Is the death penalty inherently unfair?: An examination of the viability of race-based claims in the McCleskey era

-- By EricaSelig - 15 Apr 2010

Roughly 50% of murder victims in the United States are white. Yet, 80% of criminal defendants put to death since 1976 were convicted of killing whites. Because people tend to kill within their own race, one would expect that there are significantly more white defendants punished by the death penalty. In fact, more than half of those on death row are people of color, with Hispanics accounting for 11% and African Americans for 42%. (From the EJI). These discrepancies beg the question: Just how big of an impact does race have on the decision-making processes of prosecutors, judges, lawyers, and juries?

Looking to one of the larger death rows, that of California, the statistics become more troubling. 27.6% of murder victims in the state are white, but 82% of those executed were put to death for killing whites. And the race of the defendant also helps to predict those >1% of murder defendants that end up on death row in CA: Simply put, blacks who kill whites are more likely to be sentenced to death than whites who kill whites. (From Radelet).

Cases involving the death sentence take many years to litigate and often because of prosecutorial misconduct and procedural mishaps, defendants have their sentences lessened to life without parole. Do you know if there has been a decline in the number who start off on death row and end up with a lesser sentence? Maybe this could point towards a trend of growing awareness of the race factor and the unpopularity of the death penalty. There has been a nationwide trend of smaller death rows (although not in California). I don't know that there has been a decrease of people assigned to death row who later received LWOP. It probably depends a lot on the Supreme Court of a given state. I know that in California the Supreme Court has been really unreceptive for the past several years to sentence appeals and habeas claims. Ultimately though, I don't think an increase in the number of criminal defendants who lose their appeals or habeas claims would be a positive development in the justice system.

Unfortunately, this question of disparate impact that appears to be endemic throughout the criminal justice system is something federal courts are no longer interested in addressing. McCleskey v. Kemp, decided in 1987, has essentially disallowed disparate impact statistics from exonerating defendants. Without the smoking gun of exceptionally clear evidence of purposeful discrimination, a criminal defendant will lose a race-based claim. The Court in McCleskey was concerned about the policy consequences of acknowledging discrimination: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system...Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.” McCleskey, 482 U.S. 920, 314 (1987). Also problematic was that deciding for McCleskey could potentially have resulted in all those African Americans with white victims on death row being exonerated, as the Court wasn’t willing to stop the death penalty completely.

This paper will address the problems facing criminal defendants with claims of racial discrimination in light of McCleskey, explore strategies in attempting to transcend the McCleskey framework, and ultimately argue for the abolishment of the death penalty.

In "Race and the Death Penalty Before and After McCleskey," Anthony Amsterdam posits four ways to address McCleskey: accept it, work to overrule it, co-opt it through creative litigation, or raise race-based challenges in other forums. Since acceptance is not an option and overruling unlikely, the best strategy for criminal defendants is to subvert the McCleskey decision through new and creative legal frameworks. Technically, McCleskey does not apply in the context of countywide, rather than statewide, discrimination. By providing overwhelming evidence for the inference that race does play a deciding role in the decision to impose the death penalty in the context of a single county, criminal defendants can not only win their cases but also raise public awareness and outrage about this problem. Furthermore, courts are much more likely to consider evidence solely about the defendant’s race rather than just that of the victim. Where these patterns occur, they should be litigated.

Unfortunately, not only does McCleskey provide a serious legal hurdle for death penalty advocates, so does the cost of engaging in high-stakes litigation and conducting sophisticated statistical analyses. Sometimes data on the prosecutorial decision-making process is simply not available or prohibitively expensive to collect. Charging decisions and overall prosecutorial discretion in capital-eligible cases need greater transparency and oversight, considering overwhelming evidence of the role race plays in the process (There have been over twenty studies confirming this since McCleskey).

Yet while the average public defender does not have the option of choosing a client or pursuing these analyses, if race is a viable issue, there are ways to frame this claim with more potential for success. Racial prejudice takes two forms in sentencing: it can falsely inflate aggravation and decrease valid mitigation. That is, on the whole, race can tend to make prosecutor or a jury hold a defendant more culpable and find any mitigating circumstances less compelling. David Baldus found this pattern particularly strong in the context of black defendant/white victim cases where the jury was composed of five or more white males.

If a defendant is pursuing a race-based claim through alternative forums, such as a clemency hearing or a state court that has legislation that allows for disparate impact to be considered (Kentucky and North Carolina), a defendant has a much greater chance of success. Is this true? The clemency process and pardon boards are HIGHLY political and the victims and the victims' family and friends are always involved and allowed to voice their opposition. It's true to the extent that a defendant has no chance of being exonerated on evidence of discriminatory impact in a normal judicial forum, since courts are bound by McCleskey. On the other hand, a defendant could have a fighting chance in a clemency hearing. I raised this example as the Baldus article was written to assist a defendant in a clemency hearing. Of course politics play a role, but in that particular district, evidence of disparate impact was very damning; there wasn't a single white defendant on death row, and there were many examples of defendants similarly-situated to the defendant who weren't subject to death. Even in jurisdictions where McCleskey controls, if other evidence can be found of prosecutorial habits of racial discrimination, and statistics aren’t presented alone, there is also a fighting chance that racial discrimination will be found.

Ultimately, Equal Protection should be extended to those facing systemic and systematic discrimination in addition to protecting those who can prove specific instances of racial animus. The right to equal protection is not currently available to inmates or people charged with crimes? In this paper, I'm arguing that equal protection is not being extended to people charged with crimes, because disparate impact may not be used to establish racial animus, and many studies that have controlled for race have found that African American defendants have a greater chance of being assigned death. EP is also not being extended to victims, as white-victim crimes are both prosecuted more heavily (hence the 80% statistic in the first paragraph) and given a too-large share of police resources. Have I not made this point clearly? Would you recommend anyway to clarify? According to Amsterdam, “in the long run, the Supreme Court will probably deliver the constitutional coup de grace to capital punishment after enough other agents in the criminal process and organs of government…have become so disaffected with the penalty that death sentences turn vanishingly rare.” Yet hopefully, through the work of advocates and activists in the field, this process can be made more rapidly. There are many reasons to abolish the death penalty: it’s significantly more expensive than life without parole, it has no deterrent effect, this punishment is felt collaterally by the defendant’s family and community, many consider the death penalty a perverse way of “purifying” society by placing sole blame on the criminal defendant when in many cases, institution after institution has failed that defendant, and for every eight people executed by the death penalty, one has been proved innocent. Yet, for me, the most compelling reason to abolish this institution is its history and current state of systemic and systematic racial discrimination and its parallels to lynch mobs. If we really want to move on, as a society, not just from McCleskey, but from our history of oppressing minorities, we need to take a hard look at why we jail and execute disproportionately more African Americans and figure out how to fix this problem. We simply can’t solve it by ignoring the evidence.

Should the death penalty be abolished or should it be applied equally to everyone? Is there credibility to the argument that courts and the justice system should just make sure that like crimes are punished in the same way? I am arguing that the death penalty should be abolished because it cannot be applied equally, but I try to be neutral on this front until the end of the paper as a rhetorical device. Could you clarify your second question? Are you saying that there is no value in ensuring equal protection to criminal defendants? But thanks for the edit! I need to shorten this paper. Would you recommend cutting anywhere?

Some people are of the opinion that if you simply start sentencing more white people to death for crimes that black people would be sentenced to death for, then the numbers would even out. But, I guess you are arguing that the fact that someone's race strongly influences the prosecution and the jury isn't even being allowed as an element that needs to be mitigated in the penalty phase, thus there is little to no way to make application of the death penalty more equitable.

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I'm glad you chose this topic, I was considering writing on this exact issue for my paper. This focus on looking only at individual-based claims seems to be a common theme with the courts, and seems to be in the same vein as the desegregation cases we discussed in con law. The Supreme Court allowed evidence of de facto segregation and upheld an affirmative duty to desegregate in cases like Green v. New Kent and Keyes, then subsequently in Milliken and later cases decided that disparate impact and de facto segregation were not necessarily indicative of discrimination and thus not redressable. Although it's true that individuals may choose to self-segregate and there may not always be discriminatory intent in housing developments, it's difficult to ignore the historical origin of many segregated and low-income neighborhoods and the reality of inconspicuous discrimination in neighborhood associations (e.g. the golf club neighborhoods Heller mentioned in Property). It seems to me the court is turning a blind eye by not allowing disparate impact and more contextual considerations come into play when dealing in areas that have a demonstrated discriminatory history, such as housing and the death penalty.

-- NovikaIshar - 18 Apr 2010

I completely agree with you that there has been a big pattern of ignoring historical and circumstantial evidence of racial discrimination in our jurisprudence. Memphis v. Green, 451 U.S. 100 (1981) is another example, wherein the city of Memphis closed a major thoroughfare to the public, ostensibly to keep one part of the town white and to prevent African Americans easy access to public recreation facilities on the "white" side of town. Closing the busy street was a substantive departure from what the city council had done before and there was a good deal of circumstantial evidence of racism (restrictive racial covenants, police abuse, homeowner’s firsthand accounts, etc). Yet, the Supreme Court rejected the claim that the street closure violated the 14th Amendment because there was no evidence of purposeful discrimination. The city council was on record to be only concerned with getting rid of “undesirable traffic.”

Like you say, people can sometimes legally choose to self-segregate. Although I don’t necessarily agree with him, I understand Justice Thomas’s argument on the value of segregation as sanctuary, particularly with historically-black colleges. BUT in the context of the death penalty, where self-segregation is not an issue, I think it’s pretty clear that racial animus is afoot. Historical evidence is there (Matt touched upon it in this post), and the current statistical studies are pretty solid, particularly the Baldus one in this paper (he controls for a number of quantitative and qualitative aspects of the individual crimes to isolate race as a determinative factor). I've heard this book explores these issues in greater detail. Haven’t had a chance to read it yet, but hope to this summer.

-- EricaSelig - 19 Apr 2010