The Futile Quest for Racial Neutrality in Capital Selection and the Eight Amendment Argument for Abolition Based on Unconscious Racial Discrimination

By Howe, Scott W. | William and Mary Law Review, April 2004 | Go to article overview

The Futile Quest for Racial Neutrality in Capital Selection and the Eight Amendment Argument for Abolition Based on Unconscious Racial Discrimination


Howe, Scott W., William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION
  I. CHARACTERISTICS OF POST-FURMAN CAPITAL SELECTION
     THAT PROMOTE THE INFLUENCE OF RACIAL BIAS
     A. Broad Applicability of Death Penalty
     B. Decentralized Decision Makers
     C. Prosecutorial Discretion
     D. Sentencer Discretion
 II. STATISTICAL EVIDENCE OF RACIAL DISCRIMINATION
     IN CAPITAL SELECTION
     A. The Baldus Study in Georgia
     B. Other Studies
     C. A Summary View
III. ALTERNATIVE REGULATORY APPROACHES AND THE FATED
     FAILURE OF SUPREME COURT EFFORTS TO SECURE
     RACIAL NEUTRALITY IN CAPITAL SELECTION
     A. "Super Due Process" Regulation
     B. Mandatory Death Sentencing
     C. Forced Narrowing
     D. Mandated Near-Zero Disparity Outcomes
IV. THE EIGHTH AMENDMENT ARGUMENT FOR ABOLITION
    BASED ON UNCONSCIOUS RACIAL DISCRIMINATION
    A. The Deserts Limitation on the Use of
       the Death Penalty
    B. Racial Discrimination as a Violation of
       the Deserts Limitation
    C. Justification for the Abolition Remedy
CONCLUSION

INTRODUCTION

The modern effort to regulate capital sentencing grew largely out of concerns about racial discrimination. (1) Since 1963, when three Justices dissented from the denial of certiorari in Rudolph v. Alabama, (2) through Furman v. Georgia (3) and beyond, the specter of racial prejudice animated the agenda for reform. (4) Efforts within the Supreme Court to promote racial neutrality in death sentencing coincided with larger efforts in the wake of the Brown v. Board of Education decision (5) to stem racial discrimination throughout public institutions. (6)

The quest in the capital sentencing context has failed, (7) although the primary concern has changed from race-of-defendant to race-of-victim discrimination. (8) Numerous studies conducted in many states indicate that a defendant is much less likely to receive a death sentence for the capital murder of a black victim than for the same murder of a white victim. (9) While the results vary with the study and the state, they reveal a widespread problem. The Supreme Court's post-Furman decisions on capital sentencing have done little to control the influence of unconscious racial biases. (10) Nonetheless, the Court largely abandoned further efforts toward a solution with its opinion in McCleskey v. Kemp, (11) in which it rejected claims based on a study that revealed a high risk that racial prejudice influenced capital selection in Georgia. (12)

The failure to pursue serious remedial actions (13) in the death-penalty arena has no easy explanation. (14) The federal government has made substantial efforts to limit racial discrimination in many areas, such as voting, housing, employment, and public education. (15) Some commentators have argued that the weak effort to remedy the racial disparities in the capital sentencing context is aberrational in light of these advances. (16) Although the Supreme Court has not been alone in failing to act, (17) a few commentators have even said that history will rank McCleskey with Dred Scott (18) as among the worst majority opinions in Supreme Court history. (19) Of course, some deny that the study supporting the challenge in McCleskey sufficiently established the influence of racial prejudice, (20) just as they deny that any statistical study can adequately prove racial discrimination in a context as complicated as capital selection. (21) Critics of the disparities commonly contend, however, that these views build on unrealistic demands for certainty. (22) Indeed, the accumulated research now strongly implies that unconscious racial bias influences capital selection on a widespread basis, a conclusion sufficient to raise questions about the lack of more serious remedial action. (23)

This Article asks what the Supreme Court might have done differently to achieve racial neutrality in capital selection, but concludes that the goal is unattainable as a practical matter, except through abolition. …

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