Defendants convicted of killing white victims in Georgia are 17 times more likely to be executed than those convicted of murdering black victims, a new study by researchers at the University of Denver has found, and the problem of discrimination is worsened by the appeal process.
The study by Sociology and Criminology Professor Scott Phillips (pictured, left) and Law Professor Justin Marceau (pictured, below), to be published in an upcoming issue of the Harvard Civil Rights-Civil Liberties Law Review, found that “2.26% (22/972) of the [Georgia] defendants who killed a white victim were ultimately executed, compared to just .13% (2/1503) of the defendants who killed a black victim. Thus, the overall execution rate is a staggering 17 times greater (2.26/.13) for defendants who killed a white victim.” The issue, they say, “is not so much that [America’s] death penalty has a race problem as it is that the race problems of America manifest themselves through the implementation of the death penalty.” Racial disparity, they say, “is a recurring and defining feature of each stage of our capital punishment system.”
The new study builds on data collected by Professor David Baldus in his landmark 1980s analysis of racial disparities in death sentencing in Georgia. In that study, Baldus found that the odds that a defendant would be sentenced to death for murder in Georgia were 4.3 times greater if at least one victim was white than if all victims were black. Phillips and Marceau set out to determine whether those disparities continued through to the ultimate resolution of the cases. Reviewing execution data over the more than three decades since Baldus conducted his study, they found that Baldus had “actually understated the race problems inherent to the operation of modern death penalty jurisprudence” and that the appellate review process “exacerbate[ed] rather than remediat[ed] the problems of arbitrariness.”
Phillips and Marceau also say that their new study demonstrates that “the race-based arbitrariness of the death penalty is far worse than previously understood” and is “magnified by the appellate and clemency processes.” This, they believe, fundamentally undermines the Supreme Court’s assumption when it upheld the constitutionality of the death penalty in Gregg v. Georgia in 1976 that appellate courts would “serve as an antidote to the arbitrariness” that led the Supreme Court to strike down existing death-penalty statutes in Furman v. Georgia in 1972. The new data, they argue, “show that this trust in appellate review as a check on discrimination is badly misplaced. Appellate judges appear unable or unwilling to reign in the racial disparities identified at the sentencing phase.”
Their study, Phillips and Marceau suggest, shows that executions under existing death-penalty schemes remain just as random as they were when Justice Potter Stewart wrote in Furman that the death penalty was unconstitutionally “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Of the nearly 2,500 murder cases studied by Baldus, fewer than 1% resulted in executions. “Our research,” the authors write, “shows that both rarity and race are operating in tandem such that the death penalty is racially disparate and simultaneously so rare as to be virtually random – a systematic lottery.” Paraphrasing Justice Harry Blackmun’s statement that appellate review could not cure the defects in capital punishment and he would “no longer tinker with the machinery of death,” the researchers conclude that “we should no longer ‘continue to coddle the Court’s delusion that the desired level of fairness has been achieved,’ [because] the steady stream of data confirms that ‘the death penalty experiment has failed.’”
Scott Phillips and Justin F. Marceau, Whom the State Kills, August 22, 2019, in Harvard Civil Rights – Civil Liberties Law Review, Volume 55.2 (forthcoming).
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