Condemning the Other:
Race, Mitigation and the "Empathic Divide"
It is tempting to pretend that minorities on death row share a fate
in no way connected to our own, that our treatment of them
sounds no echoes beyond the chambers in which they die. Such
an illusion is ultimately corrosive, for the reverberations of injustice
are not so easily confined.
—Justice William Brennan, McCleskey v. Kemp (1987)
At the start of this book I noted that the various social psychological influences and effects that facilitated the death-sentencing process were cumulative—that is, that together they represented a procedural whole that was larger and more powerful than the sum of its individual parts. In this chapter I want to examine some of the ways in which those forces come together to affect whether a capital defendant is condemned to death. Although the social psychological processes that I have discussed to this point apply to death penalty trials in general, here I want to discuss an important subset of capital cases—ones in which defendants are African American. These cases have special historical significance, as I note later, and they illustrate the way in which the capital trial process can be further compromised by the pernicious influence of race-based animus.
One mechanism of moral disengagement that I discussed at some length in chapter 7—the tendency to create, highlight, or exaggerate difference and transform it into defect and deficiency—helps to explain the chronic racism that has plagued the criminal justice system throughout our nation's history,1 including, of course, the legacy of discriminatory death sentencing.2 As Samuel Pillsbury observed: "In a society such as ours, where race is an obvious and deeply-rooted source of social differences, race presents the most serious otherness problem."3 I argue in this chapter that aspects of the deathsentencing process serve to preserve this sense of race-based otherness and amplify its effects on the capital jury's choice between life and death.