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14 - Capital Punishment

Choosing Life or Death (Implicitly)

Published online by Cambridge University Press:  05 June 2012

Justin D. Levinson
Affiliation:
University of Hawaii, School of Law
Robert J. Smith
Affiliation:
University of North Carolina, School of Law
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Summary

“Even under the most sophisticated of death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”

– Justice Harry Blackmun

A Fulton County, Georgia, jury sentenced Warren McCleskey, a black man, to death for the murder of a white police officer. McCleskey argued on appeal that his sentence should be reversed because race discrimination plagued the administration of the death penalty in Georgia. To make the claim, McCleskey presented a comprehensive statistical study that tracked more than 2,000 Georgia murder cases. The raw numbers established that defendants charged with killing white persons received the death penalty in 11% of cases, whereas defendants charged with killing black persons received the death penalty 1% of the time. The raw numbers also established that black defendants charged with killing white victims (as opposed to those who killed black victims) were twenty-two times more likely to be sentenced to death. Once adjusted to account for more than two-hundred case-related factors, the Baldus study demonstrated that a defendant charged with killing a white victim was 4.3 times more likely to receive a death sentence than a defendant charged with killing a black victim.

In 1987 in McCleskey v. Kemp, the U.S. Supreme Court rejected the challenge to Georgia's death penalty system despite the overwhelming statistical evidence suggesting that race (and especially race of the victim) played a significant role in whether a defendant received the death penalty. The Court accepted the race disparities for the sake of argument, but observed that the studies that McCleskey presented could not prove that race bias affected his particular case. In dissent, Justice Brennan labeled the Court's position that such claims “would open the door to widespread challenges to all aspects of criminal sentencing” as “a fear of too much justice.”

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Publisher: Cambridge University Press
Print publication year: 2012

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References

Radelet, Michael L.Pierce, Glenn L. 2011
Pierce, Glenn L.Radelet, Michael L 2011
Eberhardt, Jennifer L.Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes 17 2006
Glaser, Jack 2009
Bright, Stephen B.Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer 103 1994
Levinson, Justin D.Danielle, YoungDifferent Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence 112 2010
Lieberman, Matthew D.An fMRI Investigation of Race-Related Amygdala Activity in African-American and Caucasian-American Individuals 8 2005
Goff, Philip A.Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences 94 2008
Avenanti, AlessioRacial Bias Reduces Empathic Sensorimotor Resonance with Other Race Pain 20 2010
Kang, JerryLane, KristinSeeing Through Colorblindness: Implicit Bias and the Law 58 2010
Levinson, JustinRace, Death and the Complicitous Mind 58 2009
Blumenthal, Jeremy A.Affective Forecasting and Capital Sentencing: Reducing the Effect of Victim Impact Statements 46 2009
Eisenberg, TheodoreJohnson, Sheri LynnImplicit Racial Attitudes of Death Penalty Lawyers 53 2004
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