Studies

Researcher—Capital Sentencing Evidence Shows Death Penalty Race Bias is Real

For decades, studies have shown persistent racial disparities in the administration of capital punishment. Saying “death sentences are unevenly and unfairly applied based on race,” California Governor Gavin Newsom on March 13, 2019 imposed a moratorium on executions in the state with the nation’s largest death row. Responding to the governor’s moratorium In an op-ed for the Los Angeles Times, Stanford psychology professor Jennifer Eberhardt—one of the leading researchers on social science and race—says race discrimination in the death penalty “is real” and that the research supports the governor’s claim. “In a state that is only 6% black, more than one-third of defendants sentenced to death in California are black,” Eberhardt said. California, like other death-penalty states, also shows evidence of bias in favor of white victims. Defendants who kill white victims are much more likely to be sentenced to death than those who kill black victims.

“But the truth is more complicated, and more insidious, than a simple black/white divide,” Eberhardt explains. Her groundbreaking 2006 study of two decades of death sentences in Philadelphia found bias operating at the subconscious level based upon an African American’s physical appearance. “When black men are judged by juries in capital cases, their sentences can hinge on just how black they are perceived to be,” Eberhardt writes. “Those with darker skin, wider noses and thicker lips are subject to far harsher sentencing than lighter-skinned blacks with less prominent, so-called black features.” In the study period between 1979 and 1999, black defendants with stereotypically African features were much more likely to be sentenced to death than black defendants with less stereotypical features (see image), but only if the victim was white. In the study of Philadelphia capital convictions, “Of the men rated low in stereotypical features, only 24% had been sentenced to death. But more than 57% of the “highly stereotypical” black defendants were sentenced to die for their crimes.” “Those strong distinctions signal that our perspectives, our criminal justice process and our institutions are influenced by primitive racial narratives that link people of African descent to darkness and evil,” she says.

Eberhardt’s op-ed describes how racial bias has become ingrained in the criminal justice system. “Research has shown that highlighting racial differences in the justice system actually leads members of the broader public to be more supportive of punitive policies, including the death penalty. When the implicit narrative of black ‘wickedness’ is not challenged, it can seem to perfectly explain the disparities in outcomes,” she says. In addition, unlike any other equal protection challenge under the U.S. Constitution, the U.S. Supreme Court’s 1987 decision in McCleskey v. Kemp barred defendants from using statistical evidence as circumstantial evidence of racial bias, instead requiring proof of “particularized discrimination” — that is, direct evidence of intentional discrimination in their case. “The ruling came under heavy criticism from legal scholars and civil rights activists, concerned that it made institutional racial bias constitutional, and simply part of the status quo,” Eberhardt writes, and was the one ruling Justice Lewis Powell, the author of the 5-4 decision, said he regretted in his time on the Court.

Study Reports More Than Three-Fold Drop in Pursuit of Death Penalty by Pennsylvania Prosecutors

A new study of fourteen years of Pennsylvania murder convictions has documented a sharp decline in county prosecutors’ use of capital punishment across the Commonwealth. After examining the court files of 4,184 murder convictions from 2004 to 2017, the Allentown Morning Call found that Pennsylvania prosecutors sought the death penalty at more than triple the rate (3.3) at the start of the study period than they did fourteen years later — a drop of more than 70%. In 2004, the paper reported, prosecutors sought the death penalty in 123 of 309 (39.8%) murder cases that ultimately resulted in a conviction. In 2017, they sought it in 33 of 271 cases (12.2%). While there were some year-to-year fluctuations in death-penalty usage over the 14-year period, the pattern showed a clear long-term downward trend. Though most (59) of Pennsylvania’s 67 counties had at least one capital prosecution, the change was largely driven by the steep decline in the pursuit of the death penalty in Philadelphia. The city, which had 88 prisoners on its death row in January 2013 — the third highest of any city or county in the country — dropped from seeking death in more than half of all murder convictions (69 out of 134) in 2004 to 15% of the cases (16 out of 106) in 2017. The Morning Call reported that of the more than 1,100 case files of capital prosecutions it reviewed, 56 resulted in death sentences during the study period. The rest ended in plea bargains or sentences other than death.

The decline in capital prosecutions accompanies a twenty-year hiatus in executions in Pennsylvania during which the state and federal courts have overturned nearly 200 Pennsylvania capital convictions or death sentences, and a drop in public support for the death penalty. A 2015 poll by Public Policy Polling reported that 54% of Pennsylvania respondents said they preferred some form of life sentence as the punishment for murder, as compared to 42% who said they preferred the death penalty. Death sentences have also plummeted by nearly 90%. According to statistics from the Pennsylvania Department of Corrections, the state imposed an average of 15.8 death sentences per year in the five-year period from 1989-1993. But by 2004-2008, the average had fallen to 5.2 death sentences per year, and it dropped to only 1.8 death sentences per year from 2014-2018.

Prosecutors “are scrutinizing these decisions much more than ever before,” said Berks County District Attorney John T. Adams, former president of the Pennsylvania District Attorneys Association. “All of us are very cognizant of the fact that there’s a lot that we as prosecutors are asked to do as far as seeking the death penalty.” Marc Bookman, co-director of the Atlantic Center for Capital Representation, which advises lawyers who are handling death-penalty trials, said, “Mostly it is just a recognition that it is a failed public policy. We’re seeing it more and more coming from elected officials, saying it is a failed public policy.” Governor Tom Wolf imposed a moratorium on executions in 2015, and said he intends to extend that moratorium until the legislature addresses problems identified by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. “He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” the governor’s spokesperson said in a statement.

Study: International Data Shows Declining Murder Rates After Abolition of Death Penalty

Nations that abolish the death penalty then tend to see their murder rates decline, according to a December 2018 report by the Abdorrahman Boroumand Center, a Washington, DC-based organization that promotes human rights and democracy in Iran. The report examined murder rates in 11 countries that have abolished capital punishment, finding that ten of those countries experienced a decline in murder rates in the decade following abolition. Countries were included if they met the following criteria: they had formally abolished the death penalty at least ten years ago, at least one death sentence had been imposed or carried out in the decade prior to abolition, and murder rate data was available from the World Trade Organization. The countries that met the study’s criteria were Azerbaijan, Bulgaria, Poland, Serbia, Estonia, Latvia, Ukraine, South Africa, Kyrgyzstan, Georgia, and Albania. (Click image to enlarge.)

The researchers compared murder rates in the ten years after abolition of the death penalty to the baseline rate in the year of abolition. Six of the abolitionist countries experienced murder rates below the baseline all ten years following abolition. Four countries had either one or two years in which murder rates were higher than in the year of abolition, but saw murders fall below the baseline within five years and experienced overall downward trends. Only one country in the study, Georgia, saw murder rates trend upwards in the decade following abolition. One decade after abolition, the murder rates in these countries declined by an average of six murders per 100,000 population. The authors conclude, “Death penalty advocates’ fears that the state relinquishing the ultimate punishment will embolden potential criminals, or at least weaken deterrence, prove to be unfounded in light of this evidence.”

The data is consistent with state-level data in the United States, which has repeatedly shown lower murder rates in states that do not have the death penalty than in states that do and that the presence or absence of the death penalty does not appear to affect murder trends. A 2017 DPIC analysis found that abolishing the death penalty had no measurable effect on murder rates in general or the rate at which police officers are killed, contradicting popular arguments that the death penalty is necessary for public safety and to protect law enforcement officials.

DPIC Analysis: The Decline of the Death Penalty in Philadelphia

During his election campaign, Philadelphia District Attorney Larry Krasner described the economic wastefulness of city prosecutors' pursuit of the death penalty as "lighting money on fire." A DPIC analysis of the outcomes of the more than 200 death sentences imposed in the city since 1978 (click image to enlarge) and the last seven years of capital prosecution outcomes provides strong support for Krasner's claim. Data tracking the final dispositions of cases in which Pennsylvania prosecutors had provided notice of intent to seek the death penalty showed that between 2011 and 2017, 98.7% of the 225 cases in which Philadelphia prosecutors had sought the death penalty ended with a non-capital outcome. Similarly, 99.5% of the 201 death sentences imposed in the city—mostly in the 1980s and 1990s—have not resulted in an execution. Two thirds of the convictions or death sentences have already been reversed in the courts and 115 of the former death-row prisoners have since been resentenced either to life sentences (101) or a term of years (11) or been exonerated (3). The single execution was of a severely mentally ill man whom courts initially found incompetent to waive his rights, but was later permitted to be executed.

DPIC Executive Director Robert Dunham announced the results of the DPIC analysis at the National Constitution Center in Philadelphia at a news conference conducted by the death-row exonerees' organization Witness to Innocence. Dunham said that the data showed Philadelphia's pursuit of the death penalty has been "a colossally inefficient" waste of judicial resources and "a colossal waste of money." 

Death sentences imposed in Philadelphia peaked in the first term of District Attorney Ronald Castille's administration in 1986-1989, when an average of 11.25 death sentences per year were imposed. 99 more death sentences were imposed in the decade of the 1990s. By 2001, 135 prisoners were on Philadelphia's death row, and the 113 African Americans on its death row were more than in any other county in the United States. Since then, death sentencing rates have plummetted, falling to 1.5 per year in 2006-2009, the final term of District Attorney Lynn Abraham's administration, and to fewer than one a year this decade, during the administration of Seth Williams. But even as the number of death sentences fell, the proportion of defendants of color sentenced to death in Philadelphia increased. In the past two decades, 82.6% of the defendants sentenced to death in Philadelphia have been African American. Of the 46 defendants sentenced to death in Philadelphia since 1997, 44 (95.7%) have been defendants of color. 

Krasner's campaign pledge not to use the death penalty, Dunham said, was a "natural conclusion" of the steep decline in death penalty usage in the city.

Study: Racial Disparities in Death Penalty Begin with Investigations and Arrests

A study of more than three decades of homicide arrests suggests that racial disparities in arrests and policing practices introduce an additional layer of bias in the application of the death penalty in the United States. While earlier research has documented that the race of victims affects prosecutors' decisions to seek the death penalty, and juries' and judges' decisions to impose death sentences, a new study by Professors Jeffrey Fagan of Columbia University (pictured, left) and Amanda Geller of New York University (pictured, right) has found that those disparities appear even earlier in the process, at the arrest stage. "[H]omicides with white victims are significantly more likely to be 'cleared' by the arrest of a suspect than are homicides with minority victims," the authors write. Since death-penalty prosecutions must begin with an arrest in a capital-eligible murder, these clearance rates create a disproportionately larger pipeline of white-victim cases. Fagan and Geller examined every homicide recorded in the FBI's Supplementary Homicide Reports from 1976 to 2009, uncovering county-level patterns in the "clearance rate" (the rate at which cases are closed by the arrest of a suspect). Counties with higher proportions of minority residents had lower clearance rates than counties with whiter populations, but the authors say that county characteristics alone do not completely account for the disparities. Rather, they say that broader policing practices also play a role. "Inequalities in policing, such as the underpolicing of the most serious crimes in the most disadvantaged communities, coupled with overpolicing of the least serious offenses in those same places, seem to extend to the initial stages of the production of death sentences and executions," they write. They attribute the lower clearance rates of black-victim cases in part to distrust of police in communities of color, resulting in less willingness to cooperate in investigations. "Perceived injustices can disincentivize citizens from cooperating with the police," they explain, "including both 'petty indignities' and egregious acts of police violence." Thus, discriminatory policing practices contribute to disparate clearance rates, which in turn contribute to the discriminatory application of capital punishment.

DEATH-ROW CENSUS: Number of Prisoners Facing Active Death Sentences in U.S. Drops Below 2,500

For the first time in more than a quarter century, fewer than 2,500 prisoners across the United States now face active death sentences. According to the latest Death Row USA national census by the NAACP Legal Defense Fund (LDF), released in early September 2018, 2,743 people were on death rows in 32 states and the U.S. federal and military death rows on April 1, 2018. That total includes 249 people who were previously sentenced to death but face the possibility of a capital resentencing after a new trial or new sentencing hearing and prisoners whose capital convictions or death sentences have been reversed, but whose reversals are still subject to appeal by the state. 2,494 other prisoners face active death sentences. The Spring 2018 death-row census reflects that death row has declined by 100 from the 2,843 reported on death row as of April 1, 2017, and by 17% over the course of the last decade. The overall decline in the number of people on death rows across the country is greater than the number of executions in that period, meaning that more former death-row prisoners have been resentenced to life or less after overturning their death sentences, died from non-execution causes, or been exonerated than have been added to the row with new death sentences. California (740), Florida (354), and Texas (235) remain the nation’s largest death rows. Of the jurisdictions with at least 10 people on death row, those with the highest percentage of racial minorities are Texas, Louisiana, and Nebraska, each at 73%. The last time LDF recorded fewer than 2,500 prisoners facing active death sentences in the United States was in January 1993, when the Winter 1992 Death Row USA reported that 2,483 of the 2,676 men and women then on death row had active death sentences. 

New DPIC Podcast: Researcher Discusses Implications of Link Between Economic Threats and Support for Death Penalty

In the latest episode of our Discussions with DPIC  podcast, Keelah Williams (pictured), assistant professor of psychology at Hamilton College in New York, joins DPIC executive director Robert Dunham to discuss the implications of new research on the death penalty and resource scarcity. “Resource scarcity” is a concept from evolutionary psychology that examines individual and social responses to environmental conditions in which resources are limited. “[E]cological variables can affect our behavior in really striking ways, and this often is happening at an unconscious level," Williams said. She and an interdisciplinary team of researchers from Arizona State University (where Williams earned her Ph.D. and J.D.) thought the concept provided “an exciting opportunity to see whether environmental factors might also play a role in how people think and feel about the death penalty.” Williams describes the team’s findings that countries with greater resource scarcity and income inequality are more likely to have a death penalty. The team discovered a similar phenomenon in the U.S., finding that “states with lower life expectancy and lower per capita income were more likely to have the death penalty, and ... this relationship wasn’t explained by other variables like how politically conservative the states were or state murder rates.” Williams also discusses two experimental studies the team conducted to assess the extent to which perceptions of economic scarcity or abundance affect individuals’ views of capital punishment. That research found that study participants who had been shown information and images of economic hardship tended to be more supportive of the death penalty than those of the same political ideology and socioeconomic status who had been given information and images about economic prosperity. She explains the results, saying, “If your resources are limited, then you have to be more choosy in how you invest them. So, in the context of punishment decisions, we think this means you become less willing to risk repeated offending, and more favorable towards punishments that eliminate the threat.” Although the team‘s research focused on resource scarcity, Williams says it also has relevance in explaining how race may affect views of capital punishment. “We think that people are trying to figure out what the potential future value is of the offender because that’s the information that helps them to evaluate the costs and benefits of getting rid of someone versus keeping them around.” Race, and “whether someone is in your ‘in-group’ or your ‘out-group,’” she says, “can play a role in these kinds of calculations.” This, she believes, may lead to harsher punishment of individuals perceived as belonging to the out-group and discretionary acts of leniency that favor individuals who are members of the in-group, and may cause individuals to feel more threatened when a member of their favored group is killed. Williams says that perhaps “the most interesting take-away from our study is that these features of our environment really can influence the way that we feel and the way that we behave, and can do so in ways we are not necessarily consciously aware are happening.” This raises problematic constitutional and policy questions about the arbitrariness of the death penalty’s application across the United States. “If these extraneous factors, like the state of the economy, are influencing people’s attitudes about something as important as how they feel about the death penalty and their willingness to impose death over life,” Williams says, “[t]hat’s something we, as a society, need to consider if we’re comfortable with.”

Amnesty International Issues Report on the Death Penalty in Florida

A new report by Amnesty International says Florida's approach to redressing the nearly 400 unconstitutional non-unanimous death sentences imposed in the state has deepened its status as an outlier on death-penalty issues by "add[ing] an extra layer of arbitrariness to [the state's] already discriminatory and error-prone capital justice system." The report, released on August 23, 2018, examines the impact of Florida's reponse to U.S. and Florida Supreme Court rulings in Hurst v. Florida and Hurst v. State that overturned the state’s capital sentencing statute. That response, Amnesty said, would permit the execution of more than 170 prisoners whom the state acknowledges were sentenced to death under unconstitutional sentencing procedures. Executing those prisoners, Amnesty wrote, will violate "well-established" international human rights law requiring that any person "convicted of a capital offence must benefit when a change of law following charge or conviction imposes a lighter penalty for that crime." In 2016, the Florida Supreme Court struck down a state practice that permitted judges to impose a death sentence despite the recommendations of one or more jurors that a life sentence should be imposed. However, the court then declined to enforce that ruling in cases that had completed direct appeal before the U.S. Supreme Court announced in Ring v. Arizona in June 2002 that capital defendants had a right to have a jury decide all facts that were necessary to impose the death penalty. The Amnesty International report described the Florida court's refusal to enforce the constitution in cases in which it acknowledged that constitutional violations had occurred as "fear of too much justice." "Finality won out over fairness when the Florida Supreme Court decided the Hurst retroactivity issue," the report said. The report highlights the cases of prisoners with serious mental illness, those with "actual or borderline intellectual disability," youthful offenders with backgrounds of severe deprivation and abuse who were condemned in unconstitutional sentencing trials, and the wrongful impact of race on sentencing decisions, and argues that Florida's refusal to review these cases is not only arbitrary, but also violates international human rights norms and the constitutional principle that the death penalty is supposed to be reserved for "the worst of the worst" cases. The report also discusses Florida's long history of employing unconstitutional death-penalty practices that were later overturned by the United States Supreme Court. It spotlights the case of James Hitchcock, who was unconstitutionally sentenced to death four times for a crime he committed at age 20. The first three times, his death sentence was overturned, including a landmark U.S. Supreme Court ruling striking down Florida's statutory restriction on the mitigating evidence the sentencing judge and jury could consider. The fourth time, he was sentenced to death after a non-unanimous jury vote, but was denied review of that constitutional violation. "The death penalty is no way to impart justice," said Amnesty's Americas Director, Erika Guevara Rosas. "Florida and all other states where the death penalty is still in use must impose immediate moratoriums on executions until they can end this cruel practice once and for all." In the meantime, the report urges all officials to “ensure an end to the use of the death penalty against anyone with intellectual disability or mental disability,” “ensure that all capital case decision makers are made fully aware of the mitigating evidence surrounding youth and emotional and psychological immaturity,” and “facilitate a public education campaign to raise awareness across Florida of the costs, risks and flaws associated with the state’s death penalty.”

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