RACE: Research Experts Say Racial Bias Still Exists in Death Penalty
Renowned researchers David Baldus, Professor of Law at the University of Iowa, and George Woodworth, a fellow of the American Statistical Association, recently wrote about the ongoing problem of racial disparities in capital cases. Professors Baldus and Woodworth were responsible for the acclaimed study on race and the death penalty in Georgia that was brought before the U.S. Supreme Court in 1987 in McCleskey v. Kemp. In response to claims that North Carolina does not need to pass the Racial Justice Act, the researchers pointed to "several studies, including one done at UNC-Chapel Hill several years ago, that found that a defendant's odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white." They wrote further: "Our published review of all studies completed up to 2003 reaches the same conclusion. No one who has read the research literature could claim that white-victim cases more frequently result in death sentences because they are more heinous and aggravated than black-victim cases. Studies that provide the strongest evidence that those who murder whites are substantially more likely to receive death sentences than those who murder blacks use well-accepted statistical tools to filter out the effects of these various non-racial factors." Their entire op-ed may be read below:
The Herald-Sun (Durham, NC)
Jul 29, 2009
The various attacks on the proposed North Carolina Racial Justice Act, a bill that would allow capital defendants to present claims of racial bias to the court, are, at best, based on a lack of understanding, and at worst, emotional and misleading arguments used in an effort to obscure the issues.
Some critics claim that the use of statistics to show racial bias in death penalty cases is inappropriate, but these critics offer no alternatives. Statistical analysis provides the only way to understand the role of racial bias in a system.
Rigorous statistical analyses, grounded in actual information about the crimes and the charging and sentencing decisions relating to them, facilitate a nuanced understanding of the real role of race. The only alternative is willful blindness.
Closing the door to this kind of analysis closes the door to an informed debate. It is for this reason that statistical analyses are used routinely and properly in housing and employment discrimination cases.
Some critics claim that there is no evidence of racial discrimination in the death penalty system. The enormity of this canard is breathtaking. Supreme Court Justice Antonin Scalia has said that racial discrimination in capital punishment is "real, acknowledged in the decisions" of the Supreme Court, and "ineradicable."
Confirming this viewpoint are several studies, including one done at UNC-Chapel Hill several years ago, that found that a defendant's odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white.
An exhaustive two-year study by the General Accounting Office published in 1990 concluded that discrimination based on the race-of-victim is widespread -- defendants whose victims are white have a substantially greater risk of receiving a death sentence than do killers of black and Hispanic victims.
Our published review of all studies completed up to 2003 reaches the same conclusion. No one who has read the research literature could claim that white-victim cases more frequently result in death sentences because they are more heinous and aggravated than black-victim cases.
Studies that provide the strongest evidence that those who murder whites are substantially more likely to receive death sentences than those who murder blacks use well-accepted statistical tools to filter out the effects of these various non-racial factors.
Some critics claim that the act would require counties to "equalize the percentage of killers of blacks and whites who are executed." The act prohibits intentional discrimination based on the race of the defendant or the victim. It permits defendants to prove the existence of such discrimination by demonstrating statistically the disparate treatment of similarly situated offenders.
The legislation does not require mathematical precision in death-sentencing rates or in the rates at which prosecutors seek death sentences.
Under the act, racial disparities would be perfectly lawful, no matter how large they may be, if they can be explained by differences in non-racial factors -- for example, the degree of violence or the number of victims that affect the relative heinousness of the various cases.
If white-victim cases are in fact more heinous than black-victim cases, higher death-sentencing rates in the white-victim cases would be lawful, if the disparity in death-sentencing rates could be explained by those non-racial factors.
The justice system is comprised of human beings. Human beings are imperfect. And unfortunately, some people are still guided by conscious or unconscious racial bias.
The least we can do is put in place mechanisms that allow us to speak intelligently about the role of racial bias in our death penalty system and, therefore, work toward the lofty goal of all of us being equal under the law.
David C. Baldus is the Joseph B. Tye distinguished professor of law at the University of Iowa College of Law where he has taught courses on criminal law, capital punishment and statistical methods for lawyers.
George Woodworth is professor of statistics and actuarial science and professor of biostatistics at the University of Iowa. He is an elected fellow of the American Statistical Association. Over the past 25 years, Baldus and Woodworth have conducted empirical studies of capital charging and sentencing in six states -- Arkansas, Colorado, Georgia, New Jersey, Maryland and Nebraska.