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September 23, 2020

Some timely data and discussion about race as we consider McClesky (and also about execution methods)

InterracialThough I provided in this post a working draft of a proposed "Ohio Racial and Gender Justice Act" (which I hope to discuss in class on Thursday), I now realize it makes sense to also provide here some recent data and discussion on how race seems to impact our capital justice systems.  

From the Death Penalty Information Center: "Executions by Race and Race of Victim" and a huge new report titled "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty."  An excerpt:

Throughout the modern era of capital punishment, people of color have been overrepresented on death row.  In 1980, 45.6% of death row prisoners were people of color, and this percentage has increased every decade. By 2019, this percentage had risen to 57.8%.  Currently, white and African-American prisoners each comprise 42% of those on death row and Latinx prisoners make up 13%, with 3% of death row comprised of other races/ethnicities.   These figures can be contrasted with the racial and ethnic makeup of the population as a whole. Approximately 60.4% of the population is white.

The opposite trend is apparent in the racial composition of the victims of those who have been executed in the modern era. Seventy-five percent of murder victims in cases resulting in an execution have been white, even though only half of murder victims are white.  In cases with victims of a single race, 295 African-American defendants have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder of African-American victims.

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies).

From NPR here is a brand new piece, titled "How A Perpetrator's Race And Age Factor Into Who Is Executed," speaks to these issues in the federal system with the scheduled upcoming execution of Christopher Vialva, a black man who killed white victims.  An excerpt:

REPORTER: Vialva is not claiming he's innocent. Instead, his case resembles most of those that end in the death house in Indiana. Like Vialva, who was 19 when he killed the Bagleys, 1 in 4 of the men on federal death row committed their crimes before they reached the age of 21. And of the 57 people on the row, more than half are people of color. Sam Spital is director of litigation at the NAACP Legal Defense Fund.

SAM SPITAL: There have been over 500 cases between 1988 and now where the attorney general of the United States authorized federal prosecutors to seek death. And in over two-thirds of those cases, the defendant was either Black or Latinx. And in only about a quarter of the cases was the defendant white.

REPORTER: Spital says the race of the victim also matters a lot.  Defendants who kill white people are 17 times more likely to be executed.  He says those disparities exist in both the state system and the federal system.

And what about Ohio? Helpfully, we have this fairly recent study from Frank Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions."  An excerpt:

Between 1976 and 2014, the state of Ohio executed 53 men.  Here are a few key findings of this research:

  • Sixty-five percent of all executions carried out in Ohio between 1976 and 2014 were for crimes involving White victims despite the fact that 43% of all homicide victims are White.
  • Only 27% of all homicide victims are female, but 52% of all executions carried out in Ohio were for homicides involving female victims.
  • Homicides involving White female victims are six times more likely to result in an execution than homicides in involving Black male victims.

And speaking of NPR and Ohio, NPR has also recently had two big pieces about lethal injection execution methods that have important coverage of Ohio (and discusses the work of a notable former member of this class). I highly recommend these pieces if you are interested in the debate over execution methods or Ohio's history with executions:

"Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection"

"Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment"

September 23, 2020 in Class activities, Data on sentencing, Death penalty history, Execution methods, Ohio news and commentary, Race and gender issues | Permalink

Comments

Looking at Baumgartner's data, I'm not super convinced that some of his conclusions are warranted.

Primarily, "At the very least, this data should give prosecutors pause when determining whether to
seek the death penalty."

What if the prosecutors were voted / put in place because the people of that county wanted a harsher punishment? I am going out on a limb but thinking that's what the people of Hamilton County wanted when they cast their votes. Of course if the system is not executing justice correctly by incorporating racial biases that's bad. But just because the executions took place does not inherently mean it's a negative data point.

While I personally love data, I think aggregating it can wash away the detail. This would most certainly be the case where jury discretion is at the higher end of the scale, for if the jury selection process is working correctly, then that discretion should be good right? We're only executing the people who judged by their peers, in their county, are found to have been bad enough to warrant the death penalty.

Correlation does not equal causation. Each time that mistake occurs a puppy dies.

Posted by: Christopher Wald | Sep 23, 2020 10:51:00 PM

Today's class reinforced my fledgling notion that aggregating data in the sentencing area can be really problematic. You can see that in the comments from the previous post about the statute - what data can you rely on to show that the crime was motivated by race or gender? Then, if you add up 1000 of those crimes and try to draw conclusions from that, I feel like it would wash away the detail from each case. This leads me to believe that more jury discretion is good because the cases differ too much.

Posted by: Christopher Wald | Sep 24, 2020 9:44:34 PM

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