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March 7, 2007
Class readings on McCleskey, race and the death penalty
Though I seriously doubt we will get to these materials before next week, I wanted to post now the materials and ideas that Benjamin and Katherine have sent my way to facilitate our examination of race and the death penalty: ---------
McCleskey v. Kemp has been called "the most far-reaching post-Gregg challenge to capital sentencing." In covering the topic, we plan on briefly discussing the holding of McCleskey, looking at some of the statistics involved, looking at the arguments involved on both sides and talking about some current thoughts on racial disparity. Please re-familiarize yourself with the McCleskey decision (Professor Berman will hand out an excerpt on Wednesday) and read the following:
- Article by John C. McAdams on Racial Disparity and the Death Penalty
- Homicide Trends by Race
- Text of the Kentucky Racial Justice Act
- General link on DPIC concerning Race and the Death Penalty
We also ask everyone to respond to the following questions in the comments section of the blog:
- What factors do you believe lead to the apparently overt disparate racial outcomes as reported by the Baldus Study?
- If race is a factor, how do you believe it is factored into the death penalty equation? Is it a statutory bias, a legislative purpose bias, a legislative intent bias, a prosecutorial bias, a juror bias, a victim bias, a defendant bias, a reality of criminal demographics, some other racial manifestation, something else entirely?
- Assuming the validity of the Baldus Study and its statistical findings, what do you believe should be proper response to such disparate racial outcomes?
- Do you believe that a statute such as Kentucky’s Racial Justice Act can properly safeguard against the use of race as a factor in meting out the death penalty? If not, can there be any effective safeguards that can protect against this bias short of getting rid of the death penalty?
March 7, 2007 in Course requirements | Permalink
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Comments
Let me get the ball rolling with some simple answer to all these hard questions:
1. Lots and lots of social/psychological factors.
2. All of the above.
3. Greater education and legislative and executive guidelines to help regulate race-influenced decision-making.
4. I think the Kentucky Act is a small step in the right direction, though many more steps are needed. I do not think abolition is a sound response to any disparity concerns.
Posted by: Doug B. | Mar 12, 2007 1:03:27 PM
Interesting psychosocial nuances in this article in the Monday NYT:
Posted by: scott | Mar 13, 2007 12:31:25 AM
1. What factors do you believe lead to the apparently overt disparate racial outcomes as reported by the Baldus Study?
Many social, economic, and psychological factors including, but not limited to, race, poverty, availability of representation, and mitigating/aggravating factors.
2. If race is a factor, how do you believe it is factored into the death penalty equation? Is it a statutory bias, a legislative purpose bias, a legislative intent bias, a prosecutorial bias, a juror bias, a victim bias, a defendant bias, a reality of criminal demographics, some other racial manifestation, something else entirely?
I think all of these biases play a role, but prosecutorial bias seems to be the most prevalent. To me, this bias encompasses many of the other bias: Because there is a juror bias (perhaps) against blacks, but mostly against black victims (which is tied to the reality of criminal demographics), prosecutors only bring cases in which they can over come these biases and win and thus prosecute cases that lead to the racial disparities in both the number of blacks prosecuted and the lack of “justice” for black victims.
3. Assuming the validity of the Baldus Study and its statistical findings, what do you believe should be proper response to such disparate racial outcomes?
I don’t believe the death penalty should be abolished because the disparities that are found in the death penalty are found in all areas of sentencing. Abolishing the death penalty for this reason would lead to the logical conclusion (in my opinion) that the entire sentencing scheme of criminal justice should be abolished. I believe the best way to deal with the situation is to bring these disparities to the attention of those making decision, namely prosecutors, who can decide to prosecution on a fairer basis. Also, I believe legislative intervention, like the statute Kentucky passed, can help to even out the current issues; however, ultimately, I believe the ultimate solution is in the hands of prosecutors.
4. Do you believe that a statute such as Kentucky’s Racial Justice Act can properly safeguard against the use of race as a factor in meting out the death penalty? If not, can there be any effective safeguards that can protect against this bias short of getting rid of the death penalty?
I believe Kentucky has gotten off to a good start, but I’m not sure any statute can completely get rid of the use of race. The use of race can only be completely eliminated if the people in charge decide to stop using race as a factor.
Posted by: Tiffany L. | Mar 13, 2007 8:51:54 PM
1. I'll echo the last two posters and say "lots of factors," but I think at the root, at present day, economics probably have the most to do with it.
2. A little bit of all of them - again, another unique thought by Brett. Go me.
3. I acknowledge that abolition is probably not a following-logically type of step in addressing racial disparity, but it is possible that it could be one of many symptoms of an otherwise sick and dying practice asking to be euthanized (should a doctor be present when the death penalty is put down?). I think education here is the big one. It's possible that a lot of the institutional bias is completely unconscious and until it's brought to the fore in the minds of the public, the disparity might remain.
4. I'm sure it's at least a marginal step, but I'll fall back on educational measures as the best option.
Posted by: Brett T. | Mar 13, 2007 9:10:28 PM
Comment related to this discussion: I just read on another blog (tcask.blogspot.com, which did not cite a source, so I cannot offer one, and I cannot confirm that this is true) that racial minorities are disproportionately morally opposed to the death penalty, and because such persons cannot be "death qualified" and serve on a jury in a capital case, that further skews the racial makeup of the jury, and could de facto further skew the racial disparity in the application of the death penalty.
Posted by: Brett T. | Mar 13, 2007 9:29:47 PM
Brett,
This doesn't directly answer your question about moral opposition to the death penalty and "death qualification", but in researching RSB I found this somewhat related
article:
http://www.democracyinaction.org/dia/organizations/ncadp/news.jsp?key=2075&t= which says that "national polls show African Americans split evenly on capital punishment. Though whites favor the death penalty 3 to 1, nearly 50 % of blacks favor execution for convicted murderers regardless of race."
Posted by: Katherine L | Mar 14, 2007 9:35:45 AM
1. I didn't grow up in the south, but I do know that there are still a lot of people who (consciously or not) ARE racist. So in that sense (especially since the study took place in GA 20-30 years ago) I would have expected the disparate outcome.
2. Race is certainly a factor -- I think less so at the level of legislative purpose/intent or juror intent, and more at the level of police interaction with the accused, prosecutor bias, death qualification, and juror bias (whether based on race or socio-economic status or a combination of both). Assuming the validity of the Baldus study -- I think the death penalty is such a small piece of a larger problem that there is no way to "fix it" unless we fix society.
3. No (not to say the intent isn't laudable). But I'm pretty sure total abolition for race discrimination is not a good idea -- something about the Van Den Haag quote definitely resonated with me.
Posted by: Kate G. | Mar 14, 2007 9:48:36 AM
As a side note to Kate's post about not being from the south, I think that growing up in the north probably exposes you to even more racism. I found this link:
http://www.censusscope.org/us/rank_dissimilarity_white_black.html
which notes that the top 10 most segregated metro areas in the US are in the north.
1. I think years of racism in our country have led to all Americans having unconscious assumptions about how the race of an individual affects who they are. This impacts all areas of society, and would of course impact how the death penalty is implemented.
2. As indicated in 1, I think that the issue of race pervades society and the criminal justice system in particular, so I think it impacts all of the systems mentioned.
3&4. I don't think that the Kentucky statute will be very helpful. When people are not aware that their actions are racially biased, especially when they are not overt, it is difficult to implement. Plus society is biased in so many ways, that focusing only on prosecutorial discretion is a band-aid. I am not sure how to address racism as a whole, because I think that addressing it on an institutional and systemic level would be the only effective measure.
I would like to use the disparate impact to abolish the death penalty, but I admit that it would be self-serving, and not the logical solution.
Posted by: Kristin | Mar 14, 2007 11:45:28 AM
1. I agree with all of the previously stated reasons, but I particularly think the economic factor plays a huge role.
2. I think it is a prosecutorial and victim bias, but also a bias based on who can afford quality representation and who jurors feel they can identify with. When we are dealing with racial minorities, even if the jurors are not racists themselves, they may be less inclined to sypathize with a defendant because the person is not like them, either racially or economically or both.
3. I think legislation is a good first step, although tough to implement. Ultimately, we are dealing with factors that are inherent in society, and abolishing the death penalty may be the only response that rids the injustice.
Posted by: Kurt | Mar 14, 2007 1:40:20 PM
1. I think that both overt racism and adequacy of representation based on socioeconomic factors contribute greatly to the disparate outcomes in the Baldus Study.
2. I think it is some combination of the named factors, but I believe that prosecutorial bias and juror bias have the most potential to perpetuate racism.
3. I believe ensuring adequate representation for minority defendants would help to alleviate some of the disparate outcomes based on race.
4. I think Kentucky's statute is a step in the right direction, but is not enough to eliminate this problem. Education about racial differences and disparities could help.
Posted by: Caitlin D | Mar 14, 2007 1:40:48 PM
Ladies and gentlemen, boys and girls, children of all ages,
Katherine and I had only two more slides to go over, one of which was the Kentucky Racial Justice Act and the other was a quote by Ernest van den Haag, both of which were intended to drum up class discussion. I’m going to take the liberty to post them here tonight to give anyone who wants it the opportunity to respond on the blog or at the beginning of class.
1. First, the consensus seems to be that the Kentucky Racial Justice Act, although laudable in spirit, is insufficient to solve the problem. Does anyone believe the Act will have more robust remedial consequences?
2. Professor Berman proposed an alternate version of the Racial Justice Act for Ohio that shifts the burden of proof to the Prosecution to show that race was not a factor in seeking the death penalty in each individual instance. Comments? Does anyone believe this would still be insufficient?
3. One comment on the blog mentioned the proposition that racial minorities are “disproportionately opposed” to the death penalty. Assuming this is true (although Katherine found evidence that it is not necessarily so) what should we do with this information? Should it matter? It would explain why racial minorities are excluded from death-qualified juries but it may also explain why the death penalty is not sought in response to some minority victims – for if a given victim’s family are opposed to the death penalty, it may preclude the entry of victim impact statements that many jurors rely during their death-phase deliberations. Also, if racial minorities were “disproportionately opposed” to other means of punishment, such as prison, we wouldn’t eliminate prisons – or would we? Should we?
4. Comments on the blog indicate that even those opposed to the death penalty agree that racially disparate results in the death penalty arena do not logically lead to the conclusion that the death penalty should be abolished. Does anyone disagree and have an argument that racially disparate results do logically lead to such a conclusion?
5. Lastly, the Ernest van den Haag quote:
“Guilt is individual. If guilty whites or wealthy people escape the gallows and guilty poor people do not, the poor or black do not become less guilty because the others escaped their deserved punishment. Whether due to willful discrimination, capriciousness, or unavoidable accidental circumstances, some people will always get away with murder. Is that a reason to deny the justice of the punishment of those guilty persons who did not get away? Their guilt is not diminished by the escape of the others, nor do they deserve less punishment because others did not get the punishment they deserve. Justice involves punishment according to what is deserved by the crime and the guilt of the criminal -- regardless of whether others guilty of the same crime escape.”
Are there any additional thoughts or comments on this quote? If one is coming at the overall issue from a utilitarian perspective, he may be less inclined to agree with van den Haag, but from a retributive standpoint, it seems to strike the appropriate chords.
I believe that is all additional that I had to offer; Katherine may have some additional comments. We encourage and appreciate any questions, comments, or criticisms. Well, maybe not the last one. Thank you!
Posted by: Ben D | Mar 14, 2007 10:02:57 PM
As for the proposed "Ohio" Racial Justice Act, which would place the burden on the prosecution of proving that race was not a factor when seeking the death penalty, I believe this would be problematic for two reasons. First, you would be forcing the prosecutors to prove a negative. How are they supposed to prove that something was not a factor? The absence of something is very hard to prove, and I can't imagine, practically, how this would happen. Second, much like the criticisms surrounding race-based voir dire questions, by giving voice to the race issue, you are necessarily making it an issue where it otherwise may not have been. If the defense believes that race was an issue in the case, I belive it is their responsibility to prove that fact and to bring it to the court's attention.
Posted by: Kacey | Mar 15, 2007 12:40:22 PM
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