Vol. 5 No. 3 (March, 1995) pp.107-110

SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor

THE DEATH PENALTY AND RACIAL BIAS: OVERTURNING SUPREME COURT ASSUMPTIONS by Gregory D. Russell. Westport: Greenwood Press, 1994. 170pp. Cloth Reviewed by Leigh Buchanan Bienen, Northwestern University School of Law

The 1994 federal crime bill expands eligibility for federal capital prosecution to more than fifty new offenses, New York State is about to reinstate executions after a moratorium of almost thirty years, and even Iowa is considering enactment. The death penalty, and all of the political controversy surrounding its present and past imposition, will be with us for the rest of this century. The topic of this book is central as well as timely. Race, its relation to economic and social disparities, the discretionary roles of prosecutors, judges and juries have been and will continue to be at the heart of this debate.

In 1987, MCCLESKEY V. KEMP closed the door on the constitutional grounds for most race based, empirical challenges to the reimposition of capital punishment when the United States Supreme Court declared irrelevant statistical evidence of racial disproportionality in the application of the Georgia capital statute, evidence that many, including four members of the court itself, considered convincing proof of systemic differential impact based upon race of the victim:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. In addition, frankness would compel disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story would be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent part in determining if he lived or died. (Dissenting opinion of Brennan, J. (481 U.S. 279,321).

No one will any longer be explaining these matters to Warren McCleskey, who was executed in 1991 after the United States Supreme Court imposed stringent new restrictions limiting federal post conviction review in capital cases in a second landmark opinion in his case. Had the court ruled differently in 1987 an analogous argument could have been brought on behalf of the over one thousand blacks on death row, and it might have been brought with exceptional force on behalf of those executed for killing white victims.

Page 108 follows: Any study seeking to bring new information, a fresh analysis, or a more rigorous reanalysis of existing data relevant to the relationship between race and the death penalty is not merely welcome, it is necessary for belief in the continued integrity of our legal system. Professor Baldus and his colleagues have themselves recently added a new dimension to these debates by comparing data developed in New Jersey with the results of their original Georgia study. (Baldus et al. 1994) If it is true that capital sentencing is pervaded by racial influences, and our highest court, the court of last resort for the protection of individual rights, refuses to recognize this or act upon it, the implications are more than serious.

Professor Russell's defines his task as attempting to test for a possible link between demonstrated racially disparate outcomes in capital cases and actual racial prejudice on the part of a crucial judicial decision maker, the jury. Linking data from a 1986 Georgia public opinion survey conducted in 1986 and 1980 census data, he constructs a model which attempts to explain support for capital punishment with attitudinal measures related to racism.

Georgia executed more people than any other state prior to abolition (366), followed by New York, Texas, and California. Landmark United States Supreme Court cases involving the constitutionality of capital punishment, COKER V. GEORGIA, FURMAN V. GEORGIA, GREGG V. GEORGIA and MCCLESKEY V. KEMP, all arose as challenges to the Georgia system. The Georgia statute upheld in GREGG became the model for the majority of reenacting jurisdictions. Georgia's unique role in the history of capital punishment, and the fact that the constitutional principles with regard to jury decision making were articulated in the context of the Georgia statute, makes any work done with Georgia data especially relevant.

A majority of the United States Supreme Court has taken the position that at present there is no reliable evidence demonstrating the direct influence of racial bias upon death penalty sentencing. And the current system for selecting jurors is purportedly designed to remove bias. A series of independent studies have demonstrated a relationship between the method for selecting capital jurors, death qualification, and other apparently race neutral attitudinal characteristics, such as being conviction prone. Should a connection be demonstrated between such characteristics and attitudes reflecting racial bias in the population of potential jurors, such a finding would be noteworthy.

Professor Russell begins by summarizing the jurisprudence of capital cases setting out the constitutional principles, which he terms assumptions, established by the United States Supreme Court in its analysis of capital case processing systems. He then summarizes the relevant social science research. Professor Russell's experience as a prosecutor and defense attorney, and his training in social science allow him to bridge both literatures.

This economical and comprehensive summary of capital jurisprudence, and the social science research demonstrating the association between race and the application of capital statutes, will be useful to students and researchers in criminology, political science, sociology and law. Concluding that "no study to date has demonstrated a link between these racially disparate outcomes and

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actual racial prejudice.... a theoretically viable, but indirect, test" for such a relationship is put forward here.(p.9,10) The study then finds "a certain tentative" relationship between racially prejudicial attitudes and support for the death penalty, and therefore arguably between racial attitudes and the conviction prone jury which emerges after death qualification. (Ch. 6,7).

How reliable is this analysis and what is new here? The author begins by interlocking two independent sets of Georgia data. The first is a statewide opinion survey of slightly more than 900 respondents in 1986. These data have been collected and analyzed using traditionally respected and reliable methods.(p. 95) The second data set is standard city and county demographic data from the 1980 census. Here it would have been preferable to use the 1990 data.

A dependent variable is constructed to represent death penalty support, by recoding and then rescaling data from the opinion survey. The purpose is to create a reliable continuous variable to amplify the existing research which addresses only the two extremes of this characteristic, namely those who would "automatically" impose the death penalty in every death eligible case (ADPs, in legalese) and those who would never vote to impose the death penalty, no matter what the circumstances (the so called nullifiers or WITHERSPOON excludables).

This is a sensible approach to a possibly powerful analytic exercise. The empirical research in the legal literature typically treats one or both of these extremes, and the court has indicated it is interested in the middle ground. The addition of such a scaled variable to our existing tools would carry the potential of linking previously unrelated research and perhaps coming forward with newly convincing evidence demonstrating the hypothesized relationship between the attitudes of jurors and firmly institutionalized procedures for death qualification. If it could be shown that death qualification heightened or made more likely the selection of racially biased capital juries, that would be significant.

Granted that the enterprise is worth pursuing, especially at this point in capital jurisprudence, and that Professor Russell has the range of skills needed to conduct such an exercise, what are the problems with this research and its reported results? Some objections of my objections are minor, some are not.

Professor Russell operationalizes a variable based upon the percentage of blacks in a county on the following theory. "The larger the black population density in the county, the larger the relative probability of a white resident having regular interracial contact. Whites tend to be more supportive of the death penalty. While there have been mixed findings, substantial research has shown that close interaction with blacks may reduce bias..." (p.97) The variable per cent black population (and it would perhaps have been preferable to look at percentage change in percent black population over a decade) might well be associated with relevant attitudinal data. I would not hypothesize, however, that the relationship would be as is proposed here. The variable might measure "white flight" and hence an increase in racial bias among whites, or it might represent a polarization of racial feelings among both blacks and whites. The nature of the county may be relevant. Is the county a bedroom community, an urban area, or a rural community? The variable might have

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differing directions and explanatory power in counties with different characters.

Metropolitan Atlanta, for example, is composed of 15 counties. The demographic patterns in those counties must be interrelated and the variable per cent black must not be everywhere indicative of the same phenomenon. Consider Los Angeles. The percentage of blacks, whites, and hispanics across counties in the larger Los Angeles metropolitan area probably points in different directions in various trial court jurisdictions, or why would a venue change be important. My quarrel is with the construction and interpretation of that indicator, not with its identification as a variable of interest.

Similarly, Professor Russell constructs a variable termed "extreme response bias," (p. 99) but there is insufficient information about the manner in which this variable was constructed for the reader to judge its validity. There are other quibbles: For example, are the statistics reported in column 1 of Table 7.1 the p-values associated with the Pearson Chi-Square Mantel-Haenszel test, rather than the test itself? And why aren't the frequencies or measures of distribution reported for both sets of data, even if only in an Appendix. My methodological reservations about this study make me skeptical of the author's relatively modest claims regarding his findings. Professor Russell's policy recommendations also seem to be very much of an afterthought. The enterprise, however, is worthwhile and hopefully Professor Russell will continue his empirical investigations in this area. There are too few people who understand the law and also have his methodological expertise. The book is worth examining in the classroom, and the saliency of its topic will ensure that it receives the serious attention it deserves.

References:

Baldus, David, G. Woodworth, and C. Pulaski, "Reflections on the 'Inevitability' of Racial Discrimination in Capital Sentencing and the 'Impossibility' of its Prevention, Detection, and Correction," 51 WASHINGTON AND LEE LAW REVIEW 359 (1994).

COKER V. GEORGIA, 433 U.S. 584 (1977)

FURMAN V. GEORGIA, 408 U.S. 238 (1972)

GREGG V. GEORGIA , 428 U.S. 153 (1976)

MCCLESKEY V. KEMP, 481 U.S. 279 (1987)

STATE V. MARSHALL, 613 A. 2 1059 (N.J. 1992)