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Capriciousness or Fairness?
Thomas J. Keil!; Gennaro F. Vito”
* Department of Social, Behavioral Sciences at Arizona State University West, USA » Administration
and Distinguished University Scholar at the University of Louisville, USA
To cite this Article Keil, Thomas J. and Vito, Gennaro F.(2006) 'Capriciousness or Fairness?’, Journal of Ethnicity in
Criminal Justice, 4: 3, 27 — 49
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Capriciousness or Fairness?
Race and Prosecutorial Decisions
to Seek the Death Penalty in Kentucky
Thomas J. Keil
Gennaro F. Vito
ABSTRACT. Previous research on capital sentencing have discovered
quantitative proof of discrimination, especially by race of the victim.
The present study examines prosecutorial decision making in Kentucky.
Using a method of analysis developed by Berk et al., it seeks to deter-
mine the level of capriciousness (uncertainty) present in the prosecuto-
rial decision to seek the death penalty. Kentucky prosecutors were most
likely to seek the death penalty in cases where black offenders killed
white victims. [Article copies available for a fee from The Haworth Document
Delivery Service: 1-800-HAWORTH. E-mail address: <docdelivery@
haworthpre ‘om> Website: <http:/Avww.HaworthPress.com> © 2006 by The
Haworth Press, Inc. All rights reserved. ]
KEYWORDS. Race, prosecutorial discretion, death penalty
INTRODUCTION
In 1976, the Supreme Court (Gregg v. Georgia) approved the Geor-
gia capital sentencing process and capital punishment was restored in
Thomas J. Keil is Professor of Sociology in the Department of Social, Behavioral
Sciences at Arizona State University West.
Gennaro F. Vito is Professor of Justice Administration and Distinguished Univer-
sity Scholar at the University of Louisville.
Journal of Ethnicity in Criminal Justice, Vol. 4(3) 2006
Available online at http://jecj-haworthpress.com
© 2006 by The Haworth Press, Inc. All rights reserved.
doi:10.1300/J222v04n03_02 27
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28 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
the United States. It had been suspended by the Furman v. Georgia
(1972) decision when a number of Supreme Court Justices had raised
serious questions about the issues of arbitrariness and capriciousness in
existing state death penalty statutes. In Gregg, the court approved a system
of “guided discretion” in capital sentencing, believing this was suffi-
cient to reduce both discrimination and arbitrariness in this process (see
Acker & Lanier, 1998). Research conducted since Gregg suggests that
guided discretion fails to prevent racial bias in capital sentencing whe-
ther it is based upon race of the offender or race of the victim.
CAPITAL SENTENCING AND DISCRIMINATION:
A REVIEW OF RESEARCH FINDINGS
The evidence that discrimination remains a fundamental part of the
death sentence process is strong and consistent. Studies of capital sen-
tencing have consistently demonstrated that blacks charged with the
murder of whites have a greater risk of receiving a death sentence than do
whites who kill whites, whites who kill blacks, or blacks who kill blacks.
This finding of potential racial discrimination was also discovered in cap-
ital sentencing studies based in Arkansas, Florida, Georgia, Illinois,
Kentucky, Mississippi, New Jersey, North Carolina, Ohio, Oklahoma,
Philadelphia, PA, South Carolina, Texas, and Virginia (Baldus et al.,
1983, 1998; Bienin et al., 1988; Gross & Mauro, 1988; Keil & Vito,
1995; Vito & Keil, 1988, 1990; Paternoster, 1983; Smith, 1987). This
pattern of discrimination by race of the victim holds true even when the
severity of the homicide is taken into account (see Barnett, 1985; Keil &
Vito, 1989). These studies focused upon the issuance of the death penalty
itself.
Studies of Prosecutorial Decision Making in Capital Cases
Few studies have focused on the decision of the prosecutor to seek
the death penalty. The prosecutor is the gatekeeper of the capital sen-
tencing process. If the death penalty is not sought by the prosecution, it
cannot be administered (Bedau, 1964; Bowers, 1983; Keil & Vito, 1990).
Within the boundaries of guided discretion, prosecutors have unlimited
freedom to charge a defendant with a capital crime if an aggravating
circumstance is present in the case. Research has revealed that they use
this discretion in ways that are not race neutral.
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Thomas J. Keil and Gennaro F. Vito 29
The race of the victim plays a role in prosecutorial decision making
(Baldus, Pulaski, & Woodworth, 1983; Radelet & Pierce, 1985; Berk,
Boger, & Weiss, 1993; Weiss, Berk, & Lee, 1996). An evaluation syn-
thesis by the U.S. General Accounting Office underscores these re-
search findings (GAO, 1990: 5-6):
* In 82 percent of the studies, race of the victim was found to influ-
ence the likelihood of being charged with capital murder or receiv-
ing the death penalty (especially those who murdered whites).
* The race of the victim influence was found at all stages of the crim-
inal justice system process. This evidence was stronger at the ear-
lier stages of the process (e.g., prosecutorial decision to seek the
death penalty or to proceed to trial rather than plea bargain) than in
the later stages.
* Legally relevant variables (e.g., aggravating circumstances, prior
record, culpability level, heinousness of the crime, and number of
victims) were influential but did not fully explain the reasons for
racial disparity in capital sentencing.
For example, the Kentucky-based portions of this research cited by the
GAO determined that the race of the victim coupled with race of the
killer were significant predictors of the prosecutorial decision to seek
the death penalty (Vito & Keil, 1988; Keil & Vito, 1989, 1990, 1991,
1996). In Kentucky, blacks who were eligible for capital charges had a
higher probability of death penalty prosecution if their case featured a
white victim. Blacks who killed whites were more likely than persons
in the other three victim-offender racial combinations (whites who
killed whites, blacks who killed blacks, and whites who killed blacks)
to be brought up on capital charges. The racial effect persisted even in
the face of controls for a variety of legal and extra-legal characteristics
of the homicide and of the offender. Controls for legal factors such
as multiple murders, having a history of violent offenses, and having
more than one aggravating circumstance present did not eliminate the
racial disparities in capital sentencing. Factors such as the “heinous-
ness” of the homicide or killing a stranger also failed to eliminate the
impact of race.
Overall, these studies concluded that the tendency of prosecutors to
charge blacks who kill whites with a capital crime to a greater degree
than they do other combinations was a function of a variety of factors.
First, it can be argued that murders of whites by blacks were given more
attention by the media and by politicians, making it difficult to avoid the
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30 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
capital prosecution of such cases. Second, for career reasons, prosecu-
tors might feel that proceeding capital when a black kills a white brings
a greater political return, at lower costs, than proceeding capital in inter-
racial cases. In particular, it was proposed that the Kentucky capital sen-
tencing system uses race as a consideration because of a continuing
adherence to traditional Southern norms of racial etiquette. In the South,
akilling of a white by a black violates a set of informal standards wherein
this type of murder, regardless of the circumstances surrounding it, is
taken to be a far more serious and dangerous threat to the social order
than other types of homicides (see G. Johnson, 1941; Myrdal, 1944).
It is not being black, per se, that leads a killer to be treated differently by
prosecutors, but rather it is the killing of white victim that leads to dis-
cretionary bias. Such discriminatory outcomes are an inevitable result
in a system that attaches differential value to a victim’s social worth
(Myers & Hagan, 1979).
Such bias is difficult to control through judicial means (Radelet, 1981).
Reviewing decisions on a case-by-case basis will produce “only a dis-
crepancy correlated with race,” as the Supreme Court noted in its evalu-
ation of the implications of Baldus’ et al. (1983) study of the Georgia
sentencing system for capital crimes in McClesky v Kemp. In this
decision, the majority decision noted that discrimination must be dem-
onstrated at the level of the individual case (Bynum, 1988: 1091).
MEASURING CAPRICIOUSNESS
While a strong argument can be constructed suggesting that there are
high levels of racial bias in the death sentence process, there have been
far fewer studies that have attempted to examine the issue of capricious-
ness, despite the strong tradition in American jurisprudence suggesting
that an equitable system of justice should not treat people randomly. In
asystem free of randomness, cases with similar legal profiles should
produce the same outcomes with respect to the charges assigned, while
cases with different profiles should produce appropriately different out-
comes. In a system with a high degree of randomness, such will not be the
case. Rather in a capricious sentencing process, system outcomes, to a
high degree, will be the result of chance. So that cases with similar
profiles will have little likelihood of being treated the same by a charg-
ing system.
Berk and his colleagues proposed, applied, and refined a methodology
for estimating the degree of capriciousness in the San Francisco capital
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Thomas J. Keil and Gennaro F. Vito af
sentencing charging system (Berk, Weiss, & Boger, 1933a; Weiss, Berk, &
Lee, 1996). In these studies, capriciousness is defined as the “degree of
unpredictability or randomness in the output of any social system, “even
if the same ‘inputs’ are consistently applied” (italics in the original)
(Weiss, Berk, & Lee, 1996: 609). In their model, the inputs were charac-
teristics of the offender and of the crime. The output was the prosecu-
tors’ decision to seek the death penalty. Weiss, Berk, and Lee (1996)
identify two types of capriciousness that may operate in a charging sys-
tem: chance homogeneity and chance heterogeneity. The first situation
refers to a situation in which a system tends to treat offenders with dif-
fering inputs (characteristics) in a similar manner. In the second situa-
tion, accused with similar profiles are treated differently.
Weiss, Berk, and Lee (1996) formulated a model for capriciousness
based on a multi-urn lottery system analogy. They proposed that mur-
derers were placed in different urns based on the seriousness of their
crime and other determinations made by prosecutors. Within each urn,
offenders face differing probabilities of being charged with a capital
offense. They proposed a quantitative measure of overall capricious-
ness based on Khinchin’s (1957) theorem to formalize their conception
of capriciousness. This measure provides an estimated the entropy or
uncertainty in a system. The measure has a high degree of face validity
as an indicator of system uncertainty/entropy as conceptualized by
Khinchin (1957) and other mathematicians working in this area. In order
to use this measure, four values must be calculated for any system: a max-
imum level of capriciousness, a minimum level, the actual capricious-
ness, and the proportion of capriciousness that is removed/that remains in
a system given the estimate of observed capriciousness in a system.
The maximum level of capriciousness, or its upper bound, is calcu-
lated as follows:
N*—((p * Ln p) + (q * Lng),
where: N is the number of cases, p is the proportion of cases
charged with a capital crime, Ln p is the natural log of the propor-
tion of cases charged with a capital crime, q is the proportion of
cases not charged with a capital crime, and Ln q is the natural log
of the proportion of cases not charged with a capital crime.
The minimum level of capriciousness, or its lower bound, is calcu-
lated as follows:
N*— ((I/N*Ln IN) + (I-I/N * Ln 1-1)),
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32 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
where: N is the number of cases, 1/N is the reciprocal of the total
number of cases, Ln 1/N is the natural log of the reciprocal of the
total number of cases, I—1/N is the reciprocal of the number of
cases subtracted from 1, and Ln I—1/N is the natural log of the reci-
procal of the number of cases subtracted from 1.
The total possible capriciousness in any given charging system is given
by subtracting the lower bound from the upper bound (UB—LB). This
gives us the range within which capriciousness in a particular group of
cases may fall, given the number of people charges with a capital offense
and the size of the group. While such a measure is based on an estimate of
the “unexplained variance,” it is not the same thing as the “unexplained
variance.” as is reflected in the calculations described above.
Weiss, Berk, and Lee (1996) use logistic regression to estimate the
actual amount of capriciousness in the charging system they investigate.
The actual amount of capriciousness, or C, is defined as the —2 Log
Likelihood Chi-Square/2, which is 1/2 the residual deviance.
The capriciousness removed from the system due to the predictors
used in a model is give by UB—C. This can be expressed as a percentage
of the total capriciousness in the system through the following calcula-
tion: (UB—C/UB—LB)* 100, which is the percentage of the capricious-
ness removed. The percentage of the capriciousness remaining is cal-
culated by subtracting the percentage removed from 100.
Our analytical strategy differs from Weiss, Berk, and Lee (1996) in
one important respect. They did not select a subset of death eligible cases
for their analysis, while we do. Therefore, our question is: “Among all
possible murders that meet the Kentucky legal requirement for death
penalty, what is the extent of capriciousness in the prosecutor’s decision
to seek the death penalty?”
DATA AND METHODS
Sample Selection
The overall population of cases includes all persons charged, indicted,
convicted, and sentenced for murder in Kentucky between December 22,
1976 (the date when the most recent Kentucky statute governing capital
punishment went into effect) and December 31, 1991 (N = 1177). We
have complete data on 949 of these cases. Of this population, 664 were
eligible to be charged with a capital crime. To be eligible for capital
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Thomas J. Keil and Gennaro F. Vito 33
charges in Kentucky during the period under consideration, a murder
must have been committed in conjunction with at least one of the follow-
ing crimes: Robbery, Burglary, Arson, Rape, or Sodomy-all in the first
degree. Other aggravating circumstances listed in the statute are the use
of a destructive device that creates a great risk of death to more than one
person in a public place, murder committed for profit, murders involving
multiple victims, and the murder of “special categories” of victims
(prison employees, state or local officials, police officers, sheriffs, or
their deputies) during the lawful performance of their duties. It is impor-
tant to note that in Kentucky the sex of the victim, the killing of a stranger,
and the “heinousness” of the crime are not factors that make a murder
death eligible. We eliminated all cases with missing data and the three
cases that were tried without juries, giving us a final N of 575 cases
(86.6% of the total available cases).
In order to determine the nature of possible biases that could result
from eliminating cases with missing data, we examined a series of
cross-tabulations. For the overall population, missing values on capital
charges and on sentence received occurred most frequently among the
cases that had lower values for independent variables. In other words,
cases with less serious homicides were the most likely to be excluded
because of missing values. Therefore, the data are not biased in such
way that the seriousness of the homicide is overestimated. In fact, the
results actually yield a conservative estimate of the effects of the various
predictors on the dependent variables. The variables we use are similar
to those employed by Weiss, Berk, and Lee (1996) and a number of
other studies of possible discriminatory effects in the capital sentencing
process. All of them have been found in one or more studies to influence
prosecutors’ decisions to seek the death penalty in homicide cases.
Measures
To develop the equations, we used the following set of independent
variables:
* Multiple murders, coded one if there was more than one victim and
zero otherwise;
¢ Female victim, score one if the victim was a woman and zero if it
was a man;
* Multiple aggravators, scored one if there was more than one ag-
gravating circumstance and zero if there only was one;
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34 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
* Violent history, a one was assigned to anyone who had at least one
previous conviction for a violent crime and a zero was given to all
other cases;
* Concur, persons who had a concurrent felony were given a score
of one and all others were given a score of zero;
* Barnett], individuals whose homicide could be classified as pre-
meditated were scored one and all others were scored zero (see the
Appendix for a description of the three dimension of the Barnett
scale of homicide seriousness (Barnett, 1985; Keil & Vito, 1989);
* Barnett2, alleged murderers who killed a stranger were scored one,
while those who killed someone they knew were given a zero; and
* Barnett3, a score of one was given to alleged murderers whose
crime was determine to be “heinous,” while a zero was given to
non-heinous murders.
In addition, we have three variables dealing with various races of the
killer-race of the victim combinations. These are:
© Black Killed Black, which is scored on one when both the victim
and the killer are Black and zero otherwise;
© Black Killed White, scored one when the killer is Black and the
victim is White and zero for all other cases; and
* White Killed Black, which is scored one when the killer is White
and the victim is Black and zero otherwise.
The dependent variable is whether or not a person is charged with a
capital crime. Those charged are scored one and all other cases are
scored zero.
RESULTS
Table | presents a frequency distribution for all of the variables used
in the analyses and Table 2 presents the cross-tabulation and the Chi-
Square test for the effect of race of the victim-race of the offender on
being charged with a capital crime. As can be seen in Table 2, there is
not much of an overall difference between the percent of Blacks and
percent of Whites who are tried before a death qualified jury. Among
Blacks, 27.1% of the eligible offenders are tried for a capital offense,
while among Whites 28.4% are charged with capital crimes. Differ-
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Thomas J. Keil and Gennaro F. Vito
TABLE 1. Frequency Distribution (N = 575)
35
Variable No Yes
Death Qualified Jury 15 (72.2) 160 (27.8)
MDeath 488 (84.9) 87 (15.1)
Barn1 56 (9.7) 519 (90.3)
Bamn2 412 (71.7) 163 (28.3)
Barn3 288 (50.1)) 287 (49.9)
KMagg 327 (56.9) 248 (43.1)
Concur 368 (55.7) 293 (44.3)
Violhist 211 (36.7 364 (63.3)
Femvic 387 (67.3) 188 (32.7)
BKB 469 (81.6) 106 (18.4)
BKW 515 (89.6) 60 (10.4)
WkB 557 (96.9) 18 (3.1)
wkw 184 (32.0) 391 (68.0)
Where: Death Qualified Jury indicates whether or not the accused is charged with a capital crime; MDeath
indicates the presence of multiple victims; Barn1 is a deliberate killing; Barn2 indicates whether a stranger
is killed; Barn4 is heinousness; KMagg is multiple aggravators; Concur indicates a concurrent felony;
Violhist indicates the presence of a prior conviction for a violent crime; Femvic indicates whether the victim
is a female; BKB is Black killed Black; BKW is Black killed White; WKB is White Killed Black; and WKW is
White killed White.
TABLE 2. Death Qualified Jury by Race of Killer-Race of Victim
Black White Totals
Black Kills Black Kills. White Kills White Kills
Black White White Black
No 89 (84%) 32(53.3%) 279 (71.4%) — 15 (83.3%) 415
Yes 17 (16%) 28 (46.7%) 112 (28.6%) 3 (16.7%) 160
Total 106 (18.4%) 60(10.4%) 391 (68%) 18 (3.1%) 575
Chi-Square = 19.186, 3 df, p = .000
ences emerge only when we look at the race of the offender-race of the
victim combinations. Here we see that Blacks who kill Whites have the
largest probability of being charged with a capital offense (46.7%),
followed by Whites who kill Whites (28.6%). Blacks who kill Blacks
(16.0%) and Whites who kill Blacks (16.7%) had a close to equal
chances of being tried on capital charges. As we can see, these differ-
ences are statistically significant.
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36 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
Given these findings, the question naturally arises as to whether these
effects persist in the face of controls for the nature of the crime and, by
extension, what amount of capriciousness is removed by the effect of
various characteristics of the crimes and of the criminal.
Equation | in Table 3 presents the results for our overall model for all
cases for which we Have complete data (N = 949). This equation is
comparable to the analysis carried out by Weiss, Berks, and Lee (1996).
As shown in Table 3, Equation 1, having an aggravator (Aggo), in and
of itself, is not a significant predictor of whether or not a killer is charged
with a capital crime. This indicates that a large proportion of the eligible
cases are not being charged with a capital crime. However, being
charged with a capital crime is positively related to committing a delib-
erate homicide, killing a stranger, and committing a heinous murder.
Two of the race variables are significant: Blacks who kill Blacks are less
likely to receive capital charges compared to Whites who kill Whites,
while Blacks who kill Whites are more likely than Whites who kill
Whites to be charged with a capital crime. The capriciousness in this
model, or C, is 319.315, with an upper bound of 435.346 and a lower
bound of 7.877. We remove 27.14% of the overall capriciousness with
the predictors we employed, meaning 72.86% remains. This is an amount
substantially greater than what Weiss, Berk, and Lee (1996) found for
San Francisco.
Equation 2 provides the basis for an estimate of capriciousness in the
total population of death eligible cases. As shown in Equation 2, who is
likely to be charged with a capital crime is a function of a variety of fea-
tures of the homicide. Murders that involve multiple victims, that have
multiple aggravating circumstances, that are premeditated, that involve
the killing of a stranger, and where the victim is female are likely to pro-
duce a decision to charge the alleged offender with a capital crime. Vio-
lent history also has a significant effect, but it is negative. The White
killed Black variable is not significant, while Black who killed a Black is
(using a one-tailed test) and Black killed White are significant. Blacks
who killed a Black are less likely than Whites who killed a White to be
charged with a capital crime, while Blacks who killed a White have a
significantly greater probability of being charged with a capital offense
than do Whites who kill Whites. These effects show that race of the victim
matters in the decision as to whether an alleged murderer will be
charged with a capital crime by Kentucky prosecutors and that it matters
even more if the killer happens to be Black.
Applying the formulas to determine capriciousness to the entire sam-
ple of cases that are death eligible, we find that these predictors remove
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38 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
20.39% of the total possible capriciousness in the charging system,
meaning that 79.61% remains. The measure of capriciousness (C) for
the total sample is 272.437. Possible capriciousness ranges from 7.389
to 340.033. Overall, the Kentucky charging system for capital crimes
functions more like a lottery than like a deterministic system that re-
sponds to the nature of the crime and/or the characteristics of the killer.
Not all people having the same objective profiles for the murders of
which they are being accused are being treated alike by the charging
system. The charging system exhibits a high degree of randomness.
This means that there are wide discrepancies in the ways in which pros-
ecutors are approaching each case. Capricious decision making is in
evidence.
We next divided the cases by race of the killer to see if the level of
chance varied between Whites and Blacks. Equations 3 and 4 present
the results of these analyses. In the model for White killers (Equation 3),
murders with multiple victims, that are deliberate (as measured by Bar-
nett1), that involve multiple aggravating circumstances, that are accom-
panied by another felony, and where the victim is a woman all have
increased probabilities of facing the death penalty. The only significant
negative effect was found for violent history, indicating that the bulk of
Whites being charged with capital murder did not have a history of prior
convictions for violent crimes. Killing a stranger (Barnett2), perpetrat-
ing a heinous murder (Barnett3), and killing a Black do not significantly
affect one’s chances of being charged with a capital crime among Whites.
Overall, for Whites, C (Capriciousness) is estimated to be 206.774.
Given that the range is from 6.989 to 243.883, the variables we use reduce
the total possible capriciousness by 15.64%, leaving 83.65% remaining.
This is slightly more than 79.61% we found for the total sample of death
eligible cases.
For Blacks, as a whole, (see Equation 4) we find that suspected mur-
ders are more likely to be charged with a capital crime if there are multi-
ple murders, the murder is premeditated (Barnett 1), the killing is heinous
(Barnett3), the killing is associated with a concurrent felony, and the
victim is White. In the Black equation, killing a stranger (Barnett2), the
presence of multiple aggravators, having been previously convicted for
a violent crime, and having killed a female are not significant predictors
of who is and who is not charged with a capital crime. Capriciousness
(C), in the Black equation is 65.304 and the possible capriciousness
ranges from 5.212 to 97.003. Therefore, the predictors remove 34.86%
of the possible capriciousness and 65.14% remains.
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Thomas J. Keil and Gennaro F. Vito 39
Based on these analyses, we conclude that capriciousness is far high-
er for white defendants than it is for black defendants in Kentucky. In
other words, the decision as to who will be charged with a capital crime
is far more random among white defendants than it is among black de-
fendants. As a whole, whites who are accused of murder and whose
crimes have similar characteristics are not being treated similarly in
Kentucky. At the same time, when Kentucky prosecutors have a case
where blacks are accused of murder, they are more likely (than in white
offender homicide cases) to treat the pool of cases as a homogeneous
group. Some part of this difference in the treatment of the pools of black
and white cases can be determined by the role played by race of the vic-
tim in the process.
Given the role that race of the victim plays in determining which
Black offenders will be charged with a capital crime, we divided blacks
into two separate groups by victim and estimated separate models for
Blacks who kill Blacks (Equation 5) and for Blacks who kill Whites
(Equation 6).
With respect to Blacks who kill Blacks, we see that being charged
with a capital crime is associated with two factors. For Blacks who kill
Blacks, murders that have multiple victims and that take place in con-
junction with other felonies, have a greater probability of producing
capital charges than do murders that lack these characteristics. Beyond
these two factors, nothing else is significant in influencing whether a
defendant is charged with a capital crime.
Capriciousness (C) for Blacks who kill Blacks is 32.456, while the
range is 14.314 to 41.03. Thus, the predictors that we use remove 40.0%
of the capriciousness and 60.0% remains. Thus, there is slightly less ca-
priciousness remaining in these circumstances than what we find for
Blacks, as a whole. For Blacks who kill Whites, being charged with a
capital crime is associated with premeditation, heinousness, and a con-
current felony. All of the other variables have non-significant effects on
receiving a capital charge. Capriciousness is 32.456 and the range is
7.93 to 36.354. The capriciousness removed is 24.76% and 75.24%
remains.
Equation 7 is for Whites who kill Whites. We have not estimated an
equation for Whites who kill Blacks because there are too few cases
(18). In Equation 7, we see that persons charged with a capital crime are
more likely to have multiple victims, committed a premeditated act, had
multiple aggravators, committed a concurrent felony, and had a female
victim. Violent history has a significant negative effect on being charg-
ed with a capital crime for Whites who kill Whites. Our estimate of C is
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40 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
201.597, the upper boundary is 235.086 and the lower boundary is 7.065.
The capriciousness removed is 14.69%, while that remaining is 85.31%.
Given the pattern of finding to this point, it also appears to be useful
for us to look at the levels of capriciousness by race of the victim. Equa-
tion 8 is for White Victims and Equation 9 is for Black Victims.
For White Victims, we see that murders where there are multiple vic-
tims, that are premeditated, that involve multiple aggravators, have a
concurrent felony, and that have female victims, all are more likely than
murders that lack these characteristics to bring a capital charge. Also,
those being charged are not likely to have a history of convictions for vio-
lence. We also find that Blacks who kill Whites are more likely than Whites
who kill Whites to be charged with a capital crime by prosecutors.
For the overall equation for White Victims, our estimate of C is
237.58, the upper boundary is 279.04, and the lower boundary is 7.110.
The capriciousness removed is 15.61%, while that remaining is 84.39%.
We also estimated capriciousness for this sub-sample before introduc-
ing the Blacks who kill Whites variable. Here, we found that the capri-
ciousness removed was 14.7%, with 86.3% remaining. Among the
killers of Whites, there is substantial randomness in the prosecutorial
decision to seek the death penalty. In a statistical sense, this randomness
is significantly reduced in the cases where Blacks killed Whites.
Equation 9 is for Black Victims. Having multiple victims, multiple
aggravators, and having committed a concurrent felony, along with the
homicide, all are positively related to being charged with a capital crime
when the victim is Black. The race variable, Blacks who kill Blacks, is
not significant in this equation. In the overall equation, which includes
the race predictor, C is 36.63%, the upper bound is 54.79% and the
lower bound is 5.824%. We remove 37.22% of the capriciousness and
62.78% remains. The percent removed is more than twice what we find
when the victim is White. There is virtually no change in C when we re-
move the Black kills Black predictor from the model, given that race of
the offender is not significant in this equation.
DISCUSSION AND CONCLUSIONS
This analysis demonstrates that capriciousness is a significant aspect
of the decision to charge persons with a capital crime in Kentucky.
In our overall population, and in the various subgroups examined, the
prosecutorial decision system is more random than it is deterministic.
Weiss, Berk, and Lee (1996) found substantially less capriciousness in
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Thomas J. Keil and Gennaro F. Vito 41
their study of San Francisco than we have found for Kentucky. Part of
this difference is a function of the fact that the variables used in the two
studies differ. In part, it is also a result of the analytical strategy. Weiss,
Berk, and Lee (1996) predicted who would receive a capital sentencing
charge without confining their analysis to death eligible cases. Had we
followed the same strategy, we would have removed 43.21% of the total
capriciousness in the entire population of cases for which we had com-
plete data in the overall model. However, this remaining level of capri-
ciousness is still higher (56.79%) than what Weiss, Berk, and Lee
(1996) found for San Francisco.
Another reason for the difference between the levels of capricious-
ness remaining in the two studies is related to scale. San Francisco is but
one charging jurisdiction within California. In our study, we focus on
the statewide charging system, in which each county prosecutor’ s office
in Kentucky makes the decision to proceed capital or not in murder
cases. Each prosecutor’s office is an independent agent, bound only by
the broad legal parameters within which it functions. Given prosecuto-
rial autonomy and discretion, it is possible that there is far more possi-
bility for variability in how these decisions are made and how various
criminal factors are weighted in making a decision to proceed forward
with capital charges against an accused murderer than one might find in
a single jurisdiction such as San Francisco.
Our results show that capriciousness is inherent in the way capital pun-
ishment decisions were being made in Kentucky, irrespective of race of
the killer and/or race of the victim. There are major variations in the
degree of capriciousness by race of the offender and race of the victim.
Capriciousness is higher for white than it is for black murderers. Capri-
ciousness is especially strong in those cases where the victims are white
(the largest proportion of homicides in Kentucky) and only slightly
higher when both the killer and the victim are white. There are a number
of reasons why this might be occurring. There might be a strong geo-
graphic/political cultural explanation for this effect. For example, ho-
micide rates are higher in Appalachia than they are anywhere else
in Kentucky, yet opinion polls show that residents of Kentucky’s
Appalachian countries have the strongest opposition to capital punish-
ment of any of Kentucky’s major regions (Appalachia; the Bluegrass,
centered around Lexington; Central Kentucky, centered around Louis-
ville/ Jefferson County; and Western Kentucky’s “Black Patch,”
so-called because of its production of black leaf tobacco, see Keil,
Andreescu, & Vito, 1999). In a region such as Appalachia (where the
overwhelming majority of murders involve both white killers and white
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42 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
victims), it may very well be that prosecutors use their “guided discre-
tion” to cull only small numbers of cases for prosecution on capital
charges. The cases selected for such charges may vary so widely both in
their legal and extra-legal characteristics that no distinctive patterns
may be found. In addition, it also may be that the way in which cases
featuring white killers and white victims are identified for prosecution
not only in this region but across the state varies greatly across county
boundaries. When aggregated to the statewide level, this variation leads
the capital sentencing process to behave in a random, rather than a sys-
tematic, fashion.
There is also considerable capriciousness in murder cases where
the victims are white and the killers are black—although the level of ran-
domness is substantially less than we find for white murderers who
have white victims. Again, the appearance of relatively high levels of
randomness in white victim/black offender cases may reflect differ-
ences in the ways in which such cases are viewed within and across dif-
ferent regions of the state by prosecutors and the public. The reduction
of uncertainty in murder cases featuring white victims and black offend-
ers can be attributed to the effect of such variables as: the level of pre-
meditation, heinousness of the murder and the presence of a concurrent
felony. These are all important factors in the determination of whether
cases where blacks kill whites (compared to cases where whites kill
whites) will be charged with a capital crime compared to which Whites
who have White victims will be charged with a capital offense.
When Kentucky prosecutors decide to proceed with capital charges
when the victim is white, they are most likely to do so when the killer is
black. When they prosecute cases involving black killers and white vic-
tims for a capital offense, these cases are far more homogeneous in their
legal and extra-legal characteristics than the cases involving white kill-
ers and white victims. Ironically, this clear cut definition of capitally
charged cases featuring black killers of whites is part of the very sub-
stance of the discriminatory treatment. If Kentucky prosecutors acted
with the same level of consistency toward white killers of whites as they
do with black killers of whites, discrimination in the charging system
would be eliminated.
Prosecutors are least arbitrary in the evaluation of whether or not
cases featuring black killers and black victims should proceed forward
with capital charges. However, given the relatively low rate at which
such cases are prosecuted, this may mean that prosecutors focus on
the very most “serious” cases (i.e., cases involving multiple victims and
concurrent felonies) when deciding to press capital charges. These are
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Thomas J. Keil and Gennaro F. Vito 43
the cases that the public would most readily accept as deserving of capital
punishment, even though the victim is a member of a “devalued” racial
category and about which the public might feel outraged if the death
penalty was not sought.
Given the level of randomness we found in the Kentucky system for
all combinations of race of the offender and race of the victim, our
results strongly mirror the conclusion that “the individualized justice
favored by the Supreme Court is a legal fiction or, at a minimum, an
approximation” (Berk, Weiss, & Boger, 1993b: 125) in cases involving
a decision as to whether or not they will proceed capital in the trial
phase. Instead of a system wherein defendants can be expected to be
treated by prosecutors in a non-capricious way, we have a system of
charging individuals for capital crimes that functions with extremely
high levels of randomness. There is seemingly very little rationality at
the capital charging system when it is examined at a statewide level—
even though any number of prosecutors, on an individual level, may be
behaving rationally and may be trying to not engage in arbitrary prac-
tices within their own jurisdictions.
This high degree of capriciousness exists because prosecutors have
complete discretion as to whom they will charge with a capital offense
among the pool of cases legally defined as death eligible. While legally
relevant factors certainly shape some portion of the decision as to whom
to charge with a capital crime and, hence, reduce randomness, they do
not completely eliminate capriciousness, because prosecutors are not
compelled within or across jurisdictions to treat any given legally rele-
vant circumstance the same way. They can ignore certain factors in fra-
ming their charges and can include others, including factors that have
no legal relevance, provided that there is at least one additional circum-
stance present in the killing that makes it a “death eligible” murder. As a
result, substantial randomness exists in deciding who, within the pool of
death eligible cases, is to be tried on capital charges and who is not.
Such capriciousness is likely to continue under the Gregg-sanction
guided discretion process that governs the capital sentencing process in
Kentucky.
REFERENCES
Acker, J.R. & Lanier, C.S. (1998). Death penalty legislation: Past, present, and future.
InJ.R. Acker, R.M. Bohm, & C.S. Lanier (Eds.). America’s experiment with capital
punishment: Reflections on the past, present and future of the ultimate penal sanction
(pp. 77-115). Durham, NC: Carolina Academic Press.
20:19 31 January 2011
[Richard Stockton College of New Jersey] At:
Downloaded By:
44 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
Arkin, S.D. (1980). Discrimination and arbitrariness in capital punishment: An analysis
of post-Furman murder cases in Dade County, Florida, 1973-1976. Stanford Law
Review, 33, 75-101.
Baldus, D.C., Pulaski, C., & Woodworth, G. (1983). Comparative review of death
sentences: An empirical study of the Georgia experience. Journal of Criminal Law
and Criminology, 74, 661-753.
Baldus, D.C., Woodworth, G., & Pulaski, C. (1985). Monitoring and evaluating con-
temporary death sentencing systems: Lessons from Georgia. U.C. Davis law Review,
18, 1375-1407.
Baldus, D.C., Woodworth, G., Zuckerman, D., Weiner, N.A., & Broffitt, B. (1998).
Racial discrimination in the post-Furman era: An empirical and legal overview,
with recent findings from Philadelphia. Cornell Law Review, 83, 1638-1770.
Barnett, A. (1985). Some distribution patterns for the Georgia death sentence. U.C.
Davis Law Review, 18, 1327-1374
Bedau, H.A. (1964). Death sentences in New Jersey 1907-1964. Rutgers Law Review,
19, 1-49.
Berk, R.A., Weiss, R.E., & Boger, J. (1993a). Chance and the death penalty. Law and
Society Review, 27, 89-110.
Berk, R.A., Weiss, R.E., & Boger, J. (1993b). Rejoinder. Law and Society Review, 27,
125-127.
Bienen, L., Weiner, N., Denno, D., Allison, P., & Mills, D. (1988). The reimposition of
capital punishment in New Jersey: The role of prosecutorial discretion. Rutgers
Law Review, 41, 27-372.
W.J. (1983). The pervasiveness of arbitrariness and discrimination under
post-Furman capital statutes. Journal of Criminal Law and Criminology, 74,
1067-1100.
Bowers, W.J. & Pierce, G.L. (1980). Arbitrariness and discrimination under post-
Furman capital statutes. Crime and Delinquency, 26, 563-635.
Bynum, A.E. (1988). Eighth and Fourteenth Amendments-The death penalty survives.
Journal of Criminal Law and Criminology, 788, 1080-1118.
Ekland-Olson, S. (1988). Structured discretion, racial bias, and the death penalty: The
first decade after Furman in Texas. Social Science Quarterly, 69, 853-873.
Foley, L.A. & Powell, R.S. (1982). The discretion of prosecutors, jurors, and jurists in
capital cases, Criminal Justice Review, 7, 16-22.
Furman v. Georgia, 408 U.S. 236 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
Gross, S.R. & Mauro, R. (1988). Death and discrimination: Racial disparities in capital
sentencing. Boston: Northeastern University Press.
Johnson, G.B. (1941). The Negro and crime. Annals of the American Academy of
Political and Social Science, 217, 93-104
Keil, T.J., Andreescu, V., & Vito, G.F. (1999). Kentuckian’s changes in attitudes to-
ward the death penalty. The Justice Professional, 12, 123-143.
Keil, TJ. & Vito, G.F. (1989). Race, homicide severity, and application of the death
penalty: a consideration of the Barnett scale. Criminology, 27, 511-535.
Keil, T.J. & Vito, G.F. (1990). Race and the death penalty in Kentucky murder trials:
An analysis of post-Gregg outcomes. Justice Quarterly, 7, 189-207.
20:19 31 January 2011
[Richard Stockton College of New Jersey] At:
Downloaded By:
Thomas J. Keil and Gennaro F. Vito 45
Keil, T.J. & Vito, G.F. (1991). Kentucky prosecutors’ decisions to seek the death pen-
alty: a LISREL model. In R.M. Bohm (Ed.). The death penalty in America: Current
research (pp. 53-70). Cincinnati, OH: Anderson Publishing and American Acad-
emy of Criminal Justice Sciences.
Keil, TJ. & Vito, G.F. (1995). Race and the death penalty in Kentucky murder trials:
1976-1991: A study of racial bias as a factor in capital sentencing. American Journal
of Criminal Justice, 20, 17-36.
Khinchin, A.I. (1957). Mathematical foundation of information theory. New York:
Dover
McCleskey v. Kemp, 107 S. Ct. 1756 (1987).
Myers, M.A. & Hagan, J. (1979). Private and public troubles: Prosecutors and the allo-
cating of court resources. Social Problems, 26, 489-51
Myrdal, G. (1944). An American dilemma, Volume 2. New York: Harper and Row.
Nakell, B. & Hardy, K.A. (1987). The Arbitrariness of the Death Penalty. Philadel-
phia: Temple University Press.
Paternoster, R. (1983). Race of the victim and location of crime: The decision to seek
the death penalty in South Carolina. Journal of Criminal Law and Criminology, 74,
754-85.
Paternoster, R. (1984). Prosecutorial discretion in requesting the death penalty: a case
of victim-based racial discrimination. Law and Society Review, 18, 437-78
Radelet, M.L. (1981). Racial characteristics and the imposition of the death penalty.
American Sociological Review, 49, 46-70
Radelet, M.L. & Pierce, G.L. (1985). Race and prosecutorial discretion in homicide
cases. Law and Society Review, 19, 587-621.
Smith, M.D. (1987). Patterns of discrimination in assessments of the death penalty:
The case of Louisiana. Journal of Criminal Justice, 15, 279-86.
United States General Accounting Office (1990). Death penalty sentencing: Research
indicates pattern of racial disparities - GAO GGD-90-57. Washington, DC: U.S.
General Accounting Office.
Vito, G.F. & Keil, T.J. (1988). Capital sentencing in Kentucky: an analysis of factors
influencing decision making in the post-Gregg period. Journal of Criminal Law
and Criminology, 79, 483-503.
Vito, G.F. & Keil, T.J. (1990). Race and the death penalty in Kentucky murder trials:
An analysis of post-Gregg Outcomes. Justice Quarterly, 7, 189-207.
Weiss, R.E., Berk, R.A., & Lee, C.Y. (1996). Assessing the capriciousness of death
penalty charging. Law and Society Review, 3, 607-26.
Zeisel, H. (1981). Race bias in the administration of the death penalty: the Florida
experience. Harvard Law Review, 95, 454-68.
Downloaded By: [Richard Stockton College of New Jersey] At: 20:19 31 January 2011
46 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
APPENDIX
THE BARNETT CLASSIFICATION SYSTEM
I. THE CERTAINTY THE DEFENDANT IS A DELIBERATE
KILLER.
Score the case either 0, 1, 2 on this dimension, applying the follow-
ing criteria:
(I) The case is rated 0 if any of the following circumstances pertain:
(1) The narrative indicates the evidence in the case seemed weak
(e.g., “case based solely on circumstantial evidence”).
(2) The narrative mentions evidence that worked against the view
that the defendant was guilty (e.g., tests for residue on the de-
fendant’s hand from firing a gun were negative).
(3) Itseems clear that the defendant neither ordered the killing nor
was the triggerman. (note that (3) differs from the weaker state-
ment that it is uncertain whether the defendant was the trigger-
man).
(4) The killing has an “accidental” touch about it, because
(a) a fairly long period (perhaps a week or more) elapsed bet-
ween the incident and the victim’s death, or
(b) the death was caused by a shot fired somewhat randomly
(e.g., through a door), or
(c) the death was caused by a beating similar to previous beat-
ings of the victim by the defendant.
(5) There is reason to doubt that the defendant’s actions in them-
selves would have caused the victim’s death (e.g., (I) the de-
fendant beat the victim, but it was a co-perpetrator’s stabbing
that killed him or
(i) The defendant’s beating of the victim induced a heart seizure.
(6) The defendant was one of several participants in a conspiracy
to kill, but took no part in the actual killing.
(7) The narrative mentions that the defendant was previously
treated for mental problems (e.g., institutionalized). Neglect
references to insanity if the defendant has no apparent medical
history.
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(ii)
(iii)
I.
Thomas J. Keil and Gennaro F. Vito 47
The case is rated 2 if any of the following elements were present:
(1) The killing was a murder-for-hire, and the defendant was either
the sole instigator or the executioner.
(2) The defendant plotted to kill the victim (e.g., a wife and her
lover arrange to murder her husband). If, however, the defen-
dant was one of several plotters, and clearly not the actual
killer, assume (2) is not satisfied.
(3) The narrative mentions that the defendant was officially impli-
cated in other killings.
(4) The narrative mentions that the defendant had tried previously
to kill the victim.
(5) The defendant announces in advance to a third party an in-
tention to kill the victim. (Neglect this condition in a lover’s
triangle or lover’s quarrel case, or when the third party was a
co-perpetrator.)
Tf the killing warrants neither a 0 or a 2, give the case a rating of 1.
If the killing satisfies conditions for both 0 and 2, also rate it a 1.
Most “common” slayings, such as killings during armed robberies
or during barroom fights, would warrant this intermediate classifi-
cation. Indeed, a 2 reflects unusually clear evidence of premedita-
tion, while a 0 reflects unusually large doubt that the defendant
knowingly acted to cause the victim’s demise.
THE STATUS OF THE VICTIM
On this dimension, the score is either 0 or 1. Give a score of 0 if:
(1) The victim was a relative of the defendant (even his or her
child).
(2) The victim was a friend of the defendant. (Interpret the work
“friend” loosely; if, for example, two people of similar age
are riding together voluntarily in a car, consider them friends.
However, the mere fact that two people know each other is
not sufficient. Neighbors of vastly different ages, or the bank
teller and the depositor are not assumed friends barring other
evidence of social ties).
(3) The victim was an enemy of the defendant, though not the
defendant’s employer. (Interpret the word “enemy” loosely;
if, for instance, the victim and defendant vied for the affec-
tions of the same woman, if the victim had harassed one of
the defendant’s loved ones, if there was a feud of some sort
that turned violent, assume enmity existed. If, however, the
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JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
victim could be viewed as the defendant’s employer—whether
as (say) his supervisor in a factory or the person who hired him
to perform some chores do not give a score of 0 under (3).
Tf the case does not warrant the rating 0, give it the score 1, 1 is
the appropriate rating for most stranger-to-stranger killings
and those in which the defendant only knew the victim in the
latter’s official capacity (e.g., as employer, or attendant in a lo-
cal gas station). If there are several victims, give the case a 0 if
any of the those slain qualify for it.
Ill. THE HEINOUSNESS OF THE MURDER
There are two aspects to this dimension: the question of whether
self-defense motivated the killing and how “gruesome” it was.
Self-defense is an element in the case under any of the following
circumstances:
(1) The victim had at hand a deadly weapon at the time of the kill-
ing. (Merely having a gun in the store or house does not satisfy
(1)).
(2) The victim was killed with his own weapon. (This is taken to
imply (1) is satisfied even if the narrative does not explicitly
say so). NOTE: If the victim was a police officer, do not invoke
self-defense (1) or (2) unless the officer fired shots before the
defendant did.
(3) The victim had threatened to kill the defendant or one of the
defendants’s loved ones.
(4) The victim had attacked at the time of the killing.
Tf none of the above conditions existed, self-defense was not a
mitigating circumstance in the homicide.
Note: If the only evidence of self-defense is the defendant’ s un-
corroborated claim, assume its absence even if any of (I)-(4) is
alleged.
A homicide is classified as vile if one of the following circum-
stances is present:
(1) It was accompanied by rape, or sexual abuse, either
against the victim or someone in the company of the vic-
tim.
(2) There were at least two homicide victims.
(3) The deceased was a kidnapping victim at the time he was
slain.
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(4)
(5)
(6)
(7)
(8)
(9)
(10)
Thomas J. Keil and Gennaro F. Vito 49
Psychological torture preceded the killing (e.g., Russian
roulette, a sustained period of terror).
The victim was shot several times in the head at close
range.
The killing was execution-style (i.e., victim forced to
kneel or squat, then shot in the head).
The death was caused by strangulation, or arson.
The death was caused by drowning in which physical
force kept the victim below water.
The killing involved ten (10) or more shots or stab
wounds, except when the murder weapon was a penknife
or other small cutting instrument.
The physical details of the killing are unusually repulsive
(e.g., the victim drowned in his own blood).
(11) The body was mutilated, or otherwise grossly disfigured
(except in attempt to conceal the homicide).
(12) The killing was performed with a bizarre weapon (e.g., a
hacksaw, a claw hammer, and icepick).
(13) The defendant apparently derived pleasure from the very
act of killing. (This is distinct from his believing the vic-
tim deserved to die, and taking pleasure on that account).
(14) The crime was specifically described in the narrative as
extremely bloody.
Absent all these circumstances, the homicide is categorized as not vile.
Despite the length of the list above, most “simple” shootings, stabbing,
and beating would not be classified as vile under these rules.
