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September 14, 2012

"Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study"

The title of this post is the title of this notable new paper on SSRN authored by Steven Shatz and Terry Dalton. Here is the abstract:

In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others.  Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results.  In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment.  In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges.  The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.

In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing.  The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county.  During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans.

The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County.  We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.

September 14, 2012 at 09:51 AM | Permalink


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The court had no problem with statistical evidence in Norris v. Alabama* (a Scottsboro case - blacks consistently excluded from grand juries)

* http://law2.umkc.edu/faculty/projects/ftrials/scottsboro/SB_norus.html

294 U.S. 587; 55 S. Ct. 579
1935 February 15, 18, Argued
1935 April 1, Decided


Posted by: Anon. #3.14159 | Sep 14, 2012 10:12:22 AM

how funny! hangmen-friends know nothing about statistics

Posted by: Claudio GiustiI | Sep 15, 2012 9:00:09 AM

Claudio --

They know more than murderer-friends.

Posted by: Bill Otis | Sep 15, 2012 11:58:39 AM

I am sorry for little Otis, but we never ask for a murderer freedom. We ask for equality and you cannot do equality with a clear violation of HR.
let me know: how many books about CP do you know?????????

Posted by: Claudio GiustiI | Sep 15, 2012 1:22:29 PM

Claudio's incomprehensibility proceeds apace. What's he on about? Something about home runs? Didn't know he was a baseball fan.

Posted by: alpino | Sep 16, 2012 7:05:12 PM

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