalty.” For some of them, the death penalty is disproportional.
As the Court has applied it to capital selection, the Eighth Amendment is,
thus, about a substantive rule—the deserts limitation.?> A call for “consistency”
r “non-arbitrariness” in capital selection makes sense only as a reiteration to
follow that rule. Such a call is not separate from — but rather derives from — the
substantive command. If a person is sentenced to death who does not deserve
that punishment, the sentence is improper because it violates the substantive rule.
We can also say that the sentence is not “consistent” with that governing rule or
that it is “arbitrary” in that it does not accord with that rule. Yet, it is the
substantive rule — the deserts limitation — that gives meaning to the Eighth
Amendment, not a vacuous notion of “consistency” or “non-arbitrariness.””°
21. See, e.g., Barry Latzer, The Failure of Comparative Proportionality Review of Capital
Cases (With Lessons From New Jersey), 64 ALB. L. REV. 1161, 1165-66 (2001) (“Indeed, such a
demand for equal justice is as pernicious as it is pointless, since the remission of deserved death
sentences undermines retributive justice.”); RANDALL COYNE & LYN ENTZEROTH, CAPITAL
PUNISHMENT AND THE JUDICIAL PROCESS, 222 (3d ed. 2006) (“Death penalty supporters . . . argue
that racial discrimination in no way diminishes either the culpability of the defendants who are
sentenced to death or society’s justification for executing them.”).
22. Louls MICHAEL SEIDMAN & MarK V. TUSHNET, REMNANTS OF BELIEF 160 (1996).
23. See Huigens, supra note 20, at 1203 (“The Court’s real concern is not equality in
punishment, but proportionality in punishment.”).
24, See, e.g, Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)
(striking down mandatory death penalty that precluded the sentencer from considering “the
possibility of compassionate or mitigating factors stemming from the diverse frailties of
humankind”).
25. See Howe, Furman’s Mythical Mandate, supra note 9, at 441-56; see also David McCord,
Judging the Effectiveness of the Supreme Court's Death Penalty Jurisprudence According to the
Court's Own Goals: Mild Success or Major er?, 24 FLA. St. U. L. REv. 545, 548 (1997)
(“[T]he Court has had only one primary goal for its regulation of capital punishment: decreasing
overinelusion . . ..”).
26. See Peter Westen, The Empty Idea of Equality, 95 Harv. L. REV. 537, 543-48 (1982)
(asserting that equality is a vacuous notion because its meaning depends on some external
substantive measure).
218 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
At the same time, evidence of racial bias retains significance under this
“substantive” view of the Eighth Amendment, although violations are hard to
detect and hard to prevent, except through partial or total abolition. The deserts
limitation is unidirectional and, thus, while forgiving of unconscious non-
rational bias in favor of mercy, is not indifferent when racial bias influences a
desert finding in support of a death sentence. The rule has meaning for capital
sentencing because of the prevailing view that not every death-eligible and
legitimately convicted capital murderer deserves death. This idea means that, as
a prerequisite to a death sentence, a state must conduct a capital sentencing
hearing at which the offender is entitled to present a broad array of evidence and
to argue for his life.°” The very purpose, under the Eighth Amendment, of the
sentencing hearing is to determine, as a prerequisite to a death sentence, whether
the offender deserves death.”* Although we cannot define with precision the
factors that should weigh in a deserts calculus, or how much those factors should
weigh,” we can agree that racial factors should play no part in it’ This is true
whether the factor is the race of the offender or of the victim. Thus, a death
sentence based on a sentencer’s deserts finding influenced by racial bias is
unreliable and, in that sense, disproportional.”'
Il. THE CAPITAL SELECTION PROCESS AND THE DESERTS LIMITATION
The capital selection process in every death-penalty state comes much closer
to complying with the deserts limitation than to ensuring that all persons who
deserve the death penalty receive it. From the moment of arrest to the moment
of execution, multiple opportunities exist for actors along the way to spare a
27. See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (rejecting Ohio “special
question” scheme as too mandatory, and declaring that the capital sentencer must remain free to
reject the death penalty based on “any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less than death”).
28. See, e.g., Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and
Unguided Mitigation in Capital Sentencing, 38 UCLA L. REV. 1147, 1178 (1991) (noting that the
Court’s wide definition of potentially mitigating evidence in Lockett is “tied to the ultimate issue of
whether the defendant deserves the death penalty”).
29. See, e.g., SEIDMAN & TUSHNET, supra note 22, at 150-51 (contending that the Court’s
rejection of mandatory death penalties led to “determinism’s slippery slope” and the problem that
“we have wildly conflicting and inconsistent intuitions about where to dig in our heels” in judging
the deserts of murderers).
30. See, e.g., Richard O. Lempert, Desert and Deterrence: An Assessment of the Moral Bases
of the Case for Capital Punishment, 79 Micu. L. REV. 1177, 1178 n.5 (1981) (“To my knowledge
no modern retributivist has argued that unalterable personal characteristics such as race and sex
may be properly considered in assessing culpability for crime.”); Sundby, supra note 28, at 1178
(asserting that “no reasonable person would argue that invidious factors like race or poverty . . .
properly bear on whether the defendant deserves death”).
31, See, e.g., McCleskey v. Kemp, 481 U.S. 279, 341 (1987) (Brennan, J., dissenting) (“That a
decision to impose the death penalty could be influenced by race is thus a particularly repugnant
prospect, and evidence that race may play even a modest role in levying a death sentence should be
enough to characterize that sentence as “cruel and unusual.”).
2010] RACE, DEATH AND DISPROPORTIONALITY 219
defendant who deserves death. Most states make no pretense of trying to stop
these non-deserved reprieves. Their goal, instead, is to provide a fair guilt-or-
innocence trial followed by a fair sentencing trial, which can help ensure that
nobody receives a death sentence who does not deserve it.
The Georgia system, which the Supreme Court first upheld in 1976,”
exemplifies this deserts-limitation approach to capital selection. In Georgia, a
person who commits a homicide may face a death-sentencing trial if he is found
guilty of common-law murder.’ Despite the availability of strong evidence of
his guilt of murder, however, a defendant will probably avoid such a trial.* The
police do not investigate all homicides with maximum intensity, and, in some
cases, the police may not feel pressure to develop overwhelming evidence of
guilt.“° For this and other reasons, when an arrest occurs, the prosecutor
handling the case might decide to charge the defendant merely with
manslaughter or some lesser form of criminal homicide. Assuming the
prosecutor charges the defendant with murder, a grand jury might only indict the
defendant on a lesser charge.*® If the grand jury indicts the defendant for
murder, the prosecutor can still offer to reduce the charge to manslaughter or to
not seek the death penalty if the defendant pleads guilty.”’ If the prosecutor does
not offer a plea bargain but instead proceeds to trial, a jury can still “nullify” the
law by finding the defendant guilty of a lesser form of homicide.** Moreover,
even if a jury finds the defendant guilty of murder, the prosecutor can still
decline to pursue a death sentence.”
Most murder cases do not proceed to a capital sentencing trial even if the
defendant is guilty and death-eligible. Usually, a murder charge results in a plea
32. See Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion).
33. See McCleskey, 481 U.S. at 284 n.1 (discussing the Georgia statute providing the penalty
options for murder).
34. See Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of Racial
Discrimination in Infliction of the Death Penalty, in FROM LYNCH MOBS TO THE KILLING STATE
211, 229 (Charles J. Ogletree, Jr. & Austin Sarat ed., 2006) (“[P]rosecutors are given wide
discretion in deciding whether to seek the death penalty.”).
35. Id. at 221 (“Often, the amount of available evidence differs because the local sheriffs and
police departments investigate crime in the white community much more aggressively than crime in
the black community.
36. See Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police
Prosecution of Criminal Cases, 40 Ariz. L. REV. 1305, 1361 (1998) (quoting Vasquez v. Hillery,
474 U.S. 254, 275 (1986) (Powell, J., dissenting) (“[T]he grand jury is vested with broad discretion
in deciding whether to indict and in framing the charges... .”).
37. The United States Supreme Court has concluded that plea-bargaining to avoid the
possibility of a death sentence is constitutional. Brady v. United States, 397 U.S. 742 (1970).
38. Jurors have the power to acquit even in the face of overwhelming evidence of guilt. See
generally WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE 1027-28
Gd ed. 2000).
39. See BALDUS STUDY, supra note 2, at 106 (“In Georgia, even after the defendant’s
conviction for capital murder, a prosecutor who considers a death sentence to be inappropriate or
unwarranted may waive the penalty trial.”).
220 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
bargain that spares the defendant from death.” Among the small proportion of
cases that proceed to trial and result in murder convictions, a capital-sentencing
hearing is still not the norm. One post-Furman study found that, during one
extended period in Georgia, prosecutors declined to pursue the death penalty in a
large majority of the murder cases in which a jury had already convicted the
defendant of that crime.*'
The basis for these reprieves need not have anything to do with the deserts of
the defendant. The decision of a prosecutor to spare a defendant from the death
penalty is essentially unreviewable absent proof of a conscious purpose to
discriminate based on race or some other forbidden basis under the Equal
Protection Clause.” Thus, the prosecutor may ground such a decision on
considerations related, for example, to his own political career, on the desire to
save public resources, on the desire to focus prosecutorial efforts on other
offenders or even on unconscious, personal biases regarding the defendant or the
victim.” Likewise, jurors at the grand jury stage or at a guilt-or-innocence trial
may not indict the defendant for murder or may acquit him on that charge for
reasons that have nothing to do with his deserts. The trial jurors may, for
example, find him guilty of only a lesser charge because they feel sympathy for
the defendant’s family but little kinship with the victim, who was from out-of-
state. A jury’s decision to acquit is also unreviewable.*
Assuming a murder arrest results in a murder conviction and proceeds to a
sentencing trial, the jury would still retain broad discretion to spare the offender
on grounds having nothing to do with his deserts. In Georgia, at a capital-
sentencing hearing, both the defense and the prosecution can present evidence
that relates to the offender’s character, record, or crime.** Both parties also can
present arguments on whether the offender warrants the capital sanction."” The
40. See WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES 62 (1991) (“Since plea
bargaining is widely employed in capital cases, its effect on the selection of those sentenced to
death will be pervasive... .”).
41. See BALDUs STUDY, supra note 2, at 106 (“[I]n 59 percent of the death-eligible cases, a life
sentence was imposed by default when the prosecutor unilaterally waived the penalty trial.”).
42. See, e.g., Latzer, supra note 21, at 1188 (“[E]ven a purposeful selective enforcement
policy does not deny equal protection, unless it is based on an invidious standard.”).
43. See WHITE, supra note 40, at 54-57; see also Latzer, supra note 21, at 1190 (“To establish
an Equal Protection violation, the challenger would have to prove purposeful discrimination on a
racial or some other similarly forbidden basis.”).
44. See Interview with Alan M. Dershowitz, Professor at Harvard Law School, in Cambridge,
Mass. (Mar. 2, 1988), in A PUNISHMENT IN SEARCH OF A CRIME 330, 331 (lan Gray & Moira Stanley
eds., 1989) (asserting that capital sentencing juries favor those who are residents of their area rather
than those who are from other regions).
45. See, e.g., Fong Foo v. United States, 369 U.S. 141 (1962) (per curiam) (concluding that
Court of Appeals erred in ordering retrial after trial judge had erroneously instructed jury to acquit
defendants and entered judgment of acquittal).
46. See Gregg v. Georgia, 428 U.S. 153, 163-64 (1976) (plurality opinion) (noting that
Georgia statute allowed for the presentation of such evidence by the defense and the prosecution).
47. Id.
2010] RACE, DEATH AND DISPROPORTIONALITY 221
judge instructs the jury that it must find at least one aggravating circumstance
from a statutory list as a prerequisite to imposing a death sentence." However,
the list of statutory aggravators covers almost all murders, so this requirement
rarely poses an obstacle for the prosecution.” If the jury finds an aggravating
circumstance, it may consider any other evidence that it deems either aggravating
or mitigating in determining the sentence.” At this final stage, the jury retains
“absolute discretion.*' Thus, a jury may spare an offender on non-desert
grounds. At the same time, the hope is that a jury will render a verdict for a
death sentence only if it determines that the offender deserves that sanction.”
48. The statutory aggravating circumstances in the post-Furman Georgia statute were as
follows:
(1) The offense . . . was committed by a person with a prior record of
conviction for a capital felony, or the offense . . . was committed by a person
who has a substantial history of serious assaultive criminal convictions.
(2) The offense . . . was committed while the offender was engaged in the
commission of another capital felony, or aggravated battery, or the offense of
murder was committed while the offender was engaged in the commission of
burglary or arson in the first degree.
(3) The offender by his act . .. knowingly created a great risk of death to more
than one person in a public place by means of a weapon or device which would
normally be hazardous to the lives of more than one person.
(4) The offender committed the offense . . . for himself or another, for the
purpose of receiving money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, district attorney or
solicitor or former district attorney or solicitor [was committed] during or
because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder or committed
murder as an agent or employee of another person.
(7) The offense . . . was outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind, or an aggravated battery to the
victim.
(8) The offense . . . was committed against any peace officer, corrections
employee or fireman while engaged in the performance of his official duties.
(9) The offense . . . was committed by a person in, or who has escaped from,
the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering with,
or preventing a lawful arrest or custody in a place of lawful confinement, of
himself or another.
Ga. Cope ANN. § 27-2534.1 (Supp. 1975), quoted in Gregg, 428 U.S. at 165 n.9.
49. See, e.g., Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on
Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. REV. 355, 384
(1995) (noting that the Georgia statute does not limit death eligibility to a “small sub-class”).
50. See BALDUS STUDY, supra note 2, at 102-04. For a forceful argument that states should
eschew the “one-aggravator-is-sufficient-and-all-are-equal” model in favor of a more nuanced list
of depravity factors and a requirement of “an accumulation of them for death-eligibility;” see
David McCord, Should Commission of a Contemporaneous Arson, Burglary, Kidnapping, Rape,
or Robbery be Sufficient to Make a Murderer Eligible for a Death Sentence? — An Empirical and
Normative Analysis, 49 SANTA CLARA L. REV. 1, 2-3 (2009).
51. Zant v. Stephens, 462 U.S. 862, 871 (1983).
52. See, e.g., McKoy v. North Carolina, 494 U.S. 433, 443 (1990) (““[l]t is precisely because
the punishment should be directly related to the personal culpability of the defendant that the jury
must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s
222 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Yet, this final deserts assessment is highly subjective; there are no standards that
guide the jury to a verdict.
If an offender receives a death sentence — which happens in Georgia to only
about two percent of those arrested for murder™ — he may still be reprieved for
reasons that have nothing to do with his deserts. Appeals may result in a reversal
of his conviction or death sentence based on errors that occurred in the trials.
As a result, the case may be returned to the trial level, and the many
prosecutorial and jury decisions would have to be repeated for him to again
receive a death sentence. Along the way, the defendant might again gain a
reprieve on non-desert grounds.
This kind of system focuses on ensuring deserved death sentences rather
than on ensuring deserved reprieves. Consistency of outcomes among all
potential murder defendants or even among convicted murderers is not a
plausible expectation. Nothing about such a system tends to provide a
meaningful basis for distinguishing cases resulting in death sentences from those
involving reprieves. Still, if all or virtually all death-sentenced persons deserve
that punishment, the system satisfies the deserts limitation.
Ill. THE STATISTICAL STUDIES OF RACIAL INFLUENCES IN THE SELECTION
PROCESS
Given that death-selection systems provide the opportunity for many highly
discretionary decisions along the path to a death verdict, the biases of the
decision-makers would seem likely sometimes to influence their decisions.*°
The presence of these influences does not necessarily refute that those who
character or record or the circumstances of the offense.””) (quoting Penry v. Lynaugh, 492 U.S.
302, 327-28 (1989).
53. See Zant, 462 U.S. at 874 (noting that “the finding of an aggravating circumstance does
not play any role in guiding the sentencing body in the exercise of its discretion, apart from its
function of narrowing the class of persons convicted of murder who are eligible for the death
penalty”).
54. See John Blume, Theodore Eisenberg & Martin T. Wells, Explaining Death Row’s
Population and Racial Composition, 1 J. EMPIRICAL LEGAL STUD. 165, 172 tbl. 1 (2004) (noting
that the death sentence rate among murder arrestees in Georgia from 1977-99 was 0.022 (243 death
sentences out of 10,912 murder arrests)).
55. See, e.g. James S. Liebman, Jeffrey Fagan, Valerie West & Jonathan Lloyd, Capital
Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839, 1853 (2000) (reporting
that reviewing courts had reversed more than 75% of all death sentences imposed in Georgia from
1973 through 1995).
When the Supreme Court first reviewed the post-Furman Georgia statute in Gregg v. Georgia,
428 U.S. 153 (1976) (plurality opinion), the plurality noted that the Georgia statute called for the
Georgia Supreme Court to conduct an appellate review to ensure that a death sentence did not
appear disproportionate to the sentences imposed in similar cases. See id. at 198. However, the
plurality could not reasonably have placed significant reliance on this feature of the system to
ensure consistency. See Howe, Furman’s Mythical Mandate, supra note 9, at 448 n.59.
56. See LINDA E. CARTER, ELLEN S. KREITZBERG & Scott W. HOWE, UNDERSTANDING CAPITAL
PUNISHMENT LAW 281 (2d ed. 2008).
2010] RACE, DEATH AND DISPROPORTIONALITY 223
receive death sentences deserve them. Nonetheless, in a society in which racial
biases often operate, one would expect racial biases occasionally to influence
capital selection.”
Many published, statistical studies have reached conclusions consistent with
this intuition. A few were conducted in the pre-Furman era, but the vast
majority address post-Furman sentencing schemes.” The studies vary greatly in
their foci, in their thoroughness and in their conclusions. Nonetheless, a large
proportion of even the post-Furman studies have found a substantial risk that
some racial bias affects one or more stages of the capital selection process in
certain jurisdictions.” The studies have tended to indicate that unconscious
discrimination against black capital defendants generally is far less prevalent
than in the pre-Furman era.”' At the same time, a significant number have found
a risk of unconscious discrimination against those defendants who kill white
victims and, especially within that group, some studies have also found a risk of
unconscious discrimination against black defendants.”
The most famous of the studies focused on the operation of Georgia’s system
in the 1970s and gave rise to the litigation that produced the Supreme Court
decision in McCleskey.® A research team led by Professor David Baldus of the
University of Iowa College of Law tried to determine the influence of racial and
other illegitimate factors on the death-selection process in Georgia, from
indictment through sentencing verdict.“ For all suspects charged with murder
throughout the state between 1973 and 1979, the researchers discovered the
following death-sentencing rates in four categories of race-of-defendant and
race-of-victim combinations:
57. See id. at 14 (“[O]pponents cite studies that show defendants are more likely to receive the
death penalty if the victim is white.”).
58. See, e.g., Marvin E. Wolfgang & Mare Riedel, Race, Judicial Discretion, and the Death
Penalty, 407 ANNALS AM. ACAD. POL. & Soc. Sci. 119, 122-26 (1973) (discussing pre-Furman
studies); Gennaro F. Vito & Thomas J. Keil, Capital Sentencing in Kentucky: An Analysis of the
Factors Influencing Decision Making in the Post-Gregg Period, 79 J. CRIM. L. & CRIMINOLOGY
483, 485-87 (1988) (summarizing pre-Furman studies).
59. See, e.g., Howe, The Futile Quest, supra note 9, at 2106-19 (discussing post-Furman
statistical studies
60. See Howe, The Futile Quest, supra note 9, at 2120 (discussing such studies).
61. See Howe, The Futile Quest, supra note 9, at 2120.
62. See Howe, The Futile Quest, supra note 9, at 2120; Ronald J. Tabak, Is Racism Irrelevant?
Or Should the Fairness in Death Sentencing Act Be Enacted to Substantially Diminish Racial
Discrimination in Capital Sentencing?, 18 N.Y.U. Rev. L. & Soc. CHANGE 777, 778 (1990-91)
(“[IJn state after state, a defendant is far more likely to receive the death penalty for a particular
capital murder if his victim is white than if his victim is black.”) (footnote omitted).
63. See BALDUS STUDY, supra note 2, at 3 (noting that the study provided the basis for the
McCleskey v. Kemp, 481 U.S. 279 (1987) litigation in the Supreme Court over the claim of racial
bias).
64. See BALDUS STUDY, supra note 2, at 45 (“[T]he primary emphasis . . . was on the extent to
which racial and other illegitimate or suspect case characteristics influenced the flow of cases from
the point of indictment up to and including the penalty-trial death-sentencing decision.”).
224 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Race of Defendant & Victim Death Sentencing Rate
1. black defendant/white victim .21 (50/233)
2. white defendant/white victim .08 (58/748)
3. black defendant/black victim -01 (18/1443)
4. white defendant/black victim .03 (2/60)
TOTAL .05 (128/2488)°
These figures might hint at the influence of racial bias, but they do not prove
it. They reveal that defendants much more often received the death penalty in
white-victim cases than in black-victim cases. They also show that, within the
white-victim cases, black defendants received the death penalty much more often
than white defendants. We might suspect the influence of racial bias based on
the country’s long history of racial bias by whites in favor of whites and against
blacks.” Still, one might posit that legitimate factors could coincidentally
correlate with the racial factors and thereby explain the disparities on non-racial
grounds. To investigate that possibility, the researchers searched for any such
factors.”
The researchers did not find latent factors that would explain the racial
disparities.“ They investigated 230 variables for each case and defendant, but
ultimately focused on a core model of thirty-nine variables.” Employing cross-
tabulations and multiple-regression analysis, the researchers determined that no
combination of legitimate variables could come close to explaining the results
without the consideration of race.”” Criticisms of their methodologies caused the
federal district court to reject the study as flawed,” but the Supreme Court
assumed that the study was statistically valid.”
The Baldus researchers ultimately found that “the race of the victim [was] a
potent influence in the system.””> Among all murder cases, they did not find that
65. See BALDUs STUDY, supra note 2, at 315 tbl. 50.
66. See Grutter v. Bollinger, 539 U.S. 306, 333, 338 (2003) (acknowledging “our Nation’s
struggle with racial inequality” and that “race unfortunately still matters”).
67. See BALDUs STUDY, supra note 2, at 46, 316-17.
68. See BALDUS STUDY, supra note 2, at 318 (“[R]ace of the victim has an importance of the
same order of magnitude as ‘multiple stabbing,’ ‘serious prior record,’ and ‘armed robbery
involved,’ and its effect is larger than several variables of well-recognized importance, such as the
victim having been a stranger.”).
69. See BALDUs STUDY, supra note 2, at 317-18.
70. See BALDUs STUDY, supra note 2, at 316-17.
71. See McCleskey v. Zant, 580 F. Supp. 338, 379 (N.D. Ga. 1984). Several eminent social
scientists subsequently endorsed the methodological soundness of the Baldus study. See Randall
L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV.
L. REV. 1388, 1399-1400 (1988) (quoting Brief Amici Curiae for Dr. Franklin M. Fisher, Dr.
Richard O. Lempert, Dr. Peter W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel &
Professor Franklin E. Zimring in support of Petitioner Warren McCleskey at 3, McCleskey (No. 84-
6811).
72. See McCleskey v. Kemp, 481 U.S. 279, 292 n.7 (1987).
73. BALDUS STUDY, supra note 2, at 185.
2010] RACE, DEATH AND DISPROPORTIONALITY 225
black defendants faced greater odds of receiving a death sentence because of
their race.” However, they concluded that defendants who murdered a white
person rather than a black person faced much greater odds of receiving a death
sentence.” Also, among the white-victim cases, black defendants faced greater
odds of receiving a death sentence because of their race.” The risk of racial
influences operated mostly in cases that the authors classified in the mid-range
of defendant culpability.” The researchers also concluded that the race effects
arose not only from the actions of prosecutors but from the decisions of capital-
sentencing jurors.”
Many other multiple-regression studies have reached similar conclusions,
although they often account for a relatively small number of non-racial factors.”
Social scientists have conducted these studies in a variety of death-penalty
jurisdictions and over a period that includes the current decade.’ Several
reviews of the studies have concluded that racial effects appear in at least some
parts of the selection process in many jurisdictions. For example, the U.S.
General Accounting Office reviewed twenty-eight studies that were published
from 1972 to 1990.*' Likewise, Baldus and Woodworth reviewed eighteen
studies that were published from 1990 to 2003." Both reviews concluded that,
while a risk of race-of-defendant bias finds support in only a small minority of
the studies, evidence of race-of-victim bias shows up in most of them."
Generalizations about the studies, however, should not mask that, assuming
that we accept their methodological validity, their foci and conclusions vary
greatly. The findings regarding racial effects are not unanimous.” The studies
also do not cover some of the most important death-penalty jurisdictions,** and
attitudes about race have progressed and hopefully will continue to progress.
74. See BALDUs STUDY, supra note 2, at 328.
75. See BALDUs STUDY, supra note 2, at 328.
76. See BALDUs STUDY, supra note 2, at 328.
77. See BALDUs STUDY, supra note 2, at 145.
78. See, e.g., BALDUS STUDY, supra note 2, at 187 tbl. 44.
79. See, e.g., Howe, The Futile Quest, supra note 9, at 2110-19 (summarizing the more
prominent studies).
80. See Howe, The Futile Quest, supra note 9, at 2110-19.
81. See generally U.S. GEN. Acct. OrF., GGD-90-57, DEATH PENALTY SENTENCING: RESEARCH
INDICATES PATTERN OF RACIAL DISPARITIES (1990).
82. See generally David C. Baldus & George Woodworth, Race Discrimination in the
Administration of the Death Penalty: An Overview of the Empirical Evidence with Special
Emphasis on the Post-1990 Research, 39 CRIM. L. BULL. 194 (2003).
83. See U.S. GEN. ACCT. OFF., supra note 81, at 5-6; Baldus & Woodworth, supra note 82, at
203-13.
84. See David C. Baldus, George Woodworth, Catherine M. Grosso & Aaron M. Christ,
Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and
Empirical Analysis of the Nebraska Experience (1973-1999), 81 NEB. L. REV. 486, 500 (2002)
(noting that the race disparities “are highly sensitive to locality and vary significantly”).
85. See Scott Phillips, Racial Disparities in the Capital of Capital Punishment, 45 Hous. L.
REV. 807, 808-09 (2008) (noting that good statistical studies have not covered some of the most
active death penalty states).
226 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Also, the studies do not all focus on the same parts of the selection process, with
some centered on prosecutorial decisions or the overall process, and only a
fraction separating out the decisions of sentencers.“° Many commentators
believe that the studies support a generalized conclusion that racial bias
sometimes influences some parts of the capital selection process in some
jurisdictions.” The relevant issue under the proportionality view of the Eighth
Amendment, however, is whether they reveal that some offenders receive death
sentences that they do not deserve. We now turn to that question.
IV. THE EIGHTH AMENDMENT SIGNIFICANCE OF THE STUDIES
Racial-bias studies can have major policy implications, but if the prohibition
on cruel and unusual punishments is about proportionality and that idea does not
merge with consistency, even excellent studies can only hint that some death
sentences infringe the Eighth Amendment. My goal in this part is to explain why
statistical studies have limitations as proof that some offenders receive
undeserved death sentences,** but why they can suggest that outcome.” In the
end, we must rely heavily on our intuitions to conclude that death sentences
frequently amount to excessive retribution.”
A. Limitations of Statistical Studies as Proof of Disproportionality
As proof of disproportionality in the use of the death penalty, statistical
studies actually pose several problems. I will discuss three of them here. I do
not address claims that a study can fail sufficiently to investigate case variables
that might legitimately explain racial effects.”' This concern bears on whether a
86. For studies that focus on prosecutorial decision-making, see, e.g., Katherine Y. Barnes,
David Sloss & Stephen C. Thaman, Life and Death Decisions: Prosecutorial Discretion and
Capital Punishment in Missouri, Arizona Legal Studies Discussion Paper No. 08-03 (2008),
available at http://ssrn.com/abstract=1107456 (last visited January 19, 2010); Richard A. Berk,
Robert Weiss & Jack Boger, Chance and the Death Penalty, 27 LAw & Soc’y REV. 89 (1993);
Leigh B. Bienen et al., The Reimposition of Capital Punishment in New Jersey: The Role of
Prosecutorial Discretion, 41 RUTGERS L. REV. 27 (1988).
For a study that focuses on the overall selection process, see Glenn L. Pierce & Michael L.
Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California
Homicides, 1990-1999, 46 SANTA CLARA L. Rev. 1, 39-40 (2005) (noting that a more
comprehensive study would collect data for discrete stages of the process).
For studies that focus separately on more than one stage, see, e.g., David C. Baldus et al.,
Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal
Overview, With Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1664 (1998);
Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: An
of Post-Gregg Outcomes, 7 JUST. Q. 189 (1990).
87. [have previously asserted as much. See Howe, The Futile Quest, supra note 9, at 2120.
88. See infra Part IV.A.
89. See infra Part IV.B.
90. See infra Part IV.B.
91. For an article discussing factors other than the race of the defendant or victim that can
explain racial effects in sentences, see Kenneth E. Fernandez & Timothy Bowman, Race, Political
2010] RACE, DEATH AND DISPROPORTIONALITY 227
study can even tend to show that racial bias operates within a capital-selection
system.” I acknowledge at the outset the need for reasonably well-controlled
studies. I also do not address claims that a statewide study can fail to analyze
data at an intrastate level and, thus, either falsely imply or else mask the
existence and degree of racial effects that are occurring within the state.’ 1
acknowledge as well the benefits of analysis at both state and intrastate levels.
Assuming a reasonably well-controlled study with intrastate analysis, an
initial challenge in establishing disproportionality stems from the benefits of
concentrating separately on several phases of the selection process. Studies lose
some probative value if they do not focus separately on the sentencing trial,
which is where the deserts limitation is enforced.’ If a sentencing jury has
correctly concluded that a guilty and convicted capital murderer deserves the
death penalty, his deserts do not change merely because unconscious racial bias
Institutions, and Criminal Justice: An Examination of the Sentencing of Latino Offenders, 36
CoLuM. HUMAN RiGuTs L. REV. 41 (2004).
92. See Howe, The Futile Quest, supra note 9, at 2120 (“[I]n about one-fourth of that group [of
studies], white defendants rather than black defendants were disfavored, at least on a state-wide
basis.”).
93. For example, statewide findings can mask latent variables related to political pressures and
racial or socio-economic differences among geographically diverse decision-makers. If counties
with largely white populations, as compared with counties with largely black populations, produce
a larger proportion of death sentences from among the number of death-eligible defendants, the
overall state figures may skew towards more death sentences in white-victim cases. Even after
logistic regression analysis, the lack of legitimate distinctions among the cases themselves may
appear to suggest unconscious discrimination based on the race of the victim. The reality may be,
however, that the disparities have another explanation. They may only reflect that prosecutors in
largely white counties feel more political pressure to pursue death sentences than prosecutors in
largely black counties. See BALDUS STUDY, supra note 2, at 173-78. The disparities may also
reflect that juries from largely white counties are more likely to impose death sentences than juries
from largely black counties. Such disparities based on the differing views of prosecutors and juries
in racially distinct counties may themselves give ground for concern about the use of the death
penalty. However, they would not reflect discrimination based on the race of the victim. See Kent
Scheidegger, Peel Off Hype, Examine Data, USA Topay, Apr. 29, 2003, at 14A (contending that
such intrastate variations explain statewide findings of race-of-victim disparities in Maryland
study). In the Baldus study in Georgia, however, the researchers examined the data on a localized
level and found no basis to believe the racial effects they identified resulted from these effects. See
BALDUS STUDY, supra note 2, at 178.
These same sorts of effects may also operate to obscure racial bias in statewide studies,
although such bias would stand out in more localized studies. Statewide data, for example, may
mask harsh treatment of black defendants in rural regions that is offset by lenient treatment of black
defendants in one or more urban areas. See David C. Baldus & George Woodworth, Race
Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact
and Perception, 53 DEPAUL L. REV. 1411, 1420 (2004).
One of the problems with highly localized studies can be an insufficient number of cases or
death verdicts to produce valid statistical conclusions. See, e.g., BALDUS STUDY, supra note 2, at
178 (noting the inability for this reason to separately analyze cases from each judicial circuit in
Georgia).
94. See supra Part I.
228 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
motivated the prosecutor to pursue the death penalty. The prosecutor’s
motivation for pursuing the death sentence would not, without more, render the
jury’s determination unreliable. This means that the statistical studies that could
best show disproportionality would focus on whether race has influenced the
decision-makers at the sentencing trial.”” Many of the existing studies do not
have this focus.”
Another potential problem, of course, is that a study may not show
significant racial effects at the sentencing stage. Among existing studies that
have focused separately on capital-sentencing juries, some have not found
significant indications that juries act out of bias against black defendants or
against killers of white victims.”* For example, Professor Scott Phillips found no
such evidence in a recent study regarding capital selection in Harris County,
Texas, which encompasses Houston.” This study is especially important,
because Harris County is the source of more executions than any other county in
the nation in the post-Furman era.'” If Harris County were a state, it would rank
second in executions, trailing only its home state of Texas.'”’ Also, Phillips
examined a large number of cases over a long period --all 504 that involved
defendants who were indicted for capital murder in Harris County from 1992 to
1999,'" He also gathered extensive data concerning the victims, defendants and
crimes, relying in part on newspaper accounts.’ Using logistic regression
95. If the prosecutor acts with a conscious purpose to discriminate based on race, those actions
will violate equal protection principles. See supra note 5.
96. At the same time, studies that focus only on the sentencing stage are suspect because of
their potential for “sample selection bias.” Racial discrimination by decision makers earlier in the
selection process can tend to mask the influence of race on the sentencer. See Samuel R. Gross &
Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and
Homicide Victimization, 37 STAN. L. REV. 27, 46-48 (1984); Justin D. Levinson, Race, Death, and
the Complicitous Mind, 58 DEPAUL L. REV. 599, 638-39 (2009).
97. Could a statewide, statistical study that reveals pronounced racial effects in the decisions of
prosecutors but not in the decisions of sentencing juries justify a disproportionality conclusion?
One could say that the proportionality idea carries a limited comparative aspect even if
proportionality does not merge with consistency. The explanation could perhaps be that, at some
point, the expressive function of punishment should assume overriding importance in cases of
racial disparity. See Lee, supra note 6, at 712-13. On this view, the tipping point for a finding of
disproportionality could remain much higher than a mere finding of inconsistency. Nonetheless,
this theory does not have a firm foundation in the Supreme Court’s existing capital-sentencing
holdings.
98. See, e.g., Stephen P. Klein & John E. Rolph, Relationship of Offender and Victim Race to
Death Penalty Sentences in California, 32 JURIMETRICS J. 33, 42 (1991).
99. See Phillips, supra note 85.
100. See Phillips.
101. See Phillips.
102. See Phillips, supra note 85, at 817.
103. One commentator has noted that, because media accounts could mischaracterize facts in
racially biased ways, heavy reliance on media sources for information about cases could
unintentionally mask disproportionate treatment based on race. See Levinson, supra note 96, at
632-43.
2010] RACE, DEATH AND DISPROPORTIONALITY 229
analysis, he also analyzed the actions both of the Harris County District
Attorney’s Office and of the capital sentencing juries.'™
While Phillips found evidence that black defendants and killers of white
victims were disfavored in the overall selection process,'”* the evidence was not
similar at all of the selection stages.'"° The concern centered on the Harris
County District Attorney’s Office.'"’ That office was significantly more likely to
pursue death sentences in black-defendant and white-victim cases.'“ Phillips
found no indication that capital-sentencing juries in Harris County favored white
defendants or killers of black victims.” To the contrary, he found a slight racial
effect favoring black defendants and killers of white victims.'"’ Phillips’s
findings arguably support equal protection challenges based on the actions of the
Harris County District Attorney’s Office, even after McCleskey.''' However, the
study provides little basis to conclude that juries in Harris County systematically
rendered flawed desert findings regarding those who received death sentences.
Some statistical researchers, nonetheless, have obtained results tending to
show that race sometimes influences capital-sentencing juries.'' The Baldus
study in Georgia that was the subject of the litigation in McCleskey is one
example, and a study by Keil and Vito in Kentucky is another.''? Likewise, in
the late 1990s, Professor Baldus led an investigation that concluded that
significant race-of-defendant and race-of-victim effects appeared in a sample of
capital cases from Philadelphia.''* This study examined all phases of the capital
selection process for a group of 425 death-eligible defendants who were
prosecuted from 1983 through 1993.'° After gathering detailed information
about the cases, the researchers analyzed the data in multiple ways, including
104, See Phillips, supra note 85, at 816-17, 837.
105. See Phillips, supra note 85, at 838-39.
106. See Phillips, supra note 85, at 830.
107. See Phillips, supra note 85, at 830, 834.
108. Phillips incorporated conclusions regarding Hispanic defendants and victims, but he
concluded that they were treated no differently than whites by both the District Attorney’s Office
and capital sentencing juries. See Phillips, supra note 85, at 830, 834.
109. See Phillips, supra note 85, at 834.
110. See Phillips, supra note 85, at 837.
111, See John H. Blume, Theodore Eisenberg & Sheri Lynn Johnson, Post-McCleskey Racial
Discrimination Claims in Capital Cases, 83 CORNELL L. REV. 1771, 1805 (1998) (explaining why
county-level statistical studies of prosecutorial decisions are distinguishable from the statewide
study found inadequate to support an equal protection claim in McCleskey).
112, Professor Baldus, for example, was appointed by the New Jersey Supreme Court in 1992
as Special Master to conduct a continuing review of capital selection in the state. In 1998, he
concluded that cases analyzed from 1989 forward showed both unexplained race-of-victim
disparity in prosecutorial decision-making and unexplained and pronounced race-of-defendant
disparities in the decision-making by penalty-phase juries. See Baldus et al., supra note 86, at 1664.
113, See supra note 78 and accompanying text; Keil & Vito, supra note 86, at 203 (noting that,
at the sentencing stage, in Kentucky, blacks who killed whites faced a higher risk of receiving a
death sentence than blacks who killed blacks).
114, See Baldus et al., supra note 86, at 1657-1710.
115. See Baldus et al., supra note 86, at 1667-69.
230 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
logistic regression analysis.''* They concluded that the study indicated bias in
the overall process against black defendants and killers of non-black victims.'!”
They also concluded that the principal source of the problem was capital-
sentencing juries rather than the prosecutor.''*
A final obstacle in proving disproportionality with a statistical study,
however, stems from the difficulty of parsing the bases for decision-makers’
actions.''” This problem confronts even studies that focus on the sentencing trial
and that find racial effects in jury decision-making. The problem is that even
these studies cannot distinguish between two kinds of unconscious
discrimination at the sentencing trial, one not prohibited under the
disproportionality view of the Eighth Amendment and the other prohibited.'”°
Evidence of racial bias by sentencing juries does not necessarily prove that they
regularly condemn capital offenders to death who do not deserve it. The
discrimination could merely reflect that some juries more readily extend mercy
or other non-desert based leniency to white defendants than to black defendants
and to killers of blacks than to killers of whites. As the McCleskey court
implicitly acknowledged in finding the Baldus study inadequate, the Eighth
Amendment does not proscribe non-deserved reprieves.'”' Moreover, if the racial
discrimination is all about non-desert-based leniency, sentencing jurors are not
condemning anyone to death who does not deserve it. There is no violation of
the prohibition in the Eighth Amendment.
B. Suggestive Power of the Studies Regarding Disproportionality
While statistical studies cannot offer iron-clad proof that death sentences
often rest on flawed findings of desert, they can add to our reasonable suspicions
that these tainted findings regularly occur. First, we should consider the studies
not in a vacuum but in light of historical and contemporary evidence of racial
prejudice. There can be no doubt that “race unfortunately still matters” in
116, See Baldus et al., supra note 86, at 1684.
117. See Baldus et al., supra note 86, at 1676, 1678.
118, See Baldus et al., supra note 86, at 1715.
119. See supra note 93.
120. Gregg v. Georgia, 428 U.S. 153, 173 (1976) (“[T]he inquiry into ‘excessiveness’ has two
aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain.
Second, the punishment must not be grossly out of proportion to the severity of the crime.”)
(internal citations omitted).
121, See McKleskey v. Kemp, 481 U.S. 279, 306-07 (1987) (“[A]bsent a showing that the
Georgia capital punishment system operates in an arbitrary and capricious manner, [McCleskey]
cannot prove a constitutional violation by demonstrating that other defendants who may be
similarly situated did not receive the death penalty.”) (emphasis in original).
2010] RACE, DEATH AND DISPROPORTIONALITY 231
American society.'” Despite much progress since the 1960s, racial bias, at least
in unconscious form, still seems prevalent.’
Likewise, we cannot ignore the “absolute discretion’ conferred on
sentencers at the verdict stage of the penalty trial, even in post-Furman
systems.'* The need to assess deserts individually appears to be the most
plausible Eighth Amendment explanation for the Court to require an
individualized sentencing inquiry in all capital cases.'° However, there is no
consensus — certainly not one identifiable by the Court — about how sentencers
should assess deserts on an individualized basis, which is perhaps why the Court
has not required that jurors receive any instruction that truly directs them in how
to make that judgment. Because their ultimate assessment is so subjective,'”’ we
have good reason to suspect that their unconscious biases will sometimes
influence their conclusions.'** Thus, statistical studies only add to the inferences
that we already can draw from our existing knowledge of the risk that some of
their decisions will reflect racial bias.
In this light, even studies that find a risk that race influences the overall
selection process or prosecutorial decisions have relevance to the Eighth
Amendment question. Studies that find race effects in an overall selection
process raise misgivings that racial bias affects the sentencing stage.'”” Studies
that focus only on prosecutors and find a risk of racial bias also raise reasonable
sol24
122. Grutter v. Bollinger, 539 U.S. 306, 333, 338 (2003) (upholding affirmative action program
for admission of students at University of Michigan School of Law after noting that “race
unfortunately still matters” and acknowledging “our Nation’s struggle with racial inequality”).
123. See, e.g., Steve McGonigle et al., A Process of Juror Elimination: Dallas Prosecutors Say
They Don’t Discriminate, But Anal) Shows They Are More Likely to Reject Black Jurors,
DALLAS MORNING NEws, Aug. 21, 2005, at 1A (finding, based on sophisticated study that included
logistic regression analysis, that Dallas prosecutors continued to frequently use peremptory strikes
to exclude black prospective jurors because of their race).
124. Zant v. Stephens, 462 U.S. 862, 871 (1983).
125. Jurors may not always reach a deserts finding as a prerequisite to a death sentence. The
Supreme Court has not required that sentencing juries receive information about the substantive
question they ultimately are to answer in deciding whether to impose a death sentence.
Consequently, juries generally remain uninformed about whether the central issue concerns
offender deserts or a utilitarian question, such as whether a death sentence will deter other potential
offenders or at best incapacitate the defendant from committing acts of future violence. Likewise,
prosecutors are not prohibited at the sentencing trial from presenting evidence focused on
utilitarian issues, such as predictions of the offender’s future dangerousness, or from urging
utilitarian arguments for a death sentence, such as the need to deter future offenders. See Howe,
The Failed Case, supra note 9, at 834.
126. See Howe, The Futile Quest, supra note 9, at 2141-43. However, for a broader view of the
function of the hearing, grounded on virtue ethics, that has much to commend and that perhaps
could find acceptance as the Eighth Amendment explanation, see Huigens, supra note 20, at 1254-
57.
127. See supra notes 51-53 and accompanying text.
128. See, e.g., Turner v. Murray, 476 U.S. 28, 35 (1986) (“Because of the range of discretion
entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice
to operate but remain undetected.”).
129. See infra note 131.
232 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
suspicion.” If law-trained prosecutors often cannot put aside their racial
prejudices, we have reason to doubt that sentencing juries will almost always do
so.
When we see studies that indicate that race sometimes influences penalty-
phase juries, we are also hard-pressed to conclude that the bias is all about
mercy. The more intuitive view is that race influences some deserts decisions to
condemn, even if we cannot say which ones or how many. Such studies can give
us reason to doubt that all or almost all death sentences are deserved.'*!
In the end, statistical studies cannot prove indisputably that people
systematically receive death sentences that they do not deserve. Statistical
studies can only suggest that outcome. A belief that widespread racially-based
disproportionality occurs must rest in part on intuition, which some might call
“speculation.” The decision of the McCleskey majority that the Baldus study
was inadequate to establish an Eighth Amendment violation is at least plausibly
explained from this disproportionality perspective.’ The decision is not
convincingly explained on the view that the Baldus study was statistically valid
but failed to establish a serious risk of racially-based decision-making.'*
Nonetheless, one should not infer that the statistical studies have little influence
on the Supreme Court’s Eighth Amendment doctrine on capital punishment. The
following Part shows why that inference is inaccurate.
V. THE INFLUENCE OF THE STUDIES ON THE SUPREME COURT
Despite their limitations as proof of disproportionality, the statistical studies
on race in capital selection have influenced the Supreme Court. After Furman,
and even after McCleskey, concerns about racial bias have sometimes played an
animating, if unspoken, role in the Court’s effort to manage the death penalty.’
We might wonder whether the concern about racial bias has largely played itself
out. Attitudes about race have advanced and may continue to advance, resulting
in progressively more limited racial effects in capital selection.'** However, one
130. See infra note 131.
131. Regarding studies that identify race effects in prosecutorial decision-making but not in the
actions of penalty-phase jurors, we should also be wary of concluding an absence of
disproportionality, particularly if the study does not cover many variables in a highly sophisticated
way. Racial discrimination by decision makers earlier in the selection process complicates the
determinations whether capital sentencers have acted based on race. Bias in the selection of the
group subject to sentencer consideration can easily tend to mask the influence of race on the
sentencer. See, e.g., Gross & Mauro, supra note 96, at 46-48. For example, if prosecutors, based
purely on racial bias, charge certain capital defendants with more contemporaneous felonies, the
difference in the number of charged contemporaneous felonies could appear to explain on non-
racial grounds the actions of sentencing juries in more frequently sentencing members of that group
to death.
132. See McCleskey v. Kemp, 481 U.S. 279 (1986).
133. See id.
134. See infra Part V.A.
135. See infra Part V.A.
2010] RACE, DEATH AND DISPROPORTIONALITY 233
can reasonably doubt that the distorting effects will disappear soon. Moreover, I
believe that there is a plausible scenario under which a future Supreme Court
would be ready to limit the use of the death penalty to a small category of truly
extraordinary crimes. If that happens, the many statistical studies that have
suggested the existence of unconscious racial discrimination certainly will have
contributed to the outcome.
A, The Past
Concern about racial prejudice has played a central role in the Court’s effort
to regulate the death penalty under the Eighth Amendment. Anxiety over racial
bias helped spur the decision to strike down the death sentences in Furman.'*°
The Furman Justices were well aware of earlier statistical studies revealing
pronounced racial disparities in capital selection.” The brief per curiam
opinion in Furman did not address the claims of racial discrimination that the
petitioners had raised.'** However, among the five concurring Justices — who
each wrote a separate opinion in which no other Justice joined — Marshall and
Douglas referred explicitly to the problem of racial discrimination,'*’ and others
hinted that the standardless sentencing systems under review presented a
dangerous opportunity for racial discrimination." Indeed, many commentators
still assert that the decision was about inequality.'"' I believe the correct view, in
light of the Court’s subsequent decisions, is that Furman was about
disproportionality."” Still, Furman was about disproportionality resulting in
136. See, e.g., Graham v. Collins, 506 U.S. 461, 479 (1993) (Thomas, J., concurring) (“Furman
v. Georgia was decided in an atmosphere suffused with concern about race bias in the
administration of the death penalty . . . .”); Robert A. Burt, Disorder in the Court: The Death
Penalty and the Constitution, 85 MICH. L. REV. 1741, 1795 (1987) (“From its very beginning, the
charge of racism in the administration of the death penalty was often the text and always the subtext
of the abolitionist litigative campaign.”).
137. Only four years earlier, in Maxwell v. Bishop, 393 U.S. 997 (1968) (granting certiorari
limited to questions two and three), the Justices had confronted, but then avoided, a claim
supported by a major study showing racial bias in the use of the death penalty in rape cases. See
also Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968).
138, See Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
139. See id. at 364 (Marshall, J., concurring) (“Studies indicate that while the higher rate of
execution among Negroes is partially due to a higher rate of crime, there is evidence of racial
discrimination.”); id. at 257 (Douglas, J., concurring) (asserting that capital punishment as then
administered was “pregnant with discrimination” against minorities and the underprivileged).
140. See, e.g., id. at 310 (Stewart, J., concurring) (while concluding that “discrimination has not
been proved,” agreeing that “[m]y concurring Brothers have demonstrated that, if any basis can be
discerned for the selection of these few to be sentenced to die, it is the constitutionally
impermissible basis of race”); id. at 295 (Brennan, J., concurring) (“[OJur procedures are not
constructed to guard against the totally capricious selection of criminals for the punishment of
death.”).
141. See Howe, Furman’s Mythical Mandate, supra note 9, at 438-39 (noting some of the
commentary).
142. The McCleskey majority later viewed Furman and its progeny in this fashion, even though
it rejected the Baldus study as adequate proof of racially-based disproportionality. See McCleskey
234 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
part from racial bias, although also from poverty and the human frailties of those
charged with administering capital selection.’ The concern that racial bias
systematically tainted decisions to impose death in capital cases did not rest on
iron-clad, empirical proof,’ but on a dose of intuition, based on experience and
knowledge of history, combined with fragmentary statistical evidence,
particularly strong in rape cases, that suggested systematic poisoning. '“*
Concerns that underlay Furman also continued to influence the Court to
manage the use of the death penalty after Furman. The concurring Justices in
Furman had hoped that the decision would cause all states to abandon the capital
sanction.'“’ When the gamble failed,'“’ the Court faced a mess in determining
how to address the wave of new death-penalty statutes — many of them calling
for mandatory death penalties upon conviction — that state legislatures had
passed.'* The Court was unwilling to directly command the abolition of the
death penalty but was also unwilling to revert to its pre-Furman position of no
regulation.'” The latter course effectively would have endorsed the draconian
mandatory statutes that states had promulgated only in response to Furman.'*°
The compromise reached in 1976 was an imperfect effort to promote
proportional death sentences. A fractured Court voted to uphold statutes from
Georgia, Florida and Texas that allowed the defendant to make a separate
sentencing presentation and plea for his life, but to strike down mandatory death
penalties from North Carolina and Louisiana.'*' These decisions could not be
v. Kemp, 481 U.S. 279, 312 (1987) (“At most, the Baldus study indicates a discrepancy that
appears to correlate with race.”). The majority described Furman as grounded on a conclusion that
the death sentences at issue were “excessive” and not “proportionate to the crime.” /d. at 301. See
also Janet C. Hoeffel, ing the Eighth Amendment: Arbitrariness, Juries, and Discretion in
Capital Cases, 46 B.C. L. REV. 771, 787 (2005) (contending that the concurring Justices in Furman
were more concerned about “arbitrariness in an individual case” than with “arbitrariness between
cases” and, thus, “consistency was not, and has not been, the Court’s end goal”) (emphasis in
original).
143. See, e.g., Furman, 408 U.S. at 364-67 (Marshall, J., concurring).
144. Justice Stewart noted, for example, that a pre-Furman study sponsored by the Stanford
Law Review had found no substantial evidence of racial bias by capital-sentencing juries in
California. See id. at 310 (Stewart, J., concurring) (citing Note, A Study of the California Penalty
Jury in First-Degree-Murder Cases, 21 STAN. L. REV. 1297 (1969)).
145. See Wolfgang & Riedel, supra note 58, at 123-33.
146. See, e.g., JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 413-14 (1994).
147. Within four years, thirty-five states had passed new death penalty statutes, and nearly 400
persons had received death sentences under them. See id. at 414-16.
148. See id. at 422-30.
149. See id.
150. See id.
151. See Gregg v. Georgia, 428 U.S. 153 (1976) (Opinion of Stewart, J., Powell, J., and
Stevens, J.); id. at 207 (White J., concurring, joined by Burger, C.J., and Rehnquist, J.); id., at 227
(Blackmun, J., concurring); Proffitt v. Florida, 428 U.S 242 (1976) (Opinion of Stewart, J., Powell,
J., and Stevens, J.); id. at 260 (White J., concurring, joined by Burger, C.J., and Rehnquist, J.); id.
at 261 (Blackmun, J., concurring); Jurek v. Texas, 428 U.S. 262 (1976) (Opinion of Stewart, J.,
Powell, J., and Stevens, J.); id. at 277 (White J., concurring, joined by Burger, C.J., and Rehnquist,
2010] RACE, DEATH AND DISPROPORTIONALITY 235
reconciled convincingly with a characterization of Furman as a mandate for
consistency in capital selection.’ However, they could easily be reconciled
with a construction of Furman as focused on disproportionality — a
disproportionality caused in part by racial bias. The decisions appeared to
ensure that each capital offender could try to persuade the sentencer with
mitigating evidence and argument that he did not deserve the death sanction.’
This guarantee at least might lead to more accurate desert assessments'™ than the
truncated capital sentencing inquiry — generally in the context of a unitary trial —
that prevailed in the pre-Furman era.'* Hence, the concern about racial bias that
underlaid Furman also carried forward to help induce the first of two central
requirements in modern capital-sentencing law under the Eighth Amendment:
individualized capital sentencing.'*°
Since 1976, the Court has also developed a second important doctrine on
capital punishment — concerning categorical disproportionality'*’ — which also
seemed to stem in part from concerns about racial bias. The ground-breaking
case was Coker v. Georgia, in which the Court outlawed the death penalty as
categorically disproportional for the rape of an adult victim.'** The starkest
racial disparities in the use of capital punishment in the pre-Furman era had
J.); id. at 279 (Blackmun, J., concurring); Woodson v. North Carolina, 428 U.S. 280 (1976)
(plurality opinion); Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion).
152. See Howe, Furman’s Mythical Mandate, supra note 9, at 443-50.
153. See Woodson, 428 U.S. at 304 (invalidating mandatory death penalty upon conviction
because it precluded sentencer from considering “the possibility of compassionate or mitigating
factors stemming from the diverse frailties of humankind”).
154. Once we know not only the kind of offense a person has committed, but the circumstances
in which it was performed, whether he did it deliberately, the kind of pressures on him when he did
it, his whole psychological “set,” and a host of other factors, we have much more data for deciding
what he deserves than when we know only the type of crime he committed and then attempt to
correlate the gravity of that type of crime with the gravity of the punishment. John Hospers,
Retribution: The Ethics of Punishment, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION,
AND THE LEGAL Process 181, 190 (Randy E. Barnett & John Hagel III eds., 1977) (emphasis in
original).
‘A number of death-penalty scholars have contended, however, that the Court’s post-
Furman doctrine on the admission of mitigating evidence goes too far in that it allows the
defendant to present information that is not tied to his culpability for the capital crime. See, e.g.,
Katie Morgan & Michael J. Zydney Mannheimer, The Impact of Information Overload on the
Capital Jury's Ability to As: Aggravating and Mitigating Factors, 17 WM. & MARY BILL OF
Ris. J. 1089, 1134-36 (2009).
155. In the pre-Furman era, most death-penalty states employed unitary capital trials, in which a
jury resolved the questions of guilt and sentence after a single evidentiary proceeding, and, even in
states that had begun to employ bifurcated hearings, the breadth of evidence allowed on the
sentencing question was often quite limited. See Scott W. Howe, Reassessing the Individualization
Mandate in Capital Sentencing: Darrow’s Defense of Leopold and Loeb, 79 Iowa L. REV. 989,
1061-63 (1994).
156. See Carol S. Steiker, Furman v. Georgia: Not an End, But a Beginning, in DEATH PENALTY
Stories 95, 118 (John H. Blume & Jordan M. Steiker eds., 2009).
157. See id. (describing “the more recent proliferation of categorical exemptions” as the second
of the two profound changes caused by the Justices).
158. 433 U.S. 584 (1977).
236 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
existed for rape.’ Of the 455 men who were executed for that offense from
1930 to 1972, 405, or 89 percent, were black, and virtually all of the victims
were white." A study led by Professor Marvin Wolfgang that examined more
than two dozen variables in a large sample of the pre-Furman cases also found
no latent factors that could explain the racial disparities.'“' Coker was white,
and, when he filed his certiorari petition, the Court already had before it
certiorari petitions in two other rape cases from Georgia involving death
sentences imposed on black co-defendants for raping a white victim.” The
Court seemed to go out of its way to take the white-defendant case and then to
avoid discussing the history of race discrimination in capital rape
prosecutions.’ Despite these efforts at avoidance, however, the evidence of
disparities in rape prosecutions was extraordinarily powerful on the question of
whether racial bias systematically tainted sentencing decisions to condemn.’
The Justices could not have failed to appreciate the immediate consequence of
their decision in Coker. “Rape had always been the crime for which the race of
the defendant made the biggest difference, so Coker instantly wiped away more
discrimination than any reform of murder sentencing could have."
The racial-bias studies have also affected the Court’s rulings on jury
selection. Approximately one year after receiving McCleskey’s certiorari
petition setting forth the conclusions of the Baldus study and two months before
granting it," the Court decided Turner v. Murray’ and Batson v. Kentucky.'®
Both decisions overruled well-settled precedent. Turner held that a capital
defendant charged with an interracial murder can inform potential jurors of the
race of the victim and can question them about racial bias.'® Batson limited the
ability of prosecutors in cases involving minority defendants to use peremptory
strikes to eliminate prospective jurors of the defendant’s race.'” The Court did
not mention the Baldus study in its opinions in these cases.'”’ However, the
159. See Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past, in
DEATH PENALTY STORIES 171, 192-93 (John H. Blume & Jordan M. Steiker eds., 2009).
160. See id. at 193.
161. See Wolfgang & Riedel, supra note 58, at 126-33.
162. See Johnson, supra note 159, at 195.
163. See Johnson, supra note 159, at 195-96.
164. See Johnson, supra note 159, at 193-96.
165. STUART BANNER, THE DEATH PENALTY: AN AMERICAN History 289 (2002).
166. McCleskey filed his petition in May, 1985, but the Court did not grant it until July 7, 1986,
which represents an extremely unusual delay. See McCleskey v. Kemp, 478 U.S. 1019 (1986) (cert.
granted). The Turner and Batson decisions were both argued on December 12, 1985 and decided
on April 30, 1986. See 476 U.S. 28 (1986); 476 U.S. 79 (1986).
167. 476 U.S. 28 (1986).
168, 476 U.S. 79 (1986).
169, 476 U.S. 28 (1986).
170. 476 U.S. 79 (1986).
171. See Turner, 476 U.S. 28; Batson, 476 U.S. 79.
2010] RACE, DEATH AND DISPROPORTIONALITY 237
timing of the decisions in relation to the presentation of the study to the Justices
could hardly have been coincidence.'”
The concern about racial bias that helped explain Furman and Coker is also
not easily divorced from the Court’s more recent confinement of the death
penalty on disproportionality grounds. Since 2002, the Court has issued three
disproportionality rulings that have exempted large numbers of offenders from
capital punishment. In 2002, the Court protected mentally retarded offenders in
Atkins v. Virginia." In 2005, juvenile offenders gained protection in Roper v.
Simmons.‘ In 2008, in Kennedy v. Louisiana, the Court exempted offenders
convicted of child rape.’ Before these decisions, jurors were permitted to
determine the deserts of capital offenders in these groups through individualized
assessment at the capital sentencing trial.” The Court’s recent rulings reflect its
distrust in the reliability of that endeavor, a distrust that is not entirely separate
from the Court's historical concern over racial bias in capital sentencing.'”” The
Court came closest to acknowledging the connection in Kennedy, in which a
five-Justice majority admitted “no confidence” that use of the death penalty to
punish child rape could avoid the same problem that confronted the Court in
Furman.'*
In the end, racial-bias studies have affected the Court in its development of
modern Eighth Amendment law governing the use of the death penalty. As
Professor Carol Steiker has noted, “[t]he two most profound changes to the
practice of capital punishment that have ensued under the Eighth Amendment
have been 1) the absolute protection of individualized capital sentencing, and 2)
the more recent proliferation of categorical exemptions of groups of offenders
and offenses from execution... .”'” She also has explained that “the
intellectual and doctrinal origins of these developments” lie in the Furman
decision,’ particularly in the notions of “human dignity” and “excessiveness”
172. The Court has also recently reversed two death sentences on Batson grounds. See Snyder
v. Louisiana, 552 U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 231 (2005).
173, 536 U.S. 304 (2002).
174, 543 U.S. 551 (2005).
175, 128 S. Ct. 2641 (2008).
176. See supra Part Il.
177. No doubt other factors as well, such as the large number of death row inmates exonerated
based on DNA evidence beginning in the 1990s, contributed to a revived concern both within
American society and within the Court over the use of the death penalty in these cases. See
Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 35-57 (2007).
178, 128 S. Ct. at 2661.
179, See Steiker, supra note 156, at 118. The third doctrine that makes up the Court’s Eighth
Amendment regulation of capital selection is the requirement that a state narrow the group of
offenders eligible for the death penalty. See, e.g., Godfrey v. Georgia, 446 U.S. 420 (1980). This
doctrine has turned out to be of minor significance and lacks a good explanation. However, it is
more plausibly explained as an effort to promote proportionality than as an effort to promote
consistency. See Howe, The Failed Case, supra note 9, at 833.
180, Steiker, supra note 156, at 118.
238 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
developed in the opinions of Justices Brennan and Marshall.'*' Both doctrines,
as we have seen, appeared to be spurred in part from concerns about
disproportionality based on race. One might wish that the Court had more
directly and aggressively confronted the problem of racial bias in capital
sentencing, starting with Furman. Nonetheless, we should not conclude that the
Court has been oblivious.
B. The Future
Abolition of the death penalty is probably not imminent, but the Court may
well continue to narrow the application of the penalty to exclude the least
culpable murderers from death eligibility. Various observers, including Justice
Stevens, have long promoted a narrowing of the application of the sanction to the
worst murderers as a way to reduce the influence of racial prejudice in the use of
the penalty.’ There also remain easily identifiable categories of marginal
capital cases for which abolition of the death penalty would promote
proportionality and, perhaps, less racial disparity.
Two areas that call for categorical protections immediately come to mind.
First, after the Hinckley acquittal,'** several states passed legislation to eliminate
the insanity defense.’ Other states narrowed their test of insanity to a point that
was even more restrictive than the traditional M’Naghten test.'** Given these
changes, a risk arises that some offenders who would qualify as insane in most
181. Steiker, supra note 156, at 118-23.
182. See McCleskey v. Kemp, 481 U.S. 279, 367 (1987) (Stevens, J., dissenting) (“If Georgia
were to narrow the class of death-eligible defendants to [categories of highly aggravated murders],
the danger of arbitrary and discriminatory imposition of the death penalty would be significantly
decreased, if not eradicated.”); BALDUS STUDY, supra note 2, at 386 (“[B]y declining to endorse
such a system, the Supreme Court majority acted so as to preserve the ability of the state to impose
death sentences in cases in which death sentences usually do not occur.”).
183. John Hinckley was acquitted after wounding President Reagan and several other persons in
a failed assassination attempt. The jury acquitted Hinckley because, based on the American Law
Institute’s (ALI) instruction on insanity that was required by federal law, there was a reasonable
doubt about Hinckley’s sanity during the incident. The ALI standard provides that “A person is
not responsible for criminal conduct if at the time of such conduct as a result of mental disease or
defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law.” See PHILLIP E. JOHNSON & MORGAN CLOUD,
CRIMINAL LAW: CASES, MATERIALS AND TEXT 327-28, 323-24 (7th ed. 2002).
184. These states have abolished the insanity defense but allow a defendant to offer evidence of
a mental illness or defect to disprove the existence of the mental state required as an element of the
crime. See, e.g., IDAHO CODE § 18-207 (2008); MonT. CODE ANN. § 46-14-102 (2007); UTAH
CODE ANN. § 76-2-305(1) (2008).
185. The M’Naghten test permits acquittal only when it is proved that, “at the time of the
committing of the act, the party accused was laboring under such a defect of reason, from disease of
the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that
he did not know he was doing what was wrong.” M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).
Many states have narrowed their insanity tests even further than the M’Naghten test by
restricting the types of mental defects and illnesses that would make a defendant eligible for the
insanity defense. See, e.g., ARIZ. REV. STAT. § 13-502 (2008).
2010] RACE, DEATH AND DISPROPORTIONALITY 239
states could suffer both a conviction and a sentence of death. If such a case
comes before the Supreme Court, the Justices could easily conclude that an
exemption from the death penalty based on disproportionality should apply for
offenders who were insane at the time of their crimes under nationally prevailing
definitions of insanity.
The Justices could also confine the death penalty to a more restricted
category of murders. The Court has done little to protect relatively low-
culpability offenders who currently qualify for death eligibility based on the
felony-murder doctrine. A small fringe of offenders who are guilty of felony
murder only through vicarious-liability doctrines are protected if they did not act
recklessly or were not substantially involved in the felony.'** Yet, many other
persons who are guilty of murder and eligible for the death penalty because they
committed a contemporaneous felony are of relatively low culpability.'*”
Restricting the application of the death penalty to murderers who acted with a
premeditated and deliberated intent to kill would help confine the death penalty
to a group of the more deserving offenders.’
Statistical studies that show racial effects in the decisions of penalty-phase
juries in marginal categories might help to support an exemption. For example,
cases in which the defendant lacked a premeditated and deliberated intent to kill
might involve substantially more race-of-victim discrimination than cases in
which the defendant possessed that mental state. If this is so, that kind of
evidence could influence the Court, just as statistical studies on racial effects
surely influenced the Court in Coker.'? The Court might not use the study as the
principal evidence of disproportionality or even mention it. The evidence also
would surely not reflect the virulent discrimination that existed regarding rape in
the pre-Furman era.'”’ Nonetheless, the evidence could help the Court see the
benefits of the categorical protection.
Predicting how far the Court eventually could go in narrowing the use of the
death penalty under the Eighth Amendment requires, like predicting judicial
abolition, major assumptions about changes in the composition of the Court and
continuing change in the states’ use of the sanction. However, the question
about narrowing suggests alternative outcomes that the question about total
abolition does not. Pursuit of narrowing suggests, for example, that the Court
could eventually reject the death penalty as categorically disproportional for
186, The Court articulated the breadth of this exemption in Tison v. Arizona, 481 U.S. 137
(1987), which narrowed earlier rulings in Enmund y. Florida, 458 U.S. 782 (1982) and Cabana v.
Bullock, 474 U.S. 376 (1986).
187. See, e.g., McCord, supra note 50, at 3 (noting that the prevailing model of death eligibility
“allows prosecutors to push for the death penalty for many relatively commonplace murders, rather
than only for the most depraved murders”).
188, For a more nuanced approach that could work well, if states were willing to pursue it on
their own, see McCord, supra note 50, at 44-50.
189, See supra notes 157-65 and accompanying text.
190. See Johnson, supra note 159, at 192-93.
240 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
aggravated murder but except a category of egregious crimes against the state
and against humanity. Such an outcome would avoid arguments, based on
language in the Fifth and Fourteenth Amendments contemplating capital
punishment,’”' that total abolition by the Court is unconstitutional.'” Likewise,
it would allow the death penalty to carry real meaning in staking out the “worst
of the worst” offenders;'”* the act of Timothy McVeigh would fall in a separate
class from a robbery of a liquor store gone awry. Finally, it would still answer in
a meaningful way the concern about disproportionality based on race and
poverty and the human frailties of those who influence capital selection that
underlay Furman.'”*
CONCLUSION
The influence of unconscious racial bias in capital selection remains a
serious concern for the use of the death penalty. Claims brought under the
Eighth Amendment can express some of this concern. The prohibition on cruel
and unusual punishments forbids disproportional death sentences, and evidence
that some death sentences rest on deserts findings poisoned by unconscious
racial bias amounts to evidence of disproportionality in the use of capital
punishment. Because the “deserts limitation” embodied in the Eighth
Amendment is unidirectional, however, this kind of claim cannot address all of
the racial bias that affects capital selection. Given also the Supreme Court’s
conclusion in McCleskey that equal protection principles apply only to
purposeful discrimination, there remains much room for action by legislatures
and state courts interpreting state constitutions to promote greater fairness in
capital selection.'* One might wish that the Supreme Court would have done
191, The Fifth Amendment provides in pertinent part:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law...
U.S. Const. amend. V.
The due process clause in the fourteenth amendment provides: “[NJor shall any State
deprive any person of life, liberty, or property, without due process of law. . . .” U.S. Const.
amend XIV, § 1.
192. See, e.g., Baze v. Rees, 128 S. Ct. 1520, 1552-53 (2008) (Scalia, J., concurring in the
judgment) (rejecting argument by Justice Stevens for abolition by the Court and noting that death
penalty is “explicitly sanctioned by the Constitution”).
193. Kansas v. Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting).
194. These concerns find eloquent expression in the Furman opinion of Justice Marshall. See
Furman v. Georgia, 408 U.S. 238, 363-68 (1972) (Marshall, J., concurring).
195. The Kentucky Racial Justice Act represents one of the few legislative efforts to promote
such fairness. See Ky, REV. STAT. ANN. § 532.300 (West 2009). North Carolina also recently
2010] RACE, DEATH AND DISPROPORTIONALITY 241
more under the U.S. Constitution. However, we should not conclude that the
Court has been unaffected by concerns about racial bias or that it has taken no
meaningful action. Particularly through its decisions finding categorical
disproportionality, the Court has protected a significant group of offenders from
the capital sanction. Some of these decisions bear a strong connection to
concerns about disproportionality caused by racial prejudice.
The Court may well continue to narrow the application of the capital
sanction. Evidence of racial bias has served as a symptom for a deeper problem
with our capital punishment systems. The deeper problem is the risk of
disproportionality caused by a variety of circumstances that conspire to prevent
accurate desert assessments of those who receive death sentences.'"° These
circumstances include not only the numerous biases of the decision makers
regarding defendants and victims but the often poor quality of lawyering and
judging and the imperfection of witnesses.'” The existence of these problems
calls for a humility in judging criminals, which, in turn, warrants, if not abolition
of the death sanction, at least extraordinary restraint in its application.
passed a Racial Justice Act for death-penalty cases that differs somewhat from the Kentucky
statute. See 2009 N.C. Sess. Laws 464 § 15A-2010.
196. These factors make “caprice and mistake” in the imposition of death inevitable. See
generally CHARLES L. BLACK JR., CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND.
MISTAKE (2d ed. Augmented 1981).
197. Regarding the problem of poor trial counsel in capital cases, see David R. Dow, Bell v.
Cone: The Fatal Consequences of Incomplete Failure, in DEATH PENALTY STORIES, 389, 414 (John
H. Blume & Jordan M. Steiker eds., 2009) (“If one is looking for actual cases to demonstrate that
the very arbitrariness which led the Court in Furman to strike the death penalty down still
rampages through the machinery of death, one need not look much further than [the Court’s cases
on ineffective assistance of counsel].”).
THE CONTINUING ROLE OF RACE IN CAPITAL CASES,
NOTWITHSTANDING PRESIDENT OBAMA’S ELECTION
Ronald J. Tabak’
Ronald J. Tabak spoke at the Northern Kentucky Law Review's Fall
Symposium: Race and the Death Penalty, which was held on October 17, 2009.
The following is based primarily on the speech Mr. Tabak gave during the
Symposium.
This speech concerns the implications, both in death penalty advocacy and in
representing those facing possible execution, of the now common belief that
racism no longer plays a significant role in our capital cases.
I. INTRODUCTION
A. The End of Segregation and the Belief that Racism Was No Longer a Real
Problem
I first experienced this belief in the late 1980s, when I was representing a
death row inmate from Georgia’ named Johnny Lee Gates.’ He had been
convicted and sentenced to death in 1977, little more than a decade after
* Ronald Tabak is Special Counsel at Skadden, Arps, Slate, Meagher & Flom LLP, whose
pro bono program he coordinates. He has chaired or co-chaired the Capital Punishment Committee
of the American Bar Association Section of Individual Rights & Responsibilities for over two
decades. He is a former chair of the Committee on Civil Rights of the Association of the Bar of the
City of New York. Among the numerous death row inmates he has represented is Johnny Lee
Gates of Georgia, Mr. Tabak is a 1974 graduate of Harvard Law School and clerked for U.S.
District Judge John F. Dooling, Jr., E.D.N.Y.
Because Mr. Tabak did not prepare a conventionally written and footnoted law review
article, many of the footnotes that now appear were added by law review members. Mr. Tabak,
while providing many footnotes, has not independently reviewed most of the ones that were added
by the law review.
1, Gates v. Zant, 863 F.2d 1492, 1494 (1th Cir. 1989).
2. Gates was originally convicted and sentenced at State vy. Gates, No. 38355 (Muscogee
County Cir. Ct. Nov. 30, 1977), aff'd, 261 S.E.2d 349 (Ga. 1979), cert. denied, Gates v. Georgia,
445 U.S. 938 (1980). The state habeas corpus petition was denied in an unpublished opinion on
Jan. 16, 1981, in the Superior Court of Butts County, Georgia. The Georgia Supreme Court denied
the application for probable cause to appeal without a written opinion on May 14, 1981. The U.S.
Supreme Court denied certiorari. Gates v. Zant, 463 U.S. 1213 (1983), reh’g denied, 463 U.S.
1249 (1983). After Mr. Gates exhausted all state remedies, the Middle District of Georgia denied
all relief in an unpublished opinion on Sept. 12, 1985. The timely motion for amendment of the
judgment was subsequently denied in an unpublished order on Oct. 8, 1987. The motion for a
certificate of probable cause was granted on Nov. 9, 1987. The habeas corpus appeal decision
denying relief is reported at Gates v. Zant, 863 F.2d 1492 (1th Cir. 1989), reh’g denied, 880 F.2d
293 (1989) (per curiam), cert. denied, 493 U.S. 945 (1989). See also Ronald J. Tabak,
Representing Johnny Lee Gates, 35 U. TOL. L. REV. 603, 603 n.1 (2004).
244 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
enactment of the 1964 civil rights law, by an all-white jury, in a community
where African Americans constituted about thirty percent of the population.’
In Gates v. Zant, the federal habeas corpus proceeding, undisputed evidence
showed a significant disparity between the percentage of African Americans in
the age groups from which jurors could be selected and the percentage of
African Americans on the jury rolls from which trial jurors were selected.‘
When I represented Mr. Gates in his Eleventh Circuit appeal, the court found
that we had established a prima facie case of unconstitutional racial disparity in
jury composition.° Thus, if the court had considered the merits of Mr. Gates’
constitutional claim, it would have required the State to rebut the prima facie
case by explaining how and why this great disparity came about.’ However, the
Eleventh Circuit refused to consider the merits of this constitutional claim‘
because his trial lawyer failed to challenge the constitutionality of the jury rolls.”
Mr. Gates’ trial lawyer testified in the state post-conviction proceeding, '°
and when asked why he did not object at or before the 1977 trial, he provided
two reasons.'' First, he stated that he did not know enough about the
constitutional law on racial disparity in jury rolls to have made a challenge.'*
Second, he said that even if he had known enough about the constitutional law,
he still would not have objected."* He explained that he and other defense
counsel believed that racial disparity relating to jury composition should not be
attacked.'* They believed that winning such a claim would do “more harm than
3. Gates, 880 F.2d at 293-94; Gates, 863 F.2d at 1497-98; see also David V. Baker,
Purposeful Discrimination in Capital Sentencing, 5 J.L. & SOC. CHALLENGES 189, 219 (2003).
4. Gates, 863 F.2d at 1498 (noting Gates’ argument that if his trial attorney had “researched
the matter thoroughly, he would have discovered a statistical disparity of at least 13% between the
percentage of blacks in Muscogee County as a whole and the percentage of blacks on the jury
list”).
5. See id. at 1492.
6. Id. at 1498 (stating “by making these allegations [the trial attorney] could have stated a
prima facie case of jury discrimination”).
7. See Duren v. Missouri, 439 U.S. 357, 367-68 (1979).
8. Gates, 863 F.2d at 1500.
9. Id.
10. Id. at 1497.
ll. Id.
12. Gates, 880 F.2d at 294 (Clark, J., dissenting) (noting that in Gates’ trial attorney’s post-
conviction deposition, he testified that “[he did] not understand that [percentage disparities] ha[d]
ever been held to be basis of setting aside the Grand Jury array or petit jury” (/d. at n.1);
concluding that “Cain [the trial attorney] may have been generally aware of the availability of jury
composition challenges, but the facts of this case reveal that he was not aware that such a challenge
was available in Muscogee County” (Id. at 294); suggesting that Cain’s statements “[demonstrate]
that Cain misunderstood the law upon which he could have based a successful prima facie claim of
jury discrimination in Gates’ case” (Id. at n.1)).
13. Id. at 295; Gates, 863 F.2d at 1497 (noting Cain’s testimony that “he believed that such a
challenge might alienate the jury that eventually would be empaneled to try the case”).
14. Gates, 880 F.2d at 296 (“Cain asserted that he did not challenge the jury composition
because it was known among the criminal defense attorneys in the county that it was not ‘the thing
2010] ROLE OF RACE IN CAPITAL CASES 245
good” because some people who would nonetheless end up on the jury would be
prejudiced against the defendant for having exposed the racial disparity.'*
At the Eleventh Circuit argument, I pointed out what had occurred during
segregation, which had officially ended not long before the 1977 trial.'* During
that time, when a trial lawyer failed to object due to fear of the resulting
prejudice against the defendant — what the courts referred to as a “Hobson’s
choice of evils”!” — the fact that the lawyer faced that choice was deemed to be a
sufficient reason for post-conviction consideration of the merits of the
constitutional claim.'* But the Eleventh Circuit essentially stated in 1988 that
constitutional claims of racial discrimination in jury composition must always be
made according to state procedure; no matter how meritorious, they cannot be
raised for the first time in post-conviction, even when a fearful trial lawyer faces
what he believes to be a Hobson’s choice of evils."
B. Federal Legislation and Racism in Capital Cases
In the late 1980s and the early 1990s, the belief that courts and legislative
bodies no longer had to address issues of racial disparities in the context of
capital punishment came to the forefront. In 1991, I testified before the Senate
Judiciary Committee a few years after losing Mr. Gates’ appeal.”” I spoke on
behalf of the American Bar Association” in favor of the proposed federal
to do”); see also Gates, 863 F.2d at 1497 (noting a “consensus of many of the other leading
criminal lawyers in the area that such challenges were not in the best interest of defendants”).
15. Gates, 880 F.2d at 296 (quoting trial counsel’s testimony in post-conviction deposition);
see also id. at 295 (noting trial attorney’s concern “that the jury that eventually tried Gates would
become alienated against Gates if they became aware that a challenge to the county jury list had
been made”); see also Gates, 863 F.2d at 1497.
16. See Gates, 880 F.2d at 295 (discussing Judge Wisdom’s theory of Hobson’s choice of evils
for black defendants tried by all-white juries (citing Whitus v. Balkcom, 333 F.2d 496 (Sth Cir.),
cert, denied, 379 U.S. 931 (1964))).
17.. The “Hobson’s choice of evils” is the defendant’s choice between being prejudiced by the
“hostility the attack on the all-white jury system would stir up” or “by being deprived of a trial by a
jury of their peers selected impartially from a cross-section of the community.” Id. at 295 (quoting
Whitus, 333 F.2d at 498).
18. Id. (citing Whitus, 333 F.2d at 498).
19. Gates, 863 F.2d at 1500 (holding that, according to Georgia criminal law, a criminal
defendant who fails to make a timely jury challenge at trial is barred from raising the issue at a later
state proceeding (citing Ga. Cope ANN. §§ 15-12-162, 9-14, 42(b) (2009); holding that a
defendant that is precluded from raising an issue at an appellate proceeding in state court is also
barred from raising the issue in a federal habeas proceeding except for a showing of cause and
actual prejudice (citing Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72
(1977)); finding that the trial attorney’s assistance was not ineffective and Gates therefore lacked a
showing of cause and actual prejudice).
20.135 CONG. REC. D1100-02 (1989) (concluding Senate Judiciary Committee hearings on
proposed legislation to establish certain criteria for the imposition of the death penalty for federal
crimes, focusing on racial discrimination, and including the testimony of Ronald J. Tabak,
representative of the American Bar Association).
21. Id.
246 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Fairness In Death Sentencing Act of 1991 (the “Fairness Act”). Part of what I
addressed was the assertion that an effective Racial Justice Act” (the earlier title
of what became the proposed Fairness Act) was incompatible with a death
penalty.” I pointed out that the death penalty could continue to exist if the
Fairness Act were enacted, if real proportionality review and various other
reforms were initiated.’°
I was dismayed thereafter to read in the Congressional Record that Senator
Dixon of Illinois had concluded on the basis of my testimony that he should
oppose the Fairness Act.° Senator Dixon stated that the legislation was
unnecessary because during my testimony I had mentioned various reforms that
would address racial discrimination while permitting the continued existence of
the death penalty.””
Thereafter, when I turned my testimony into a law review article,”* I argued
that Senator Dixon’s logic was akin to saying, in 1963, that the Civil Rights Act
of 1964 and the Voting Rights Act of 1965 were unnecessary because the
southern states could eliminate segregation if they felt like doing so.” But these
22. Fairness in Death Sentencing Act of 1991, H.R. 2851, 102d Cong, (1991). See Ronald J.
Tabak, Is Racism Irrelevant? Or Should the Fairness In Death Sentencing Act Be Enacted to
Substantially Diminish Racial Discrimination in Capital Sentencing?, 18 N.Y.U. REV. L. & Soc.
CHANGE 777, 779 (1990-91) (summarizing the impact of the Fairness in Death Sentencing Act of
1991).
23. See Racial Justice Act of 1988, H.R. 4442, 100th Cong. (1988) (intended to prohibit the
imposition or the carrying out of the death penalty in a racially disproportionate pattern).
24. 134 ConG. REC. $7558-59 (1988) (Sen. McClure argued to the Senate Judiciary
Committee that the Racial Justice Act would end capital punishment); see Vada Burger et al.,
Comment, Too Much Justice: A Legislative Response to McCleskey, 24 HARV. C.R.-C.L. L. REV.
437, 465-70 (discussing Sen. McClure’s objections to the Racial Justice Act); see also Tabak,
supra note 22, at 803-05 (arguing against the belief that an effective Racial Justice Act would
effectively terminate the imposition of the death penalty); see also id. at 797 (“The proposed
Fairness in Death Sentencing Act would not eliminate the death penalty. It would affect only cases
in which (a) a valid statistical showing is made of racial discrimination in the imposition of the
death penalty and (b) the death row inmate shows that his case fits the proven pattern of racial
discrimination and is not explainable by other, nonracial factors. Thus, entire categories of cases
would continue to exist in which a death sentence was based on valid, nonracial factors. These
cases would not be affected by the proposed Act.”).
25. See Tabak, supra note 22, at 789-98, 803-04.
26. 136 CONG. REC. $6873-03 (1990) (statement of Sen. Dixon).
27. Id.; see Tabak, supra note 22, at 793-96 (suggesting various measures to address the
pattern of racial discrimination in capital sentencing on which Sen. Dixon relied in developing his
argument against the Fairness Act, including states providing clearer guidance to prosecutors as to
when it is appropriate to seek the death penalty; taking steps to make it more likely that trial
attorneys ask jurors questions about race, such as requiring judges to ask defendants if they would
prefer questions on race; requiring private, individual voir dire of prospective jurors in capital cases
when asking racially sensitive questions; true proportionality review by state appeals courts; and
clemency proceedings in which race-of-victim discrimination would be basis for granting
clemency).
28. See Tabak, supra note 22.
29. Tabak, supra note 22, at 804-05.
2010] ROLE OF RACE IN CAPITAL CASES 247
states were not going to eliminate segregation without federal legislation.*°
Similarly, it was highly unlikely that states would adopt reforms in the absence
of either the proposed federal Fairness Act or a state racial justice act.*'
So, the belief that courts and legislative bodies were no longer required to
address issues of racial disparities in the context of capital punishment
continued, and this attitude has become even more pronounced over time,
particularly in the wake of President Obama’s election.”
C. The Adverse Effects of President Obama’s Election and Some of His Actions
As Christina Swarns, the leader of the capital punishment and criminal
justice practice at the NAACP Legal Defense and Education Fund (“LDF”), has
noted, many critical players in the criminal justice system, whether they are
legislators, district attorneys, federal prosecutors, defense lawyers or jurors,
believe in the post-racial rhetoric.’ And she has noted that this belief has been
aggravated by some of what President Obama has himself done.™*
For example, as a presidential candidate, Mr. Obama denounced the
Supreme Court for holding in Kennedy v. Louisiana** that it is unconstitutional
to have the death penalty for non-homicide crimes committed against
individuals.” As a result, many people will infer that if even President Obama
thinks the death penalty is acceptable in such situations, then a serious concern
about racial disparities in the context of capital punishment cannot exist.
Furthermore, litigation efforts on behalf of people facing potential execution
may be undercut by President Obama’s life experiences. He overcame many
obstacles, including living in a single-parent household; being the product of a
bi-racial marriage, which would have been illegal at that time in many of our
states; and overcoming drug use.” This success may make it more difficult for
30. Tabak, supra note 22, at 804-05.
31. Tabak, supra note 22, at 804-05.
32. See Interview by Innocence Project, Inc. with Christina Swarns, Director, Criminal Justice
Project, NAACP Legal Defense and Educational Fund, in 5 THE INNOCENCE PROJECT IN PRINT 1,
16-17 (Summer 2009), available at _ http://www. innocenceproject.org/Images/2140/
ip_summer2009.pdf [hereinafter Jn Their Own Words].
33. Christina Swarns, The Uneven Scales of Justice: How race and class affect who ends up on
death row, The American Prospect (June 18, 2004), available at http:/Avww.prospect.org/cs/
articles?article=the_uneven_scales_of_capital_justice.
34. In Their Own Words, supra note 32.
35. Kennedy v. Louisiana, 129 S. Ct. 1 (2008).
36. See Jim Geraghty, What Does Obama Think of Kennedy v. Louisiana? (UPDATED),
NATIONAL REVIEW ONLINE, June 25, 2008, http://campaignspot.nationalreview.com/post/
2q=Y 2E3MTc3 YTEyY 2M0Y TQOOWQ4ZmlxZjk3ZTAWZTA1OGM-= (last visited Mar. 12, 2010)
(quoting then-Sen. Obama: “I disagree with the decision. I have said narrow circumstances for the
most egregious of crimes. The rape of a small child, 6 or 8 years old, is a heinous crime and if a
state makes a decision that under narrow, limited, well-defined circumstances that the death penalty
can be pursued, that that [sic] does not violate the Constitution”).
37. BARACK OBAMA, DREAMS FROM My FATHER: A STORY OF RACE AND INHERITANCE 5-10
(Crown Publishers 2004) (1995).
248 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
juries to give proper mitigating weight to evidence regarding defendants with
somewhat similar backgrounds to the President, but who failed to overcome their
difficult circumstances and instead participated in capital crimes.
However, President Obama’s election actually tends to undercut the claim
that we are now a society free from racial discrimination. In several “Deep
South” states, he received a lower percentage of the white vote than did Senator
Kerry in 2004, even though Senator Kerry nationally received a much lower
percentage of both the overall and the white vote than Mr. Obama.** A study by
Professors Persily, Ansolabehere and Stewart also found that Obama received
75% of the white Democratic vote, as compared to Kerry’s 82%, in states
covered by Voting Rights Act Section 5,” whereas both Obama and Kerry
received 85% of the white Democratic vote in the non-covered states.”
Therefore, while President Obama’s statements and background may impact
racism in the death penalty, his election emphasizes the apparent existence of
racial patterns in United States elections.
D. Racial Discord Helps Explain this Country's Increasing Isolation in Keeping
the Death Penalty
A report for the American Law Institute (“ALI”), written by Professors Carol
and Jordan Steiker, provides a strong basis for disregarding the post-racial
rhetoric, at least in the context of capital punishment.*' In response to their
report about the death penalty, in 2009 the ALI revoked its past standards on the
death penalty and decided not to attempt to develop new standards on how to
implement the death penalty fairly because it is too fundamentally flawed.”
The Steikers’ report states that “broad scholarly literature often
highlights ... racial discord” in this country as an “important explanatory
variable” of why the United States continues to be so unusual among Western
38. Nathaniel Persily et al., Race, Region, And Vote Choice in the 2008 Election: Implications
For The Future Of the Voting Rights Act, 123 Harv. L. REV. (forthcoming Apr. 2010) (manuscript
at 19, on file with author), available at _hittps://www.law.columbia.edu/
null?exclusive=filemgr.download&id=153794.
39. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006, 42 U.S.C. § 1973 (2006).
40. Persily et al., supra note 38, at 19 (noting additionally that one of the principal purposes of
the Voting Right Act Section 5 is to deter covered states from committing constitutional violations
of minority voting rights (Id. at 10-11).
41. See CAROL S. STEIKER & JORDAN M. STEIKER, REPORT TO THE ALI CONCERNING CAPITAL.
PUNISHMENT, in THE AMERICAN LAW INSTITUTE, REPORT OF THE COUNCIL TO THE MEMBERSHIP OF
THE AMERICAN LAW INSTITUTE ON THE MATTER OF THE DEATH PENALTY Annex B (Apr. 15, 2009,
on file with author), available at http://www.deathpenaltyinfo.org/documents/alicoun.pdf.
42. Steiker Study Inspires Withdrawal of Death Penalty Section from Model Penal Code,
Harvard Law School, Jan. 7, 2010, _http://www.law.harvard.edu/news/spotlight/criminal-
law/07_steiker.html (last accessed Mar. 12, 2010); see Franklin E. Zimring, Opinion, Pulling the
Plug on Capital Punishment, NatiL L. J., Dee. 7, 2009, available at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202436026535&slreturn=1 &hbxlogin=1 (last
visited Mar. 12, 2010).
2010] ROLE OF RACE IN CAPITAL CASES 249
democracies with regard to the death penalty.’ These studies point to the
overwhelming percentage of American executions taking place in the South and
states bordering the South as evidence of the racial discord." These were the
last states to desegregate and were the “most resistant” to civil rights laws.”
Thus, these states are the most likely to have people affected by the problems
occurring in the lynching days that Professor Melynda Price has discussed at this
conference“ and that remain very real to the people who were, and are still,
there.
Il. THE DEATH PENALTY CONFERENCES AT AIRLIE HOUSE
What I discuss below is not based on original knowledge or my research.
Rather, it is based mostly on notes I took at the NAACP Legal Defense Fund’s
(“LDF”) annual death penalty conferences at Airlie House in Warrenton,
Virginia.’
A. Explicit Versus Implicit Bias
First, I address several impacts of racial attitudes on various actors in the
judicial system. In that regard, it is important to delineate between explicit bias
and implicit bias. Explicit bias is much less likely to occur, either in jury
selection or otherwise, because people rarely make overtly racially-biased
statements in court.
Bryan Stevenson of the Equal Justice Initiative and NYU Law School has
noted that sometimes people will overtly reveal their racial bias, if they feel
comfortable or if they respond quickly and automatically to questions.“* For
example, Stevenson discussed an expert witness who was discussing future
dangerousness, which is an aggravating factor in some states and is considered
as aggravating by jurors in many other states.” This expert said that the death
43. STEIKER & STEIKER, supra note 41, at Annex B, p. 28-29; see also Carol S. Steiker, Capital
Punishment and American Exceptionalism, in American Exceptionalism and Human Rights, ed.
Michael Ignatieff (2005).
44. STEIKER & STEIKER, supra note 41, at Annex B, p. 29.
45. STEIKER & STEIKER, supra note 41, at Annex B, p. 29.
46. Melynda J. Price, Assoc. Professor, University of Kentucky College of Law, Address at the
Northern Kentucky Law Review Fall Symposium: Race and the Death Penalty (Oct. 17, 2009)
(discussing symbols of historical racial discrimination and brutality that can exist in communities).
47. The Airlie Conference is sponsored annually by the Legal Defense Fund as part of its work
with issues involving Capital Punishment. For more information on the Legal Defense Fund and
current death penalty issues with which it is involved, see NAACP Legal Defense and Educational
Fund, Inc., http://www.naacpldf.org/issues.aspx?issue=I I (last visited March 28, 2010).
48. See Bryan Stevenson, Executive Director Equal Justice Initiative of Alabama Keynote
Address at the DePaul Law Review Symposium: Race to Execution (Summer 2004), 53 DEPAUL L.
REV. 1699, 1708, 1711 (2004) (discussing a racially charged jury deliberation).
49. See Bryan Stevenson, Executive Director Equal Justice Initiative of Alabama Remarks at
the American Constitutional Society’s Annual Conference, Session E: The Future of the Death
250 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
penalty is more appropriate for a black or brown defendant because ipso facto
such a defendant is more likely to be dangerous in the future.” That is an
example of explicit bias.
B. Implicit Bias and Related Studies
Research regarding the causes of implicit bias has emerged slowly.*!
Apparently, from around 1980 to 1995, fewer people would openly discuss
racism, which caused research of explicit bias to diminish.” Thereafter, research
increased for several reasons.*? One was that psychologists discovered a way of
researching racism by means of implicit tests."
1. Studies in the Context of Employment
For example, LDF lawyer Matthew Colangelo discussed two studies at the
Airlie conference in 2009.* In one study, social scientists submitted candidates
for employment to employers with identical, false, made-up resumes, with the
only difference being that one of them had the name Emily Walsh and the other
had the name Lakisha Washington.’ The study found that the candidate with
the name Emily Walsh was 50% more likely to get an interview than Lakisha
Washington.*’ That rate differential is the equivalent of having an eight-year
difference in experience, even though these hypothetical resumes were the
same.**
Then, Princeton social scientists Devah Fager and Bruce Western sent
prospective employees/testers not to the Deep South, but to New York City.”
Penalty (Aug. 2, 2003) (transcript available at http://www.americanconstitutionsociety.org/
pdf/Death%20Penalty. pdf).
50. Id. at 29.
51. See Anthony G. Greenwald & Mahzarin R. Banji, Implicit Social Cognition: Attitudes,
Self-Esteem, and Stereotypes, 102 PsycuoL. Rev. 4, 4-5 (1995), available at
http://faculty.washington.edu/agg/pdf/Greenwald_Banaji_PsychRev_1995.OCR pdf (discussing the
development of studies on implicit bias).
52. Id.
53. Id.
54, See Jerry Kang, Trojan Horses of Race, 118 Harv. L. REV. 1489, 1508-15 (2005)
(discussing many studies of implicit bias); see also Understanding Prejudice,
http://www.understandingprejudice.orgy/iat/ (last visited March 28, 2010) (providing an interactive
implicit bias test online).
55. Matthew Colangelo, NAACP Legal Defense & Educational Fund, Remarks at the NAACP
Legal Defense Fund’s annual Airlie Capital Punishment Conference (Summer 2009).
56. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than
Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 AM. ECON. REV.
991, 991-92 (Sept. 2004).
57. Id. at 992.
58. Id.
59. See DEVAH PAGER & BRUCE WESTERN, RACE AT WoRK: REALITIES OF RACE AND CRIMINAL
RECORD IN THE NEW YORK City JoB MARKET 1-2 (Schomburg Center for Research in Black
Culture) (Dec. 9, 2005), available at http://www.nyc.gov/html/cchr/pdfirace_report_web.pdf
2010] ROLE OF RACE IN CAPITAL CASES 251
Among the candidates of the same race, those who indicated having criminal
records were, not surprisingly, much less likely to get employment.” However,
a white candidate who indicated that he had just been released from jail was
more likely to be hired than an African American with the same qualifications
and no criminal record. *'
2. The Implicit Association Test
I have also heard discussion about the Implicit Association Test. This test
measures automatic associations, such as associating black with being bad or
white with being good.” This test measures quick responses.*’ Of the white
Americans who took the test as part of a study, 75-80% had a moderate to strong
association of white being good and black being bad.“ Asian Americans had
similar associations.® African Americans and Hispanics did not exhibit much of
a difference in their attitudes regarding white and black.*
Notably, capital defense lawyers (and law students) responded about the
same as the general population.” They had these same stereotypical attitudes,
whether or not they believed they had them. These stereotypes did not appear
in what the study referred to as chronic egalitarians. Chronic egalitarians are
people who actively work on these issues and are internally motivated or who
have very close personal relationships with people of other races.”
(reporting as part of the New York City Commission on Human Rights conference at the
Schomburg Center for Research in Black Culture).
60. Id. at 6.
61. Id. at 7.
62. See Kang, supra note 54, at 1509 (referencing the innovative approach to studying implicit
biases in Samual L. Gaertner & John P. McLaughlin, Racial Stereotypes: Associations and
Ascriptions of Positive and Negative Characteristics, 46 SOC. PSYCHOL. Q. 23, 25 (1983)); see also
Project Implicit, https://implicit.harvard.edu/implicit/demo/background/fags.html#faq19 (providing
answers to frequently asked questions regarding Implicit Association Tests); Online Psychology
Laboratory, http://opi.apa.org/Experiments/About/AboutIA TRace.aspx (explaining how an implicit
association test works).
63. See Kang, supra note 54, at 1509.
64. See Gaertner & McLaughlin, supra note 62.
65. See Kang, supra note 54, at 1538; see also Katherine Hamilton, A Deadly Response:
Unconscious Racism and California's Provocative Act Doctrine, 7 HASTINGS RACE & POVERTY L.J.
71, 86-7 (2010).
66. See Kang, supra note 54, at 1538.
67. Justin D. Levinson, Race, Death, And The Complicitous Mind, 58 DEPAUL L. REV. 599,
616 (2009) (citing Theodore Eisenberg & Sherri Lynn Johnson, /mplicit Racial Attitudes of Death
Penalty Lawyers, 53 DEPAUL L. REV. 1539, 1556 (2004)).
68. Id.
69. See Jack Glaser & Eric Knowles, Implicit Motivation to Control Prejudice, 44 J.
EXPERIMENTAL Soc. PsyCHOL. 164, 165 (Jan. 18, 2007) (citing Gordon B. Moskowitz et al.,
Preconscious Control of Stereotype Activation Through Chronic Egalitarian Goals, 77 3.
PERSONALITY SOC. PSYCHOL. 167, 169 (1999) (employing the phrase “chronic egalitarian goals” for
their studies on stereotypes)).
70. Glaser & Knowles, supra note 69, at 164.
252 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
According to Professor Jerry Kang, “[t]here is now persuasive evidence that
implicit bias against a social category, as measured by instruments such as the
[Implicit Association Test], predicts disparate behavior toward individuals
mapped to that category . . . notwithstanding contrary explicit commitments in
favor of racial equality.”
3. Neuropsychological Correlations to Behavior
Another way of assessing implicit bias involves neuropsychological
correlations of behavior. Assessments of these correlations indicate which parts
of the brain are activated when people do different tasks. In one such study,
people were asked to identify someone of another race, which caused much less
activity in the part of the brain than is correlated with identification. This level
of activity may explain the greater extent of errors that occur in the criminal
justice system when somebody of one race purports to identify somebody of a
different race.
In these assessments, one analytical group consisted of people with low
explicit admissions but high implicit bias. If you asked such people whether
they had racial attitudes, they would respond in the negative. However, when
these people were asked to shake hands with or touch someone of another race,
the revulsion center of the brain reacted significantly. This reaction did not
particularly occur in the people who explicitly said they were biased, but it did
occur in many of those who did not think they were biased.
4. The Association of African Americans with Being Dangerous
Many presenters at the Airlie Conference reported the result of various
studies demonstrating that African Americans are associated with being
dangerous. At the 2008 Airlie conference, Dr. Jennifer L. Eberhardt presented
the results of a study concerning the association of African Americans as being
criminals.” She stated that although over eighty percent of white people
disclaim having racial-based attitudes, stereotypes of African Americans as
criminals appear repeatedly in studies.” For example, one study demonstrated
71. See Kang, supra note 54, at 1514; see also Jeffrey J. Rachlinski et al., Does Unconscious
Racial Bias Affect Trial Judges, 84 NoTRE DAME L. REV. 1195 (2009) (discussing how implicit
bias may affect trial judges). But see Hart Blanton et al., Strong Claims and Weak Evidence:
Rea: ing the Predictive Validity of the IAT, 94 J. App. PSYCHOLOGY VOL. 3, 567 (2009)
(criticizing implicit association tests).
72. Jennifer L. Eberhardt, Associate Professor of Psychology, Stanford University, Address at
the Legal Defense Council’s Annual Airlie Conference (Summer 2008).
73. Id.; see generally R. Richard Banks et al., Discrimination and Implicit Bias in a Racially
Unequal Society, 94 CAL. L. REV. 1169 (2006) (illustrating racial attitudes through Implicit
Association Test research and analysis); Jennifer L. Eberhardt et al., Seeing Black: Race, Crime,
and Visual Processing, 87 J. OF PERSONALITY & SOC. PSYCHOL. 876 (2004) (investigating the
influence of stereotypic associations on visual processing in five studies); Hamilton, supra note 65
(discussing African American criminal stereotypes).
2010] ROLE OF RACE IN CAPITAL CASES 253
that being shown an image of a black face somehow better enabled people to
“see” weapons better.” In this study, white university students were asked to
say at which side of a computer screen a particular dot appeared.”” They were
either shown all black faces, all white faces, or no faces.” Then, they were
shown objects and were asked to indicate when they could recognize it.” Some
of the objects were crime-relevant and some were crime-irrelevant.”” Those who
had been exposed to black faces recognized the crime-relevant objects much
faster than those who had seen white faces and somewhat faster than those who
had seen no faces.” There was no difference in speed of recognizing crime-
irrelevant objects.”
A speaker at the 2006 Airlie conference discussed similar results from
another study. That speaker referred to a study by Keith Payne in which people
were asked to identify whether the object somebody was holding was a tool or a
weapon.*' Whites and blacks both over-identified the object as being a tool if
the person holding it were white and under-identified it as a tool if the person
holding it were black.”
In her 2008 presentation, Dr. Eberhardt also discussed a study in a video
game setting context. People were faster to “shoot” a black who had a gun than
a white who had a gun and were more likely to “shoot” a black who didn’t have
a gun than a white who did not have a gun.” This was true of both black and
white community members.“ In another study using a video game, the black
model was more likely to be mistaken as being armed when actually unarmed,
and the white model was more likely to be mistaken as being unarmed when
actually armed. The black participants in this video game study showed the
same “shooter bias” as white participants."
Dr. Eberhardt also discussed a somewhat similar study in which police
officers were primed with crime-related words.*’ When errors of recollection
74. Eberhardt et al., supra note 73, at 881.
75. Eberhardt et a
76. Eberhardt et al.,
77. Eberhardt et al., supra note 73, at 880.
78. Eberhardt et al., supra note 73, at 880.
79. Eberhardt et al., supra note 73, at 880.
80. Eberhardt et al., supra note 73, at 880.
81. See Kang, supra note 54, at 1525 (citing B. Keith Payne, Prejudice and Perception: The
Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. PERSONALITY &
Soc. PSYCHOL. 181, 183-86 (2001).
82. Kang, supra note 54, at 1525 (citing Payne, supra note 81, at 183-86).
83. Joshua Correll, et al., The Police Officer's Dilemma: Using Ethnicity to Disambiguate
Potentially Threatening Individuals, 83 J. PERSONALITY & SOC. PSYCHOL. 1314, 1314 (2002).
84. Id. at 1314; see Kang, supra note 54, at 1525-27 (discussing Correll et al., supra, note 83).
85. Correll et al., supra note 83, at 1315-1317.
86. Correll et al., supra note 83, at 1315-17, 1319, 1325.
87. Eberhardt et al., supra note 73, at 885.
254 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
occurred, people recalled seeing a more stereotypically black face than they had
actually seen.“
Another study assessed the extent of hostility people would exhibit when a
computer crashed.“ Where black faces were subliminally shown before the
computer crashed, there was much more hostility about the situation than when
no faces were shown before the computer crashed.”
In yet another study, people reviewed two variations of an otherwise
identical TV news story.” In one version, a black suspect was shown for five
seconds, and in the other version, the suspect was shown for five seconds with
the same facial expression and features except that he was white.” The
participants in the study who saw the crime story believed that everything else
about the suspects was the same.”? White participants in the study who saw the
black suspect were six percent more likely to support punitive measures than a
control group that did not know the suspect’s race.’ White participants in the
study who saw the white suspect were only one percent more likely than the
control group to support punitive sanctions, a difference that had no statistical
significance.”®
Mark Bookman, a presenter at the 2007 Airlie conference, discussed a
National Basketball Association study about split-second foul calls."° The study
found that under similar circumstances, white referees tended to call more fouls
on African Americans, and to a slightly lesser extent, that African American
referees tended to call more fouls on white players.”
Clearly, these various studies have implications about lineups, other
identifications, and what witnesses remember about what they saw (or what they
think they saw) with regard to people having weapons, etc.
88. Eberhardt et al., supra note 73, at 886-888; see also Hamilton, supra note 65, at 89-92
(discussing police-related shooter bias).
89. John A. Bargh et al., Automaticity of Social Behavior: Direct Effects of Trait Construct
and Stereotype Activation on Action, 71 J. PERSONALITY & SOC. PSYCHOL. 230, 238 (1996).
90. Id. at 239; see Kang, supra note 54, at 2005 (discussing the Bargh study).
91. Franklin D. Gilliam, Jr. & Shanto Iyengar, Prime Suspects: The Influence of Local
Television News on the Viewing Public, 44 AM. J. POL. SCI. 560, 563-68 (2000).
92. Id. at 563.
93. Id.
94. Id. at 568.
95. Id.
96. Joseph Price & Justin Wolfers, Racial Discrimination Among NBA Referees, 1-15 (Nat'l
Bureau of Econ. Research, Working Paper No. 13206, June 2007), available at
http://bpp.wharton.upenn.edu/jwolfers/Papers/NBARace%28NBER%29.pdf.
97. Id.
2010] ROLE OF RACE IN CAPITAL CASES 255
5. The Association of African Americans with Apes
Another implicit association that Dr. Eberhardt discussed is the association
of African Americans with apes.’ This association is made mostly by people
who would deny having any such belief if explicitly asked.” For example, white
students who had been primed with great ape words were presented with a
hypothetical of police beating a suspect.'"’ They were much more likely to say
that the beating was justified when they thought the suspect was black than when
they thought the suspect was white.'"!
This association of African Americans with apes does not show up merely in
a sociological study. The Philadelphia Inquirer newspaper has published
articles discussing defendants eligible for the death penalty due to the nature of
the crime committed.'” These articles used animal-related words significantly
more often when describing black death penalty-eligible defendants than when
describing white death penalty-eligible defendants." Moreover, African
Americans who were executed were depicted in such newspapers stories with
more ape-like representations than African American defendants who were not
executed.'“
Implicit “knowledge” that comes from sources like the wording of
newspaper articles, Tarzan movies, and many other sources is the reason for the
association of African Americans with apes.'’* While the existence of such
implicit “knowledge” is not dependent on an anti-black prejudice, it can have
implications for people who react to actual cases, no matter what their roles are
in the criminal justice system.'°°
Indeed such “knowledge” can come into play even when no racial
information is provided in a news account. Thus, in a study by Frank Gilliam
and Shanto Iyengar, sixty percent of participants in a study “who saw no suspect
falsely recalled having seen a photo of a suspect, and of those participants,
seventy percent falsely remembered seeing a Black suspect.”!”
98. See Phillip Atiba Goff et al., Not Yet Human: Implicit Knowledge, Historical
Dehumanization and Contemporary Consequences, 94 J. PERSONALITY & Soc. PSYCHOL. 292
(2008).
99. Id. at 294.
100. /d. at 302; see also Phillip Atiba Goff & Jennifer L. Eberhardt, Opinion, Race and the Ape
Image, LOS ANGELES TIMES (Feb. 28, 2009), available at http://articles.latimes.com/2009/
feb/28/opinion/oe-goff28; Reid v. Brodeur, No. Civ. 96-492-B, slip op. 1 (D.N.H. Feb. 14, 2001)
(involving an alleged police beating and an association between African Americans and Apes).
101. Goffet al., supra note 98, at 304; see also Goff & Eberhardt, supra note 100.
102. Goff et al.
103. Goffet al., supra note 98, at 304.
104. Goff et al., supra note 98, at 303-04; see also Levinson, supra note 67, at 642 (citing the
Goff study involving ape-like representations in the Philadelphia Inquirer).
105. Goffet al., supra note 98, at 304.
106. See Eberhardt et al., supra note 73, at 890.
107. Levinson, supra note 67, at 630 (citing Gilliam & Iyengar, supra note 91, at 561-64).
256 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
The impact of stereotypical African American features can be seen in
Looking Deathworthy, a study led by Professor Eberhardt and published in 2006,
which concerned Philadelphia men.' In the study, people were shown many
photographs of death-eligible defendants in a neutral fashion (i.e., nothing good
or bad was said about them).'” Those defendants whose physical characteristics
were more stereotypically black-featured, such as thick lips, broad nose, or dark
skin, were more likely to be viewed as deserving the death penalty when the
victim was white than when the victim was not white.'"°
6. Cross-Racial Identifications
There is substantial literature on cross-racial identifications. Studies show
that the ability to make a match, i.e., whether a witness is able to identify the
suspect as the individual actually observed, decreases significantly when the
observed person’s race is different than the observer's race.''! This occurs
because race is viewed as highly significant, and witnesses tend to pay less
attention to the facial features of a person of a different race than they would to
the facial features of a person of their own race.
The impact of this phenomenon apparently is not diminished by using
sequential lineups, in which the witness is shown people one by one rather than
all together.''? However, sequential lineups do enhance the accuracy of intra-
racial identifications, where somebody is identifying someone of his or her own
race.'" It has also been found that there is greater accuracy in a lineup if the
person conducting the lineup is of the same race as the suspect.
C. Some Potential Impacts on Capital Cases of Implicit Bias
Aside from what I already have suggested or discuss below, what are
potential impacts in capital punishment cases of implicit bias?
- It can affect how jurors react to assertions that someone acted in self-
defense.'*
108. See Jennifer L. Eberhardt, et al., Looking Deathworthy, Perceived Stereotypicality of Black
Defendants Predicts Capital-Sentencing Outcomes, 17 PSYCHOL. Sci. 383 (2006).
109. Id. at 383-384.
110. Jd. at 385.
111. See John P. Rutledge, They All Look Alike: the Inaccuracy of Cross-racial Identifications,
28 Am. J. Crim. L. 207, 211 (2001).
112. Id. at 208.
113. See Jacquline R. Evans, et al., Cross Racial Lineup Identification: Assessing the Potential
Benefits of Context Reinstatement, 15 PSYCHOL. CRIME & L. 19 (2009).
114. Mary Malkin Koosed, Reforming Eye Witness Identification Law and Practices to Protect
the Innocent, 42 CREIGHTON L. REV. 595, 603 (2009) (describing the technique of sequential
lineups); Bennett L. Gersham, The Eyewitness Conundrum, 81 JN.Y. St. B.J. 24, 28 (Jan. 2009)
(explaining why sequential lineups are more successful in allowing differentiated identifications
than simultaneous lineups).
115. See Andrew E. Taslitz, Judging Jena’s D.A.: The Prosecutor and Racial Esteem, 44 HARV.
C.R.-C.L. L. REV. 393, 418 (2009).
2010] ROLE OF RACE IN CAPITAL CASES 257
- It can affect assertions that there was excessive force by the police.
- It can affect whether there really is a presumption of innocence --
something that defense counsel really need to go over with a fine tooth comb in
voir dire.''°
- It can affect whether the jury believes that remaining silent, which is a
defendant’s constitutional right, is an admission of guilt.
- It can even affect how the jury perceives an expert witness who is a
person of color.'!”
A practice-related thought is that these kinds of studies regarding implicit
bias need to be used in seeking better voir dire and better jury instructions, and
to expand the kind of race-oriented mitigation that is allowed. For example, in
terms of mitigation, if there is a situation in which the defendant has been
subjected to a history of racial attitudes, he may, as a result, have experienced an
adverse psychological impact from living in such a situation.''* This is wholly
aside from, although related to, the impact of living in a community where there
is communal memory of racial violence, such as a notorious lynching or
outrageous racial discrimination, even many years after the fact.''” This can
cause psychic harm to the defendant, in addition to potential jurors, potential
witnesses, or others in the community.’ If defense counsel does not
persuasively argue, pre-trial, that this is a legitimate mitigating factor that should
be allowed to be presented, then counsel is being ineffective.” These
psychologically traumatic experiences are, in fact, mitigating.’
Also, based on these studies, other courtroom personnel, in addition to the
judge, may be sensitized to how the defendant is treated while in the
courtroom.’ This can include whether the defense’s mitigation specialist, who
may be the only other African American in the courtroom besides the defendant,
is permitted to be with the defendant during sidebars so that the defendant does
not appear to be thoroughly isolated, disinterested, or both.
116. See id. at 417.
117. See Rutledge, supra note 111.
118. See Leona D. Jochnowitz, Missed Mitigation: Counsel's Evolving Duty to Assess and
Present Mitigation at Death Penalty Sentencing, 43 No. 1 CRIM. L. BULL. ART 5 (2007)
(discussing what mitigation factors are in relation to how a defendant has been raised, and how
those factors affect jurors in the capital punishment setting).
119. Id.
120. Id.
121. American Bar Assoc. Guidelines for the Appointment & Performance of Defense Counsel
in Death Penalty Cases, 31 HorstRAa L. Rev. 913, 1021 (2003); see also Jochnowitz, supra note
118, at Sect. IV.; Alycee Lane, “Hang Them if They Have to be Hung”: Mitigation Discourse,
Black Families, and Racial Discourse., 12 NEW CRIM. L. REV. 171 (2009) (describing the standards
which must be met to show ineffective assistance of counsel based on the failure to properly
present mitigation evidence).
122. See Lane, supra note 121; Richard G. Dudley & Pamela Blume Leonard, Getting it Right:
Life History Investigation as The Foundation For a Reliable Mental Health Assessment, 36
Horstra L. REV. 963 (2008).
123. See Lane, supra note 121; see also Dudley & Leonard, supra note 122.
258 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
1. Defense Counsel’s Problems Arising from Their Limitations Regarding
Race
Another pernicious factor can be defense counsel’s difficulties with
recognizing his own limitations regarding race.'** Sometimes, counsel may find
it difficult to empathize with clients of color. Sometimes, counsel’s attitudes, of
which he may often be unaware, may be noticed by the defendant or his
relatives. This may impede counsel’s ability to elicit information about
mitigation or the crime that would be truly helpful. Indeed, Dr. Richard Dudley,
a frequent presenter at the Airlie conference, stated that seventy to eighty percent
of the defendants on whose cases he has worked have told him that they believe
race negatively impacts their relationship with their attorneys.’
Diversity within the defense team can increase the likelihood of finding
mitigating factors.'*° As attorney Maurie Levin'” has noted, defense teams
without such diversity are more likely to miss the very kind of evidence of
racism in the community and its history that Dr. Melynda Price has discussed at
this conference.'** Ms. Levin believes that someone on the team must be aware
that this kind of evidence can exist, as it does in many communities, and that the
team must have the ability to look into it.
Additionally, the frequent lack of diversity in the prosecution team could
have adverse impacts. This can particularly affect the discretionary decision
regarding whether to seek the death penalty.'””
2. Implications of Cognitive Psychology with regard to Jurors
Cognitive psychology has the greatest implications with regard to jurors.'””
According to studies of implicit bias, most people cannot easily ignore their
implicit beliefs.'*! Accordingly, if the first thing a juror with implicit bias knows
about a person is that he or she is African American and the juror later gets more
information that might be mitigating, the race information tends to adversely
affect how the other information is viewed.'” Jurors with negative implicit
124, See Eisenberg & Johnson, supra note 67.
125. Dr. Richard Dudley, Remarks at the NAACP Legal Defense Fund Annual Capital
Punishment Training Conference (July 11-13, 2008).
126, Scharlette Holdman & Christopher Seeds, Culture Competency in Capital Mitigation, 36
HorsTRA L. REV. 883, 906 (2008); see also Eisenberg & Johnson, supra note 67.
127. Maurie Levin is an adjunct professor at The University of Texas at Austin School of Law.
Her biography is available at The University of Texas at Austin, Faculty and Administration,
http://Awww.utexas.edu/law/faculty/profile.php?id=ml4477 (last visited March 28, 2010).
128, Price, supra note 46.
129, Eisenberg & Johnson, supra note 67, at 1539.
130. See William J, Bowers et al., Death Sentencing in Black and White: An Empirical Analysis
of the Role of Jurors' Race and Jury Racial Composition, 3 U. Pa. J. CONST. L. 171 (2001).
131, Id. at 185.
132, Id. at 183.
2010] ROLE OF RACE IN CAPITAL CASES 259
beliefs also pay more attention than is warranted to personal rather than
situational factors in deciding why somebody acted the way they acted.'*
As defense counsel, it is difficult to decide whether to discuss this openly. I
mention below what is known as a “pink elephant” effect: if a juror is told that
which is stated in certain pattern jury instructions, i.e., “you are not to consider
race,” the juror may end up considering race more than if the juror had not been
told to avoid considering race.'** This will particularly occur if the juror has a
high degree of prejudice.'**
However, it is possible that having such an instruction may force jurors to
consider and become aware of their biases.'*° That may be particularly true if a
juror has an internal motivation to control his or her prejudice.'*’ It is, in any
event, challenging to write an instruction that both minimizes the “pink
elephant” effect and permits proper consideration of race in mitigation
contexts.'** It is important, for example, to avoid writing instructions that could
have the effect of limiting consideration of mitigation evidence that comes
through a racial lens, such as the racial history of a jurisdiction or the racial
context of a particular crime.'”
One other point that should be of interest to defense counsel is that people
who have less practice in disregarding negative factors are also less likely to
shape and to correct their reactions to such factors.'“’ One implication of this is
that in voir dire, when considering prospective jurors, defense counsel might
prefer someone who acknowledges racist attitudes and says he or she is trying to
work on this over someone who denies having such attitudes but whom the
lawyer suspects to hold such attitudes implicitly."
133. Id.
134. Susan D. Rozelle, The Principled Executioner: Capital Juries’ Bias and the Benefits of
True Bifurcation, 38 ARIZ. St. L.J. 769, 777, 785 (2006).
135. Id.
136. See Samuel Sommers, On Racial Diversity and Group Decision Making: Identifying
Multiple Effects of Racial Composition on Jury Deliberations, 90 J. PERSONALITY & SOC. PSYCHOL.
597, 599-600 (2006).
137. Id. at 608-09.
138. David A. Aranson, Cross Racial Identification of Defendants in Criminal Cases, 23-SPG
CRIM. Just. 4, 8-11 (2008); see also Cynthia Lee, Race and Self-Defense: Toward a Normative
Conception of Reasonableness, 81 MINN. L. REV. 367, 488-89 (1996) (discussing the use of “race-
switching” jury instructions, in which jurors are told to evaluate how their decision would have
come out had the victim and defendant’s races been “switched.”
139. See Lane, supra note 121 (proposing proper ways to introduce mitigation evidence so as to
produce the most useful result).
140. See Sommers, supra note 136, at 607-608.
141. Sommers, supra note 136, at 601-608.
260 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
3. Studies Regarding the Impact of Jurors’ Implicit Biases on Capital Case
Outcomes
A University of California at Berkley study dated June 24, 2009, by Jack
Glaser, Karen Martin and Kimberly Kahn, found that when jurors were told that
the most serious sentence for triple murders was life without parole, they were
not significantly more likely to convict African American defendants than white
defendants.'” But when they were told that the death penalty was the maximum
sentence for triple murders, they were significantly more likely to convict
African American defendants than white defendants.'?
This and some of the other things I address in this article relate to this
question referred to during the Northern Kentucky Law Review fall symposium
on Race and the Death Penalty by Professor Howe: “Who deserves the death
penalty?”'“ Some of the implicit attitudes of jurors do seem to affect their
views on their fateful decisions, in otherwise identical situations, regarding who
deserves the death penalty.'*°
I noted above the question of how much to discuss the subject of race in the
courtroom. One of the speakers at the 2009 Airlie conference, LDF’s Vincent
Southerland, said that talking about race can expose these explicit and implicit
biases and can sensitize everyone in the courtroom to the issue of race and its
potential influence in the courtroom.'*’ If you can alert jurors to the fact that
race could have an impact on their decision-making or on the case in general,
this can help them account for their own racial biases.'"”
4. Impact of Juries’ Racial Compositions on Case Outcomes
Then, there is the question of the racial composition of juries and its impact.
There is strong reason to believe that the race of capital jurors affects
outcomes.'“* LDF’s Vincent Southerland says that study after study of juries by
the Capital Jury Project and others show that diversity in jury composition leads
to: more defense-favorable outcomes and longer deliberations; fewer
inaccuracies that are uncorrected during the longer, less angry jury deliberations;
142, Jack Glaser, et al., Possibility of Death Sentence Has Divergent Effect on Verdicts for
Black and White Defendants, Goldman School of Public Policy Working Paper No. GSPP09-002
(June 24, 2009), available at hitp:/(papers.ssrn.com/sol3/papers.cfm?abstract_id=1428943.
143, Id.
144, Professor Scott W. Howe, Chapman University School of Law, Remarks at the Northern
Kentucky Law Review Symposium: Race and the Death Penalty (Oct. 17, 2009). For more
information, visit Chapman University School of Law, Faculty, http://\www.chapman.edu/law/
faculty/howe.asp (last visited March 28, 2010).
145, Bowers, et al., supra note 130.
146, Vincent Southerland, Legal Defense Fund, Remarks at the NAACP Legal Defense Fund
Annual Capital Punishment Training (July 9-12, 2009).
147, Id.
148, Sommers, supra note 136, at 598.
2010] ROLE OF RACE IN CAPITAL CASES 261
and more discussion of missing evidence and of case facts than if the jury is not
diverse.'”
One such study is Samuel Sommers’s “On Racial Diversity and Group
Decisionmaking: Identifying Multiple Effects of Racial Composition on Jury
Deliberations.”"” In this study, diverse groups deliberated longer than the all-
white groups.'®' These groups, particularly due to the white participants,
discussed more case facts and had “more comprehensive” discussions than the
all-white groups.'” The white jurors in racially heterogeneous groups led these
groups to make “fewer factual errors and were more amenable to discussion of
race-related issues” than did whites who were part of all-white groups.’
“Moreover, inaccuracies were more likely to be corrected in diverse groups,”
and even prior to deliberations, white jurors “were less likely to believe the
defendant was guilty when they were in a diverse group.”'* Ina study of jurors
who actually served on trials in Indianapolis, Indiana, “the confidence of both
black and white jurors about the guilt of a defendant decreased as the number of
blacks on the jury increased, regardless of the strength of the evidence.”
Studies in which mock juries engage in discussions as to whether to impose
the death penalty generally “have shown that white mock jurors have the
strongest tendency to impose death as punishment in cases were the defendant is
black and the victim is white.”*’ Moreover, a study of actual capital sentencing
by juries in Philadelphia, Pennsylvania, found that “death sentences are less
likely when black jurors are more numerous” and that the impact of the jury’s
“racial composition was greater for black than for white defendants.’
Furthermore, the likelihood that black defendants will “be treated more harshly
than white ones as the number of whites on the jury increases” is particularly
pronounced when a black defendant is accused of killing a white victim.'”
However, the likelihood that black defendants will be “treated more harshly” is
149, Southerland, supra note 146.
150, Sommers, supra note 136, at 597-612.
151, Sommers, supra note 136, at 605 tbl. 2.
152, Sommers, supra note 136, at 608.
153, Sommers, supra note 136, at 606.
154, Sommers, supra note 136, at 608.
155, Sommers, supra note 136, at 607.
156, See Bowers et al., supra note 130, at 187 (discussing Christy Ann Visher, Jurors’
Decisions in Criminal Trials: Individual and Group Influences (1982) (unpublished Ph.D.
dissertation, Indiana University) (on file with Herman B, Wells Library, Indiana University).
157, See Bowers et al., supra note 130, at 184 for a discussion on various studies, including one
by Mona Lynch and Craig Haney).
158, See Bowers et al., supra note 130, at 188 (citing David C. Baldus et al., The Use of
Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. PA. J.
Const. L. 3 at tbl.8 & fig. 10 (2001) and David C. Baldus, et al., Racial Discrimination and the
Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings
from Philadelphia, 83 CORNELL L. REV. 1638, 1721 n.159).
159, Bowers et al., supra note 130, at 188.
262 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
diminished when “young black males and middle-aged black females are better
represented on the jury."
So, the failure to have diversity in jury composition, which in some court
decisions is viewed simply as harmless error under the apparent belief that
having an all-white jury does not have a significant prejudicial effect, often
greatly increases the risk of an unfair outcome. The studies of both actual
juries and simulated juries show that the way that diverse juries view
guilt/innocence evidence is different than in non-diverse juries, factual
determinations are more accurate in diverse juries, and the very discretionary
decisions on who truly deserves the death penalty are greatly affected by jury
diversity.
5. The Importance of Identifying Racially Biased People During Jury
Selection
How is it that we can so often end up with juries that are far less diverse than
the jury-age population? One important factor, discussed above in the context of
the Gates case, is the composition of the venire (i.e., the pool of potential jurors)
from which a jury is selected.'®' The venire’s composition can be distorted in
various ways. For example, if the venire is based solely or principally on voter
rolls, it can be distorted if African Americans are less likely to register to vote.'
People who are in the jury venire may be excluded for cause if, as is far more
likely among African Americans, people they know are caught up in the criminal
justice system.'®? While I do not think that is a proper “cause” for exclusion,
some jurisdictions deem this to be a legitimate “cause”, i.e., the prosecutor does
not have to use up a discretionary challenge to exclude such a prospective
juror.'“*
In capital punishment cases, the jury’s diversity can also be undermined by
the fact that if a prospective juror would never be willing to vote for the death
penalty, that juror will be excluded for cause — even from the determination of
160. Bowers et al., supra note 130, at 188.
161. See Gates v. Zant, 863 F.2d 1492, 1500 (11th Cir. 1989).
162. See Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261,
1276 n.87 (2000) (noting that “the use of registered voter rolls as source lists tends to produce
lower numbers of people of color in the venire, given lower voter registration rates among minority
populations”).
163. See, e.g, MARC MAUER & TRACY HULING, YOUNG BLACK AMERICANS AND THE CRIMINAL
JusTICE SYSTEM: FIVE YEARS LATER | (1995) (finding that one in three African American men
between the ages of twenty and twenty-nine is under criminal justice supervision, as compared to
one in fifteen white men of that age and still lower rates among women).
164. See Melynda J. Price, Performing Discretion or Performing Discrimination: Race, Ritual,
and Peremptory Challenges in Capital Jury Selection, 15 Micu. J. RACE & L. 57, 90, 95 (2009)
(noting that “[b]lack men generally entangled in the criminal justice system are characterized as
kind of Black ‘Everymen,’ making their stories generally familiar to many in the Black community”
and “[tJhe removal of African Americans for either familiarity with the criminal justice system or
hostility to the state and its agents is, most arguably, not race neutral”).
2010] ROLE OF RACE IN CAPITAL CASES 263
guilt or innocence.’ Because African Americans oppose capital punishment far
more than white people,’ these Witherspoon'” exclusions aggravate the normal
difficulty of achieving diverse juries.
Some prospective jurors might come to realize in advance of being
questioned that there are situations in which they would be willing to vote for
capital punishment — such as Sirhan Sirhan,'® the “Hillside Strangler,”'®
Charles Manson,'” Timothy McVeigh, or a perpetrator of 9/11.'7 But I believe
that most potential jurors who generally oppose the death penalty are unaware of
answers they could truthfully give that might cause them to qualify for service on
a capital jury. So, it stands to reason that Witherspoon questioning excludes
African Americans disproportionately.
To be sure, there can be reverse-Witherspoon questioning, in which people
who would always vote for the death penalty for capital murder are excluded for
cause.'” But studies suggest that such questioning occurs much less often and
much less effectively than Witherspoon questioning. For example, as shown in
studies by the Capital Jury Project and others, people who will always vote to
impose the death penalty if there is a capital conviction often remain on juries.
165. See Lockhart v. McCree, 476 U.S. 162, 179-84 (1986); Wainwright v. Witt, 469 U.S. 412,
424-25, 430 (1985).
166. Kenneth Williams, The Death Penalty: Can it be Fixed?, 51 CATH. U. L. REv. 1177, 1218
(2002) (citing Allan Turner, A Deadly Distinction; Bloodthirsty Image at Odds with Local Poll,
Hous. CuRoN., Feb. 3, 2001, at Al for the proposition that “[o]nly twenty-four percent of African
Americans support the death penalty, compared to sixty-two percent of whites, fifty percent of
Hispanics, and thirty-three percent of Asians).
167. Witherspoon v. Illinois, 391 U.S. 510 (1968).
168. “Sirhan was twenty-four [years old] when he shot [Robert F. Kennedy Jr.] in the kitchen of
the Ambassador Hotel in Los Angeles. Tried and convicted, he was sentenced to death, a verdict
that was later commuted to life in prison.” Mark Mooney, 40 Years Later, Sirhan Sirhan’s Latest
Mug Shot, ABC News, June 10, 2008, http://abenews.go.com/TheLaw/
story?id=5037471&page=1.
169. The “Hillside Strangler” refers to two men, Kenneth Bianchi and Angelo Buono, cousins
who were convicted of kidnapping, raping, torturing, and killing women ranging in age from
twelve to twenty-eight years old during a four-month period from late 1977 to early 1978 in the
hills above Los Angeles, California. The Hillside Strangler, http://www.hillside-strangler.com/
(last visited March 19, 2010).
170. “[O]n Aug. 9, 1969, Manson’s hippie-styled followers, the Manson Family, murdered
actress Sharon Tate, wife of director Roman Polanski, and four other visitors to her Los Angeles
estate. The murders were gruesome, with numerous stabbings and shootings, and PIG written on
the wall in blood. The next night, the group brutally murdered a married couple, Leno and
Rosemary LaBianca, in their Los Angeles home, again leaving messages in blood all over the
house.” Andrea Sachs, Manson Prosecutor Vincent Bugliosi, TIME, Aug. 7, 2009, available at
http://www.time.com/time/nation/article/0,8599,1915134,00.html (last visited March 19, 2010).
171. Timothy McVeigh was “convicted of the bombing of the Alfred P. Murrah Federal
Building in Oklahoma City that killed 168 people.” Lois Romano & Tom Kenworthy, McVeigh
Guilty On All 11 Counts, WASH. Post, June 3, 1997, at AOL.
172. See Morgan v. Illinois, 504 U.S. 719 (1992); see also Deborah L. Mahoney, Comment:
Constitutional Law: Capital Defendants Permitted Reverse-Witherspoon “Life Qualifying”
Questions on Voir Dire, [Morgan vy. Illinois, 112 S. Ct. 2222 (1992)], 32 WASHBURN L.J. 278, 282-
85 (1993).
264 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Such people are also more likely than the average adult population to have racist
attitudes.'”
Besides Witherspoon and reverse-Witherspoon questioning, there are other
aspects of questioning prospective jurors, i.e., voir dire, in capital cases. Steve
Bright, the long-time leader of the Southern Center of Human Rights, noted at
the 2009 Airlie conference that the Supreme Court’s decision in Turner v.
Murray'™ allows capital defense counsel to ask questions about race during voir
dire if there is an interracial crime.'” Bright added that defense counsel may
want the jury to include people who talk honestly about their views about race
rather than denying that they have any racial attitudes.'
The significance of this potential questioning is highlighted by the
conclusion by William Bowers and others involved in Capital Jury Project
interviews of actual jurors in post-Turner cases.'” These interviews
demonstrated that Turner had failed “to purge sentencing decisions of race-
linked attitudes and their consequences . . . .”"”* Bowers concluded that white
and black jurors’ different views of “the basic sentencing considerations of
lingering doubt, remorse, and dangerousness are most manifest and egregious” in
cases involving interracial murders — the very cases in which the questioning
authorized by Turner is permitted.'” My guess is that defense counsel in those
cases did not ask the kinds of questions that Mr. Bright believes should be asked.
LDF’s Vincent Southerland, speaking as did Mr. Bright at the 2009 Airlie
conference, said that while defense counsel may be anxious about asking such
questions, counsel should look for the people who are uncomfortable talking
about race.'*’ Their words, their actions, their attitudes, or their facial
expressions can demonstrate their racism or bias, and it may affect their
decisions.'*!
Such questioning does not achieve its purposes as easily as in 1986, when
Turner was decided, because people are now much less likely to explicitly state
their biases.'* But, as Mr. Southerland pointed out, even when the ability to
173. See James D. Unnever, et al., Race, Racism, and Support for Capital Punishment, 37
CRIME & JuST. 45, 66 (2008) (citing several studies to support the allegation that “racial animosity
is one of the most robust and consistent predictors of support for the death penalty”).
174. 476 U.S. 28 (1986).
175. Stephen B. Bright, Southern Center of Human Rights, Remarks at the NAACP Legal
Defense Fund Annual Capital Punishment Training (July 9-12, 2009). For more information
regarding this speaker, visit The Law Office of the Southern Center for Human Rights, Staff
http://www.schr.org/about/who (last visited March 28, 2010).
176. Stephen B. Bright, Southern Center of Human Rights, Remarks at the NAACP Legal
Defense Fund Annual Capital Punishment Training (July 9-12, 2009).
177. Bowers, et al., supra note 130, at 263.
178. Bowers, et al., supra note 130, at 263.
179. Bowers, et al., supra note 130, at 266.
180. Vincent Southerland, Legal Defense Fund, Remarks at the NAACP Legal Defense Fund
Annual Capital Punishment Training (July 9-12, 2009).
181. See id.
182. See Shankar Vedantam, See No Bias, THE WASHINGTON Post, JAN. 23, 2005, at W12.
2010] ROLE OF RACE IN CAPITAL CASES 265
identify biased people is limited, good questioning can raise the jurors’
awareness that race and racial bias can have the “elephant” effect discussed
above.’ Accordingly, alerting the jury to the danger of acting on the basis of
racism can make jurors less likely to do so, and thus can significantly affect the
outcome.'™* Indeed, the Sommers study (discussed above) found that when there
was race-relevant voir dire, jurors were less likely to vote guilty than when there
was race-neutral voir dire.'** However, as pointed out by Professor Benjamin
Fleury-Steiner'®® of the Capital Jury Project, many jurors are annoyed by
questions about racism, which can make their answers unreliable. So, defense
counsel must carefully determine what to do.
One final thought about voir dire does not specifically deal with race. The
Supreme Court has held that you cannot have an automatic death penalty for
people convicted of capital murder.'” It seems that many jurors do not realize
this. That is why reverse-Witherspoon questioning is allowed — although I
believe that it is conducted far too infrequently.
6. Improper Racially-based Exclusions of Prospective Jurors
As noted above, in voir dire, aside from challenges “for cause,” each side is
typically permitted to exercise a certain number of discretionary challenges, i.e.,
challenges for which they do not have to give a reason that disqualifies the juror
as a matter of law.'** The Supreme Court in McCleskey v. Kemp'® relied on
Batson v. Kentucky'® as a means of preventing racial discrimination in capital
jury selection. In Batson, the Court said that if, in a particular case, it appears
that a prosecutor may be exercising discretionary challenges to exclude people
on a racial basis, the prosecutor can be questioned about the reasons behind these
exclusions.’ If the judge is persuaded that the prosecution exercised
discretionary challenges based on race, then those peremptory challenges cannot
183, Southerland, supra note 146.
184, Southerland, supra note 146.
185, See Sommers, supra note 136, at 606.
186, For more information on this author, visit Ben Fleury-Steiner, Ph.D.,
http://www.benjaminfleurysteiner.com/.
187, See Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (plurality opinion) (finding that a
death sentence imposed under a mandatory death sentence statute violated the Eighth and
Fourteenth Amendments).
188, See Antony Page, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory
Challenge, 85 B.U. L. REV. 155, 157-58 (2005) (noting that “[t]he peremptory challenge, almost
by definition, was permitted “without cause, without explanation, and without judicial scrutiny”
(citing Swain v, Alabama, 380 U.S. 202, 212 (1965))).
189, 481 U.S. 279, 296-98 (1987).
190, 476 U.S. 79 (1986).
191, Jd. at 100 (remanding the case because the trial court “flatly rejected” the “timely objection
of the prosecutor’s removal of all black men on the venire” without making the prosecutor give an
explanation for his action).
266 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
be honored.'” In some cases, this can lead to overturning the entire jury
selection or the results of a trial in which such jury selection occurred.'*
The Steikers’ report to the ALI says that the Court’s reliance on Batson as a
way of preventing prosecutors’ racial discrimination in exercising peremptory
challenges is “profoundly misplaced.”'* In fact, a challenge of discrimination
based on Batson has never led to a reversal in either North Carolina or
Tennessee, and in over 2,000 cases tried to jury since 1997 in Jefferson Parish,
Louisiana, only two have been reversed.'”* The Steikers’ report cites various
studies, including one by William Bowers and his colleagues at the Capital Jury
Project, which show that requiring prosecutors to justify their discretionary
challenges has an “extremely modest” effect in reducing the racially based use of
peremptory challenges.'° This is largely because prosecutors are very well
schooled in coming up with non-racist-sounding rationales for their
exclusions.”
However, prosecutors can sometimes make mistakes which reveal the
discriminatory challenges. For example, a prosecutor may say that he didn’t like
an African American prospective juror because he said he was going to have to
miss work. But this rationale may not hold up if the record shows that the
prosecutor did not exclude a white prospective juror who also said he was going
to have to miss work.'** Accordingly, it is sometimes possible to obtain relief on
a Batson claim.
However, relief will not be granted in all states under such circumstances.
As the Equal Justice Initiative sated in a June 2010 report, the South Carolina
Supreme Court no longer finds a Batson violation when the core of a
prosecutor’s purportedly race-neutral explanation for striking an African
American prospective juror would also have applied to a white prospective juror
whom the prosecutor did not strike." The report adds: “Indeed, no criminal
defendant has won a Batson challenge in that state since 1992."
192. Id. at 100-102.
193. See, e.g., State v. Rosa-Re, 190 P.3d 1259 (Utah 2008).
194. See STEIKER & STEIKER, supra note 41, at 15.
195. Shalia Dewan, Blacks Still Being Blocked From Juries in the South, Study Finds, N.Y.
Times, June 2, 2010, at Al4.
196. See STEIKER & STEIKER, supra note 41, at 15 (discussing Bowers, et al., supra note 130).
197. See Brian J. Serr & Mark Maney, Racism, Peremptory Challenges, and the Democratic
Jury: The Jurisprudence of a Delicate Balance, 79 J. CRIM. L. & CRIMINOLOGY 1, 53-54 (1988)
(noting that “facially neutral reasons [for exclusion] provide prosecutors with a ‘cover’ for racial
discrimination, especially if the trial is in a large city where the burden of unemployment, low
income, or poor education is likely to fall disproportionately upon minorities”).
198. See Dewan, supra note 195.
199. Equal Justice Initiative, /legal Racial Discrimination in Jury Selection: A Continuing
Legacy (June 2010), at 26-27, (discussing Sumpter v. State, 439 S.E.2d 842, 844 (S.C. 1994)
(finding that a prosecutor did not violate Batson by striking an African American prospective juror,
purportedly due to a “prior DUI involvement,” while not striking a white juror who had been
convicted of DUI, because a different office had prosecuted the white prospective juror); and State
v. Dyar, 452 S.E.2d 603, 603-04 (S.C. 1994) (finding no violation of Batson where prosecutor
2010] ROLE OF RACE IN CAPITAL CASES 267
The report goes on to say that in Alabama, no matter what other evidence
exists that a prosecutor has engaged in race-based strikes and that his purported
race-neutral justifications for the strikes are implausible, Batson relief will
almost never be granted unless there is also proof that the prosecutor did not
strike a similarly situated white prospective juror.””"
In any event, the fact that prosecutors base their peremptory challenges on
racial grounds is better hidden. This is clear from highly unusual
circumstances in which, for totally unrelated reasons, this race-based
prosecutorial misconduct is exposed. Perhaps the most notable, scandalous
example of race-based prosecutorial misconduct occurred in Philadelphia,
Pennsylvania. We know about this situation only because the incumbent District
Attorney Lynne Abraham, who sought the death penalty far more than any other
District Attorney in Pennsylvania,””’ was being opposed for re-election by Jack
McMahon, a former Assistant District Attorney. District Attorney Abraham
knew that Mr. McMahon had appeared prominently in an internal training
videotape on how to conduct voir dire,”’* which she released publicly because he
was running against her.’ On the videotape, Mr. McMahon trained
Philadelphia prosecutors how to get away with evading Batson while still
exercising racism in challenging prospective black jurors.”” In one example, he
said that he would exercise a peremptory challenge solely due to the fact that a
prospective juror’s name was Reynard Boykin. Of course, that is not the
rationale he would have offered had he been asked why he had challenged that
prospective juror.’ That videotape exposed the racism in exercising
peremptory challenges in Philadelphia.
asserted that he struck an African American prospective juror whom he had prosecuted, yet did not
strike two white jurors who had also faced criminal charges, because the prosecutor had not
personally prosecuted the white prospective jurors))..
200. Id. at 27.
201. Id.
202. See Serr & Maney, supra note 197.
203. See Adam M. Gershowitz, Imposing a Cap on Capital Punishment, 72 Mo. L. REV. 73, 95
(2007) (noting that “[t]he long-time district attorney for Philadelphia County, Lynne Abraham,
makes it a practice to seek the death penalty whenever it is available”).
204. See Former Philadelphia Prosecutor Accused of Racial Bias, N.Y. Times, April 3, 1997, at
Ald.
205. Id.
206. Id.
207. The full-length training video is available at http://video.google.com/videoplay?docid=-
5102834972975877286# (last visited March 22, 2010).
208. See id.
209. David Lindorff, The Death Penalty’s Other Victims, DEATH PENALTY INFORMATION
CENTER, http://www.deathpenaltyinfo.org/node/607 (last visited March 22, 2010) (“Ironically,
McMahon, now in private practice, has become a vocal critic of the very practice he once
championed, ‘The reason district attorneys like Abraham so frequently seek the death penalty is
that they get a conviction-prone jury,” says McMahon, who now defends clients in capital cases.
‘Now they'll all tell you they don't do that, but they're full of crap and they know it. No one who's
268 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
Then, in the case of Thomas Miller-El, who came within hours of being
executed, lawyers from LDF found manuals and training materials used during
past decades in Dallas, Texas, that similarly trained prosecutors on how to get
away with excluding blacks as jurors."° Although this did not lead the Texas
courts or the Fifth Circuit to grant relief," the Supreme Court ruled in Mr.
Miller-El’s favor.”
The Equal Justice Initiative’s’'? June 2010 report on continuing racial
discrimination in jury selection advocates, as one of its many recommendations,
that “[e]xcluded jurors, who suffer measurable, real victimization at the hands of
government prosecutors, should have access to civil remedies.”*"* In such
lawsuits, the relatively few favorable Batson rulings from criminal cases could
be used to expose particularly egregious practices.
7. Legal Steps to Create More Diverse Decisionmakers
In a talk at the Airlie conference, Bryan Stevenson, the Equal Justice
Initiative’s Executive Director and a Professor at New York University Law
School, suggested that counsel should make change of venue motions based on
studies mentioned above, which find that certain types of people are likely to
view African Americans as prone to engage in criminal conduct; automatic but
implicit associations of African Americans with other negative characteristics;
and polling data.?'> These studies or polling data would have to be combined
with the particular case’s racial dynamics. Furthermore, Prof. Stevenson said
that such motions might make particular sense in racially-charged cases, such as
cases taking place in communities such as those described elsewhere in the
symposium by Professor Melynda Price.”!° For example, defense counsel could
argue that the defendant would have to overcome a presumption of guilt for
young men of color, and that there cannot be a fair trial unless the jury includes
individuals who have had interactions with the two-thirds of young men of color
who have not engaged in problematic behavior.
been working in this business would say that if they were honest. The whole process of death-
qualification is terribly unfair.””).
210. See Miller-El v. Dretke, 545 U.S. 231, 235 (2005).
211. See Miller-El v. Johnson, No. 3:96-CV-1992-H, 2000 U.S. Dist. LEXIS 724534 (N.D.
Tex. June 5, 2000), cert. of appealability denied, 261 F.3d 445 (5th Cir. 2001), cert. granted, 544
1122 (2002).
212. Miller-El, 545 U.S. 231.
213. See Equal Justice Initiative, http://www.eji.org/eji/ (last visited March 28, 2010).
214, Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing
Legacy, at 47, available at _ hitp://eji.org/eji/files/Race%20and%20Jury%20Selection
%20Report.pdf (last visited June 21, 2010).
215. For more information on Bryan A. Stevenson, visit American Bar Association, Raising the
Bar: Pioneers in the Legal Profession, http://www.abanet.org/publiced/bh_stevenson.html (last
visited March 28, 2010).
216. Price, supra note 46.
2010] ROLE OF RACE IN CAPITAL CASES 269
As Prof. Stevenson has further stated, even if such a motion loses, by making
and litigating the motion you may affect the dynamics and the postures, attitudes,
and thinking of everybody involved, including the District Attorney and the
judge. It also may effect how the voir dire will be conducted, particularly if,
when rejecting the change of venue motion, the judge promises not to allow
unconscious racism to affect the case. Good defense counsel would try to hold
the judge to such a promise.
Moreover, significant under-representation of African Americans in the jury
pool or the grand jury pool should be challenged, which did not occur in Johnny
Lee Gates’ case.”"” The case law concerning such challenges is often somewhat
deficient. Thus, some decisions deny relief if the court can say that the
percentage of African Americans in the jury pool is only five percent less than
the percentage of African Americans in the population.”"* But using that statistic
of five percent can be highly misleading. If African Americans are twenty
percent of the jury pool and twenty-five percent of the population, that five point
difference is actually a difference of twenty-five percent, because to increase the
percentage in the jury pool to that in the population, you would have to increase
from twenty to twenty-five, which is a twenty-five percent increase. To put it
another way, in this hypothetical, the jury pool contains one-fourth fewer
African Americans than in the population. So, what is relevant is not the raw
difference in percentage points, but rather the relative difference. Yet, many
court decisions fail to recognize this basic arithmetic that many of us learned in
elementary school. For these reasons, the June 2010 Equal Justice Initiative
report recommends that “[r]eviewing courts should abandon absolute disparity as
a measure of underrepresentation of minority groups and utilize more accurate
measures, such as comparative disparity, to prevent the insulation from remedy
of unfair underrepresentation.””””
8. Potential Systemic Attacks on a State’s or a County’s Ability to Use
Capital Punishment
Prof. Stevenson has suggested that, in places such as those that Professor
Price has discussed in this conference,””° which could include (as noted above)
Philadelphia, Pennsylvania, the question should be whether a particular state or
county should be permitted to seek the death penalty, given its history of racial
bias, lynching, or other problems. He has pointed out that a pre-trial motion
217. Gates v. Zant, 880 F.2d 293 (11th Cir. 1989).
218. See, e.g., United States v. Carter, 65 F. App’x 559 (7th Cir. 2003) (“disparity between
percentage of African Americans in 100-member jury pool, which was 4%, and number of African
‘Americans in the community, which was 6%, was not large enough to show that the jury pool was
not a fair cross-section of the community”).
219. Equal Justice Initiative, supra note 214, at 48; see also id. at 35-37 (discussing this issue
and existing case law).
220. See Price, supra note 46.
270 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
seeking to preclude the use of the death penalty in the particular jurisdiction can
be used to bring such histories into the litigation, even if the motion does not
succeed. Professor Anthony G. Amsterdam pointed out in 2007 at a Columbia
Law Symposium that the error at the heart of McCleskey is the notion that we
only care when a particular decisionmaker overtly bases his action on
discrimination.””' This idea leads us to ignore “color-coded” results that reflect
the prejudices of an entire community.””
Prof. Amsterdam’s article suggests a litigation strategy aimed at invalidating
a death penalty statute due to its racially discriminatory implementation. If
such a litigation strategy succeeded, I do not believe that it would lead directly to
abolition, but it would force the legislature to create a non-discriminatory statute
— which could include the various kinds of provisions I discussed in my United
States Senate Judiciary Committee testimony explaining why if reforms were
made, the death penalty could co-exist with the Racial Justice Act~! Indeed, the
Baldus study presented in McCleskey found, as Justice Blackmun’s dissent
noted, that in the most aggravated cases (the ones most often cited by proponents
of capital punishment), no pattern of racial disparity existed.°> However, the
pattern of racial disparity did exist in the much larger proportion of cases that are
less aggravated.””°
III. CONCLUSION
Many death penalty proponents ignore the vast majority of capital cases,
including ones in which someone becomes involved in a felony that leads to an
unanticipated murder and is executed.’ If you favor the death penalty and do
not ignore this fact, you can — if you ignore all the evidence that it does not deter
crime and you don’t care about all the extra money capital punishment costs at a
time of incredible deficits — adopt the view of the conservative Ninth Circuit
221. Anthony G. Amsterdam, Opening Remarks: Race and the Death Penalty Before and After
McCleskey, 39 CoLuM. Hum. Rts. L. REV. 34 (2007).
222. See id.; see also Bryan A. Stevenson & Ruth E. Friedman, Deliberate Indifference:
Judicial Tolerance of Racial Bias in Criminal Justice, 51 WasH. & LEE L. REV. 509, 525 (1994)
(noting that “criminal defendants and the society as a whole are affected by the indifference to
racial bias in criminal proceedings).
223. See Amsterdam, supra note 221.
224. See Tabak, supra note 22 and accompanying text.
225. McCleskey v. Kemp, 481 U.S. 279 (1987) (Blackmun, J., dissenting).
226. See id.
227. See Richard A. Rosen, Felony Murder and the Eight Amendment Jurisprudence of Death,
31 B.C. L. REV. 1103, 1116 (1990) (explaining that “the felony murder rule has the potential to
equate any participant in the felony with the cold-blooded deliberate killer, no matter how
unforeseeable the death or how attenuated that defendant's participation in the felony or the events
leading to death”).
2010] ROLE OF RACE IN CAPITAL CASES 271
Justice Alex Kozinski, who says that the scope of the death penalty should be
greatly narrowed.”**
It is incumbent on those of us who know about the various facts discussed at
this symposium to tell courts about them, tell defense counsel about them, tell
prosecutors about them, and tell jurors and the general public about them. The
public, which overwhelmingly rejects explicitly expressed racism, would be
horrified by all the ways that implicit racial attitudes as well as explicit racism
continue to permeate our capital punishment system in this country.
Significant progress can be achieved only when this travesty of a justice
system is exposed and understood. To be sure, President Obama’s election and
his positions on certain issues — as well as the increasing implicit nature of the
racial bias — make this task more daunting. Fortunately, the numerous studies
discussed herein provide us with a compelling basis for changing the public and
judicial discourse on racism and the death penalty.
228. Id. at 29 (explaining that the objective of the death penalty is “to ensure that the very worst
members of our society--those who, by their heinous and depraved conduct have relinquished all
claim to human compassion--are put to death”).
THE RACIAL JUSTICE ACT IN KENTUCKY
Gennaro F. Vito, Ph.D.
I. INTRODUCTION
Despite the “super due process procedures” outlined in Gregg v. Georgia,’
the reinstitution of the death penalty in 1976 did not prevent racial
discrimination in capital sentencing. Post-Gregg studies of capital sentencing
have consistently demonstrated that the racial makeup of the victim-offender
relationship in murder cases has affected the probability of a death sentence.
Despite this research evidence, alterations to the capital sentencing system have
been less than forthcoming.
Il. THE MCCLESKEY DECISION
In McCleskey v. Kemp, the U.S. Supreme Court stated that the Baldus study”
on the Georgia capital sentencing procedures reviewed in Gregg revealed only
“a discrepancy that appears to correlate with race.”? The Baldus study presented
evidence that blacks charged with killing whites had the greatest likelihood of
receiving the death penalty.* This research was an attempt to inform the
comparative proportionality review process introduced under the Georgia capital
sentencing statute passed after the Furman decision.” The Baldus study
* — Professor and Distinguished University Scholar, Department of Justice Administration,
University of Louisville. Paper presented at the Northern Kentucky University Chase College of
Law Fall Symposium: Race and the Death Penalty, Saturday, October 17, 2009, Northern
Kentucky University, Highland Heights, Kentucky.
1. See Gregg v. Georgia, 428 U.S. 153 (1976) (holding that punishment of death for the crime
of murder did not, under all circumstances, violate the Eighth and Fourteenth Amendments; and
that the Georgia statutory system under which the punishment and guilt portions of the trial are
bifurcated, with the jury hearing additional evidence and argument before determining whether to
impose the death penalty; under which the jury is instructed on statutory factors of aggravation and
mitigation; and under which Georgia Supreme Court reviews each sentence of death to determine
whether it is disproportionate to the punishment usually imposed in similar cases was constitutional
despite the contention that it permitted arbitrary and freakish imposition of the death penalty).
2. Davip C. BALDUS, GEORGE WoopWorTH & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND.
THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 2-3 (1990). The Baldus study is actually
two studies. Both focused on Georgia and examined “whether trial-level reforms . . . can
distinguish rationally between those who should live and those who should die,” along with “the
ability of state supreme courts to provide the oversight of their death-sentencing systems required
to ensure that they operate in a consistent, nondiscriminatory fashion.” Id.
3. 481 U.S. 279, 312 (1987).
4. Id. at 287.
5. See Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (holding that imposition and carrying
out of the death penalty in cases before the Court would constitute cruel and unusual punishment in
violation of Eighth and Fourteenth Amendments).
274 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
examined the entire Georgia capital sentencing system through the use of
multivariate statistical analysis.° This method would identify those factors that
led to the death penalty being sought by the prosecution and imposed by the
jury.” The Baldus study determined that blacks who killed whites were nearly
three times more likely to be sentenced to death in Georgia than were whites
who killed whites.® The study did not and indeed could not focus on
McCleskey’s case, but he was in the category identified by the research — a black
who killed a white police officer during the course of an armed robbery.’
Therefore, the U.S. Supreme Court found that the study did not demonstrate that
race was a factor in his death sentence.'° The following quotes illustrate the
Court’s opinion of the study:
e “Statistics at most may show only, a likelihood that a particular
factor entered into some decisions.”
e Despite the statistical evidence, “the only question before us_is
whether in his . . . case the law of Georgia was properly applied.”"
e “Because discretion is essential to the criminal justice process, we
would demand exceptionally clear proof before we would infer that
discretion has been abused.”
Rather than demonstrating a pattern of racial discrimination in capital
sentencing, the McCleskey decision requires capital defendants to prove that
discrimination existed in their individual cases.
Ill. THE GENERAL ACCOUNTING OFFICE REPORT ON DEATH PENALTY
SENTENCING
The Baldus study led to the analysis of the capital sentencing process in
other death penalty states. This research was reviewed by the U.S. General
Accounting Office (“GAO”) as required under the Anti-Drug Abuse Act of
1988.'4 This law sanctioned a review of research on capital sentencing
procedures to determine whether either the race of the victim or the defendant
influenced the likelihood of a death sentence.'> The GAO conducted an
evaluation synthesis of fifty-three capital sentencing studies and excluded those
6. See BALDUS ET AL., supra note 2, at 40-79.
7. See BALDUS ET AL., supra note 2, at 40.
8. See BALDUS ET AL., supra note 2, at 315. “The death penalty was assessed in 22% of the
cases involving black defendants and white victims; [and] 8% of the cases involving white
defendants and white victims.” McCleskey, 481 U.S. at 286.
9. McCleskey, 481 U.S. at 279.
10. Id. at 279-80.
11. Id. at 308.
12. Id. at 319.
13. Id. at 297.
14. 21 U.S.C. § 848(0)(2) (1988) (repealed 2006).
15. Id.
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 275
that “did not contain empirical data or were duplicative.”!® This process
identified twenty-eight methodologically sound studies,'” including three
Kentucky analyses.'* On this basis, the GAO made the following conclusions:
e In eighty-two percent of the studies, race of the victim influenced the
likelihood of a defendant being charged with the death penalty
(especially those who murdered whites). -
e This evidence was stronger at the earlier stages of this process (e.g.,
the prosecutorial decision to seek the death penalty or to proceed to
trial rather than plea bargain) than in the later stages.”°
e “Aggravating circumstances” (e.g., prior record, culpability level,
heinousness of the crime, and number of victims) were influential
but did not, fully explain the reason for racial disparity in capital
sentencing.”
e The evidence for the influence of the race of the defendant was
equivocal. The race of the defendant interacted with other factors
(e.g., rural versus urban areas and blacks who killed whites).7”
e More than three quarters of the studies that identified a race-of-
defendant effect found that black defendants were more likely to
receive the death penalty.”>
Thus, the GAO research synthesis identified “‘a strong race of victim influence”
on the post-Gregg capital sentencing process.
Indeed, recent research confirms that this pattern continues to exist. Baldus
and his colleagues have identified eighteen additional “empirical studies
published or reported since the GAO report.” The results of these studies were
consistent with the findings of the GAO report: two documented no race effects
at all;?° three reported both race-of-victim and race-of-the offender effects;7” two.
identified specific disparities in terms of the cases where blacks were charged
16. U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH INDICATES
PATTERN OF RACIAL DISPARITIES 2 (1990).
17. Id.
18. dd. at 11-12.
19. Id. at 5.
20. Id.
21. Id. at6.
22. Id.
23. Id.
24. Id.
25. David C. Baldus & George Woodworth, Race Discrimination and the Death Penalty: An
Empirical and Legal Overview, in| AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT:
REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION 501, 518
(James R. Acker, Robert M. Bohm, & Charles S. Lanier eds., 2003).
26. Id. at 518, 541-43.
27. Id. at 518-19, 537, 543, 545.
276 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
with the, murder of whites;”* and the remaining twelve reported race-of-victim
effects.
IV. THE KEIL & VITO STUDY IN KENTUCKY
A study of the Kentucky capital sentencing system conducted by Thomas J.
Keil and me was included in this review.’ A replication of the Baldus study, the
research findings identified the factors that prosecutors*! and jurors used to seek
to impose the death penalty in Kentucky from 1976-1991. These factors were
identical for both prosecutors and jurors, specifically cases where:
e = The offender killed more than one victim;
e = The offender killed to “silence” the victim;*
e More than one aggravating circumstance was present;*>
© Cases in which blacks killed whites.*°
The study concluded that the impact of race on prosecutorial decisions could be
justified by the presence of other legitimate factors, and that juries considered
the killing of a white by a black more deserving of the death penalty than other
offender/victim racial combinations.*”
V. THE KENTUCKY RACIAL JUSTICE ACT
In McCleskey, the U.S. Supreme Court also stated that the research evidence
from the Baldus study was best presented to State and Federal legislatures rather
than courts.**® Writing for the majority, Justice Powell noted that: “Legislatures .
. . are better qualified to weigh . . . and ‘evaluate the results of statistical studies
in terms of their own local conditions and with a flexibility of approach that is
not available to the courts.” Our study was commissioned by the 1992
Kentucky General Assembly."° In response to the study, Kentucky Senator
Gerald Neal of Louisville and Representative Jesse Crenshaw of Lexington
28. Id. at 519, 538-40.
29. Id. at 519, 536-45.
30. See id. at 538-39.
31. Another study to determine whether the capital sentencing decisions of Kentucky
prosecutors (in cases from 1976-1991) were determined at random or by deliberate factors revealed
that the death penalty was most likely to be sought in cases where black offenders killed white
victims. Thomas J. Keil & Gennaro F. Vito, Capriciousness or Fairness? Race and Prosecutorial
Decisions to Seek the Death Penalty in Kentucky, 4 J. ETHNICITY CRIM. JuST. 27, 42 (2006).
32. Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder
Trials: 1976-1991, 20 AM. J. Crim. Just. 17, 20-21 (1995).
33. Id. at 22.
34. Id.
35. Id.
36. Id.
37. Id. at 26.
38. 481 U.S. at 319.
39. Id. (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).
40. Ky. REV. STAT. ANN. § 17.1531 (West 1992) (repealed 2007).
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 277
sponsored’! the Kentucky Racial Justice Act (RJA). © after vigorous debate
in both the Kentucky House and Senate, S.B. 171 was passed on February 5,
1998.4
The law seeks to prevent racial discrimination in capital sentencing, stating
that “[n]o person shall be subject to or given a sentence of death that was sought
on the basis of race.”*° It permits the introduction of valid statistical evidence of
racial bias in Kentucky’s capital sentencing process. 4° ‘The defense must claim
racial bias at the pretrial conference and bears the burden of proving the claim by
“clear and convincing evidence.” 7 The prosecution has the opportunity to rebut
whatever material and testimony the defense has presented as evidence. S The
legislation was not Tetroactive and cannot be applied to any person sentenced
before July 15, 1998.”
The Kentucky RJA had some legislative precursors. The U.S. Congress also
attempted to pass legislation to deal with racial disparity in capital sentencing. In
1991, the Faimess in Death Sentencing Act” was proposed in the House of
Representatives” but failed to pass.~ ? The bill called for Tesearch to determine
whether racial discrimination is a factor in capital sentencing.”* The act would
make it unlawful to execute a defendant whose death sentence, was the product
of racial discrimination (by race of the defendant or victim). The defendant
was required to provide proof that the death sentence was a product of racial
bias.”° The prosecution could then challenge this evidence or demonstrate that
legitimate factors (such as prior record) accounted for the sentence.”° If the
defendant prevailed, the death sentence (but not the conviction) would be set
aside.”’ The Kentucky RJA was a variant of the Congressional legislation of the
same title. The one difference is that the Kentucky law authorizes only a pre-
trial claim that race was the basis of the decision to seek the death penalty,”*
41. Justin R. Arnold, Note, Race and the Death Penalty Afier McCleskey: A Case Study of
Kentucky's Racial Justice Act, 12 Wash. & LEE J.C. R. & Soc. Just. 93, 102 (2005).
42. See Kentucky Racial Justice Act, Ky. REV. STAT. ANN. § 532.300-309 (West 1998).
43. See Arnold, supra note 41, at 102.
44. See Arnold, supra note 41, at 102.
45. Ky. REV. STAT. ANN. § 532.300.
46. Id.
47. Id.
48. Id.
49. Id. at § 532.305.
50. H.R. 2851, 102d Cong. (Ist Sess. 1991).
51, See Clifford Krauss, House Approves Anti-Crime Bill With Something for Both Camps,
N.Y. Times, Oct. 23, 1991, at Al.
52. H.R. 2851, 102d Cong. (Ist Sess. 1991).
53. See id.
54. See id.
55. See id.
56. See id.
57. See id.
58. Kentucky Racial Justice Act, Ky. REV. STAT. ANN. § 532.300(4) (West 1998).
278 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
while the proposed Federal legislation also permitted a legal challenge to
discrimination at the sentencing stage.
On August 11, 2009, North Carolina Governor Beverly Purdue signed a
Racial Justice Act into law.°° Like the Kentucky version, the North Carolina
statute provides for the use of statistical or other information by defense to
demonstrate whether the death penalty was sought on the basis of race.”!
Contributing to the reason for its passage is the fact that, over a five year period,
five black men on death row were exonerated after spending a collective sixty
years in prison.” ? Again, the defense has the burden of proof and can use such
evidence as:
e Death sentences were sought or imposed significantly more
frequently upon persons of one race than upon persons of another
race.
e Death sentences were sought or imposed significantly more
frequently as punishment for capital offenses against persons of one
race than as punishment of capital offenses against persons of
another race.°°
e Race was a significant factor in decisions to exercise peremptory
challenges during jury selection. ”
The state may rebut any of this evidence with its own data.°’ If the court
determines that the Gepital prosecution is the product of race, the death penalty
cannot be imposed. Ip sum, the North Carolina RJA is very similar to that of
Kentucky.
VI. RESPONSE TO THE KENTUCKY RACIAL JUSTICE ACT
Kentucky prosecutors were less than pleased about the passage of the RJA.
Although we had no hand in the drafting of the legislation, our study was
59. See H.R. 2851.
60. James Romoser, A Busy Session, Historic Decisions: General Assembly Finally Adjourns a
Session That's Been Hard, and Noteworthy, WINSTON-SALEM J., Aug. 12, 2009, available at 2009
WLNR 15616154.
61. See id.
62. Press Release, NAACP, Statement by Rev. Dr. William J. Barber, II, at the Signing of the
Racial Justice Act by Governor Perdue (Aug. 11, 2009), available at
http://www.deathpenaltyinfo.org/gov-perdue-signs-north-carolinas-racial-justice-act-naacp-
commends-passage.
63. North Carolina Racial Justice Act, N.C. GEN. STAT. ANN. §§ 15A-2010 to -2012 (West
64. Id. at § 15A-2011(b)(1).
65. Id. at § 15A-2011(b)(2).
66. Id. at § 15A-2011(b)(3).
67. Id. at § 15A-2011(c).
68. Id. at § 15A-2012(a).
69. See Susan Fernandez, Measure on Race and Death Penalty Goes to Governor, LEXINGTON
HERALD-LEADER, March 31, 1998, at C1 (“Prosecutors have argued that it would be wrong to allow
statistics from unrelated cases to be applied in other murder cases. They say that there is already
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 279
attacked as the reason for it. A Fayette County Assistant Commonwealth’s
Attorney had this to say when our study was used on appeal by a white death
row inmate who was claiming racial discrimination in capital sentencing:
This is the classic example of . . . lies, damn lies and . . . statistics... .
You look at these studies and anyone can find something to claim he’s
discriminated against, whites and blacks. Everyone will be exempt in
the end.”
Although this response is marked by a lack of understanding about the
meaning and limitations of our study, it does raise a legitimate issue about the
ultimate impact of the RJA. Can it actually prevent the impact of racial bias in
capital sentencing?
A sponsor of the RJA, Senator Gerald Neal, conducted a survey of all
Kentucky public defenders to determine, how the Act has been implemented.’
Sixty-four defense attorneys responded.” Four said that they had a case that
used the RJA, and an additional eight respondents stated that they knew of others
who had utilized its provisions in murder cases. Tn one particular case, the
defense cited the RJA and requested information about all the capital cases that
the prosecutor had sought, including why he decided to seek or not seek the
death penalty in each.”* The public defenders also noted the positive effects of
the law:
It announces the statewide standard that all must follow as a matter of
law whether they agree with it or not. It calls [on] prosecutors to reform
their charging and prosecution process. It calls on judges to ensure that
no prosecutions are done as a product of race discrimination. It calls for
defense attorneys to use this state-created standard to litigate so that no
one is prosecuted illegally."~
One noted negative effect of the RJA is that prosecutors have adopted
policies to seek the death penalty i in every eligible case, rather than making this
decision on a case-by-case basis.”° This effectively destroys all bias. Yet, it also
is perilously close to making the death penalty mandatory — a process that the
protection against racism in death prosecutions and sentences, and that [the Kentucky Racial
Justice Act] is a back-door attempt to scuttle the death penalty.”).
70. John Cheves, If Death Penalty Has Taint of Race, Can Law Remove It?, LEXINGTON
HERALD-LEADER, Feb. 15, 1998, at Al.
71. Gerald Neal, Not Soft on Crime, But Strong on Justice The Kentucky Racial Justice Act: A
Symbol, a Statement of Legal Principle, and a Commitment to Systemic Fundamental Fairness, 26
J. Crim. Just. Epuc. & Res. 9, 15 (2004).
72. Id.
73. Id.
74. Id. at 16.
75. Id.
76. Id.
280 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
U.S. Supreme Court declared unconstitutional in Woodson v. North Carolina.”
Also, as Louisville, Kentucky Senator Neal notes, this method is an
abandonment of prosecutorial discretion and “[t]he people of Kentucky have not
elected Commonwealth Attorneys to exercise no discretion.””* Neal asserts that
“{t]he question is not whether you are for or against the death penalty,” but it “is
whether the death penalty should be subject to the same standards of
nondiscrimination as any other institution in our state.”””
One particular use of the RJA was in the case of Nate Wood. Wood, an
African American, was charged with kidnapping and killing his former girlfriend
in Glasgow, Kentucky (Barren County: 4.5% African American population).*
Pretrial publicity and community attention were substantially high as the case
began. 5" The Commonwealth decided to seek the death penalty against Wood
and moved for a limited voir dire where only certain questions would be asked
and no others.** Under the RJA, the defense asked for several remedies,
including a voir dire that would address the issue of racial discrimination and an
order directing the Commonwealth to disclose the race of the defendant in all
death-eligible murder cases at the time of this case." A request for a change in
venue had previously been denied. In response to the RJA motion, the court
refused to exclude the possibility of a death sentence but did expand the
questions asked in the voir dire. 85" Wood was convicted of wanton murder and
capital kidnapping and sentenced to life without parole. ae
This use of the RJA seems both legitimate and effective. It required the
prosecution to deal with the potential, for racial bias in precisely the class of case
that was identified by the research®’ as problematic — those in which a black
offender was charged with the murder of a white victim. 88 The RJA is thus
proactive in its impact. It gives the defense a method to prevent the potential of
racial bias in a capital case while it is being conducted rather than upon appeal.
77. See Woodson vy. North Carolina, 428 U.S. 280, 305 (1976) (holding that North Carolina’s
mandatory death sentence for first-degree murder violated the Eighth and Fourteenth
Amendments).
78. Neal, supra note 71, at 20.
79. Neal, supra note 71, at 20.
80. Robert Sexton, Capital Trial of African American in Barren County Results in Life
Without Parole Sentence, 25 J. CRIM. Just. Ebuc. & REs. 14, 14 (2003).
81. Id.
82. Id.
83. Id. at 24.
84. Id. at 14.
85. Id.
86. Sexton, supra note 80, at 14.
87. See Keil & Vito, supra note 32.
88. Keil & Vito, supra note 32, at 26.
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 281
VII. COMPARATIVE PROPORTIONALITY REVIEW: A RECONSIDERATION
Yet the reactive approach of comparative proportionality review also
deserves further consideration. Our main research question was: Did the
requirements placed by the U.S. Supreme Court in Gregg prevent racial bias in
capital sentencing? In keeping with the original Baldus study, can statistical
analysis provide information to guide comparative proportionality review? Thus,
the Baldus study constituted an evaluation of the effectiveness of the super due
process protections approved by the review of the Georgia capital sentencing
process in Gregg.
The Court’s opinion in McCleskey was correct in its identification of the
limitations of the Baldus study in the particular case of the defendant.”
Statistical analysis can never provide evidence of discrimination in an individual
case. It can only determine whether a broad pattern exists. Our Kentucky study
could not determine where the discrimination occurred or who was
responsible.”! We found no geographic effect.” But this research evidence
indicated that racial bias did exist in the capital sentencing process, and that is
why the Court’s rejection of statistical evidence in McCleskey was in error. The
statistical finding regarding the impact of race reflected a major flaw in the
system, and the failure of the super due process remedies to prevent it. It was
not simply a factor correlated with race or some type of statistical artifact or
“ghost.” It was precisely the type of information that state supreme courts could
use to guide comparative proportionality review.
Basically, no matter how it is conducted, comparative proportionality review
follows three steps.”? First is the selection of a universe of cases.”* Second, the
court must select a pool of cases that are similar to that under appeal.” Finally,
the court must determine whether the death penalty case is proportionate to those
in that pool.” Typically, courts rely upon a “precedent-seeking approach” —
attempting to identify those cases that are similar in terms of the facts of the case
or aggravating factors.’ The Baldus study presented in McCleskey attempted to
provide a scientific method to guide this process by examining the factors that
distinguished capital cases from other death eligible murder cases that received a
different sentence via multivariate statistical analysis.”* This is a “systems
approach” to proportionality review:
89. Keil & Vito, supra note 32, at 18-19.
90. See McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987).
91. See Keil & Vito, supra note 32, at 30.
92. See Keil & Vito, supra note 32, at 30.
93. Donald H. Wallace & Jonathan R. Sorensen, Comparative Proportionality Review: A
Nationwide Examination of Reversed Death Sentences, 22 AM. J. CRIM. Just. 13, 18 (1997).
94. See id.
95. See id.
96. See id.
97. See BALDUS ET AL., supra note 2, at 281.
98. See BALDUS ET AL., supra note 2, at 378.
282 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
A systems approach begins with the collection of information on all
potential capital cases to analyze aggregate data on intake and exit from
the capital case processing system as a whole, regardless of whether
that system is viewed as fair. Systems analysis identifies discrete,
decision-making stages within capital case processing, and analyzes the
characteristics of cases and defendants and how they move through the
system at each identified stage.
The precedent based approach is much more limited in its pool of cases, and,
thus, treats the imposition of a death sentence as a single isolated sentencing
event.!°°
Following the Furman and Gregg decisions, over thirty states included
comparative proportionality review as a super due process element in their
capital statutes.!7! Kentucky is one of twenty-two death penalty states!” whose
capital punishment statute presently requires comparative proportionality review
of capital cases on appeal. 3 The U.S. Supreme Court ruled in Pulley v. Harris
that this procedure was desirable but not constitutionally required.!* As Bienen
notes, many state courts also used the McCleskey decision as an excuse to refuse
to consider constitutional challenges based upon statistical evidence, thus
“undermining the entire foundation of proportionality review.” Indeed, the
negative messages that McCleskey and Pulley transmitted about the use of
statistical information and comparative proportionality review made the
Kentucky Racial Justice Act necessary.
Yet, some states adopted information systems for data collection that are
necessary to conduct systematic capital case comparative proportionality
review.!°° Under the direction of Professor Baldus as a special master, the New
Jersey Supreme Court convened the Proportionality Review Project.!°7 This
effort identified and collected data on the relevant variables affecting the capital
sentencing system (examining it from indictment through sentencing), and
analyzed them with the most sophisticated statistical methods available.’ The
report conducted by the Project found that race of the defendant played a
significant role in capital sentencing.'” However, the Project was halted after
99. Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After
Gregg: Only “The Appearance of Justice,” 87 J. CRIM. L. & CRIMINOLOGY 130, 141 (1996).
100. See id. Our Kentucky analysis was modeled after the Baldus study. We took the
additional step of statistically modeling the probability that a case would reach the next stage of the
capital sentencing system and including it in the analysis as a covariate.
101. Jd. at 140,
102. Jd.
103. dd. at 237.
104. 465 U.S. 37, 44-51 (1984).
105. Bienen, supra note 99, at 133.
106. See Bienen, supra note 99, at 159-64.
107. Bienen, supra note 99, at 185.
108. Bienen, supra note 99, at 185.
109. Bienen, supra note 99, at 206.
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 283
March 12, 1992, when the Governor signed into Law a bill restricting the scope
of proportionality review to the pool of cases where the death penalty was
imposed. 8
Other states have failed to establish an information system and a precise
methodology for comparative proportionality review.'!! In Pennsylvania, the
process begins with the pool of cases in which the death penalty was sought, '!
Like the New Jersey legal restriction,! this decision eliminates an analysis of
the factors influencing the prosecutors’ decision to seek the death penalty.''* In
Missouri, Wallace and Sorensen reviewed the state of Missouri’s proportionality
review process and concluded that its “enfeebled” process renders a review that
“does little more than allow the reviewing court to justify a death sentence.”!!>
Wallace and Sorensen determined that from 1975 through April 1996,
appellate comparative proportionality reviews were conducted on fifty-five cases
from twelve jurisdictions.” Four reversals used only affirmed death sentences
in their comparisons.'!” Four additional cases were reviewed featuring selection
of a pool by common aggravating factors.''® The remaining cases were selected
by a comparison of the salient features of the case, and the precedent seeking
method was also predominant.’ '° Florida led the twelve jurisdictions with
twenty-six comparative proportionality review reversals, followed by North
Carolina (7); Illinois (4); Idaho and Nevada (3); Arkansas, Louisiana, Georgia
(2); and Arizona, Mississippi, Missouri, and Oklahoma (.!*°
Research also has indicated problems with the comparative proportionality
process in death penalty states. Kaufman-Osborn reviewed the comparative
proportionality review process adopted by the state of Washington. '*! In 1977,
the Washington capital statute called for the creation of an information system
that required court clerks, within ten days of receipt of the transcript of a death
penalty trial, “to transmit that record to the State Supreme Court along with ‘a
report prepared by the trial judge . . . in the form of a standard questionnaire
110. N.J. Star. ANN. § 2C:11-3(e) (West 2005) (repealed 2007). See Bienen, supra note 99, at
211.
111. See Bienen, supra note 99, at 161.
112. Rhonda G. Hartman, Critiquing Pennsylvania's Comparative Proportionality Review in
Capital Cases, 52 U. Prt. L. REV. 871, 871 (1991).
113. NJ. Star. ANN. § 2C:11-3(e).
114. See Hartman, supra note 112, at 904.
115. Donald H. Wallace & Jonathon R. Sorensen, Missouri Proportionality Review: And
Assessment of a State Supreme Court’s Procedures in Capital Cases, 8 NOTRE DAME J. L. ETHICS
& Pus. PoL’y 281, 313 (1994).
116. Wallace & Sorensen, supra note 93, at 20-21.
117. Wallace & Sorensen, supra note 93, at 21.
118. Wallace & Sorensen, supra note 93, at 21.
119. Wallace & Sorensen, supra note 93, at 21-25.
120. Wallace & Sorensen, supra note 93, at 22-24.
121. Timothy V. Kaufman-Osborn, Proportionality Review and the Death Penalty, 29 Just.
Sys. J. 257, 257 (2008).
284 NORTHERN KENTUCKY LAW REVIEW [Vol. 37:2
prepared and supplied by [that court]."1? In 1981, this process was amended to
make certain that the following information was included:
information about the chronology of the case; defendant; trial; special
sentencing proceeding, if conducted; victim; legal representation
provided to the defendant; ‘general considerations’ concerning the race,
ethnic, and sexual orientation of the various participants in the trial,
including the jury, as well as the demographics of the county in which
the trial was conducted; and, finally, ‘general comments of the trial
judge concerning appropriateness of the sentence, considering the
crime, the defendant, and other relevant factors,”!2>
The statute required that all of this information be filed in all cases where a
person was convicted of first degree murder.'~* Kaufman-Osborn examined
cases in Washington during the period 1981 to March 2003 when the death
penalty was sought in seventy-eight cases and imposed in thirty- one!” During
this time frame, the Washington Supreme, Court reviewed twenty cases for
proportionality and vacated none of them. 6 He found that many of the 259
cases that the courts utilized in this analysis were deficient in the required
information.'”’ The identified deficiencies included: the omission or exclusion
of cases that should have been included; reports that were not filed in the timely
fashion required by law (62% were late); reports that provided insufficient or
inaccurate information; failure to provide basic information about the
defendants’ biography and character; lack of information about the victim; lack
of information about the aggravating and mitigating circumstances in the case;
and lack of information on the race or ethnic origin of the defendant, victim and
jury, as well as the demographics of the trial county. 8 Without such accurately
compiled and submitted information, it is difficult to conduct a comparative
proportionality review that is legally accurate and relevant in its assessment of
the fairness of a capital sentencing system.
VIII. CONCLUSION
Comparative proportionality review could follow the growing use of
evidence-based practice in criminal justice, provided that valid and accurate
evidence can be compiled in a statistical information system. The use of
statistical information to guide operations has proven to be an efficient and
effective method in both corrections and policing. For example, Latessa has
noted that correctional research has been used to implement change and improve
122. Id. at 263.
123. Id. at 264.
124. Id.
125. Id. at 265.
126. Id.
127. Id. at 265.
128. Id. at 265-68.
2010] THE RACIAL JUSTICE ACT IN KENTUCKY 285
programs while holding both offenders and administrators accountable for
performance.'*° Ratcliffe has documented the effectiveness of intelligence-led
policing — where data and crime analysis directs operations and targets crime
locations and offenders to both prevent and sanction criminal activity.'*° In
Tampa, Florida, an intelligence led approach has generated a forty-six percent
reduction in major crime categories between 2002 and 2008.'°' Statistical
information in such cases provides intelligence in the sense that it directs
criminal justice decision makers and operatives to where a problem exists, and
where to focus both their effort and their resources. It does not tell them what to
do, but rather where to do it and with whom.
In Kentucky, our study identified a problem in the cases where black
defendants were charged with the capital murder of white victims. |? Taking an
evidence-based approach, these research findings directed the Kentucky
Supreme Court to focus its review on this class of cases — capital convictions
where blacks were charged with killing whites. What happened in the process of
these cases in terms of the provision of super due process — particularly the
conduct of the entire trial process? This information could thus allow the court
to concentrate their time and resources on a class of cases that was identified by
research to be the source of the problem. Such an approach would be similar to
examining “hot spots” of crime by the police.'** It is important to address the
issue of racial bias in such a manner. It affects not only the quality of our courts
but also the promotion of respect for the law in general. Taken together, the
Kentucky Racial Justice Act and a comparative proportionality review process
informed by statistical analysis have the potential to eliminate the impact of
racial bias in the capital sentencing process.
129, See Edward J. Latessa, The Challenge of Change: Correctional Programs and Evidence-
Based Practices, 3 CRIMINOLOGY PuB. POLicy 547 (2004).
130. JERRY H. RATCLIFFE, INTELLIGENCE-LED POLICING 4-10 (2008).
131, TampaGov.net, Focus on Four - Crime Reduction Plan, available at
http://www.tampagov.net/dept_Police/news_and_events/Focus_on Four/ (last visited Jan. 26,
2010).
132. See Keil & Vito, supra note 32, at 17.
133. See, e.g. Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A
Randomized Controlled Trial, 46 CRIMINOLOGY 577 (2008).
134. Bienen, supra note 99, at 144 (noting that insuring racial fairness is a traditional province
of the courts in such areas as employment, jury selection, or entitlement to government benefits,
and also where such statistical evidence as presented in McCleskey is accepted as evidence by the
courts).
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