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September 2, 2009

"Race, Death and Disproportionality"

The title of this post is the title of this new piece I noticed on SSRN from Scott Howe.  Here is the abstract:

Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment.  In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment.  Yet, this kind of evidence has influenced many of the Justices’ views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment.  My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.'  Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.

My project proceeds in five parts.  Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation — a mandate that only a person who deserves the death penalty should receive that sanction.  Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it.  Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process.  Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur.  Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves.  Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced.  In fact, Part V contends that, despite the Court’s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court — and will continue to influence it — to confine the use of the death penalty.

September 2, 2009 at 03:28 PM | Permalink


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New Article on "Race, Death and Disproportionality": At Sentencing Law and Policy, Doug Berman posts this link to Scott Howe's SSRN article discussing "racial bias in capital selection." Howe, of Chapman University School of Law, argues that the Eighth... [Read More]

Tracked on Sep 2, 2009 6:38:14 PM


I thought only conscious racial bias violated the Constitution.

Posted by: federalist | Sep 2, 2009 3:32:37 PM

I thought intent was the requirement, not consciousness.

Posted by: dm | Sep 2, 2009 4:46:52 PM

I've enjoyed reading your blog - please check out a favorite blog of mine, Professor Birdsong, a professor of mine in Orlando, Florida at Barry University School of Law. http://birdsongslaw.com/

Posted by: John Knutton | Sep 2, 2009 9:31:25 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB