The Effect of Race on Sentencing Decisions in Washington

Anne Holsinger 0:01

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, the Managing Director of the Death Penalty Information Center. In this episode, I’ll be speaking with Katherine Beckett and Heather Evans, the authors of The Role of Race in Washington State Capitol Sentencing, 1981-2014, a study that played a vital role in the Washington Supreme Court’s decision to abolish the death penalty in October 2018. Dr. Beckett is a professor in the Law, Societies and Justice Program and the Department of Sociology at the University of Washington. Dr. Evans is a lecturer in Sociology, Disability Studies and Law, Societies, and Justice at the University of Washington. Dr. Beckett, Dr. Evans, thank you so much for joining us.

Katherine Beckett 0:41

Pleasure to be here.

Heather Evans 0:41

Thank you for having us.

Anne Holsinger 0:43

So, your study examined the influence of race on the application of capital punishment in Washington and you specifically looked at which stages in the process were affected by race. What were your major findings?

Heather Evans 0:54

Well, there were really three stages of capital sentencing that we wanted to examine. The first was, we were interested in what factors were most salient for prosecutors in determining which cases would be charged with aggravated murder in the first place. So, while there’s a list of circumstances that can count as aggravating circumstances, it’s ultimately up to prosecutors to decide whether or not to charge a defendant with aggravated murder. Unfortunately, for this first stage, we just didn’t have adequate data to really do that examination. But the second and third stages we did have the data to look at and the second stage was really looking about after a person had been charged with aggravated murder, what factors influence the decision to file a death notice? That is, to put the death penalty on the table. And the third stage was examining when juries, and in some cases judges, decided to impose a capital sentence. And what we found was several important factors played a role in prosecutorial decisions to pursue the death penalty, most of them legal factors, including the number of prior convictions of a defendant, the number of alleged aggravating circumstances, if the crime was a sex crime, if the victim was a law enforcement officer. And the presence of these increased the likelihood that a death notice would be filed by prosecutors. We found one non-legal factor, and that is whether the case received a lot of publicity that increased the likelihood of the death penalty being pursued. And this was something indicated by the judge on the trial report that there was extensive publicity about the crime. And if there was extensive publicity present, prosecutors were nearly four times as likely to seek capital punishment. In the third stage, we found that juries were more likely to impose the death penalty, the more aggravating circumstances were present. So they were less likely to impose deaths, the greater the number of mitigating circumstances, the greater the number of defenses that were presented. And then we found that Black defendants, controlling for all other legal factors, were four and a half times as likely to be sentenced to death as non-Black defendants. Later, when we had more complete data, we also found an effect of race of victim. So that if a victim was white, defendants were more likely to have prosecutors file a death notice, so put the death penalty on the table.

Anne Holsinger 3:27

Interesting. So, you said that you didn’t find evidence that Washington state prosecutors were discriminating on the basis of the race of the defendant in their charging practices, but capital case juries were still four and a half times more likely to sentence Black defendants to death than similarly-situated white defendants. So, even though the state actors did the part of their jobs in what appeared to be a race neutral way, juries were still discriminating. Do you have any sense of why that was happening?

Katherine Beckett 3:55

So, this is something that we don’t have direct evidence about, but the research literature has identified a number of factors that contribute to bias in decision making outcomes by juries, not only in death cases, but also in other kinds of cases as well. We know for example, that implicit bias is pervasive and affects perception and decision making. This has been amply documented particularly through experimental studies and also specifically in the context of capital cases. The death qualification process is also a contributing factor. So, we know that people who are in favor of the death penalty are more likely to exhibit implicit and possibly explicit bias and by excluding people who don’t feel comfortable or are philosophically opposed to the death penalty, we amplify the implicit bias that exists in the general population. We also know that there are many barriers to participation in juries by people of color and low-income people in general. These factors include things like the lack of income replacement for jurors, felony disenfranchisement, as well as laws that allow prosecutors to strike jurors for no particular reason, which gives a great deal of room for striking jurors based on race and ethnicity. So all of those factors contribute to creating juries that are not necessarily representative of the general population. And we know that this really matters because there’s also evidence that even the presence of just one person of color on a jury changes the way that white jurors deliberate, they become more methodical and consider the defense arguments in a more systematic way.

Anne Holsinger 5:42

So, you mentioned a lot about the jury selection process, and other studies have shown that death qualified juries are more xenophobic than the general public and more likely to harbor racial prejudice. They also show that prosecutors disproportionately strike jurors of color, even when they say they’re not trying to discriminate on the basis of race. So, do you think it’s possible to have a jury selection process like the one we have in death penalty cases without risking the discriminatory outcomes that you found?

Katherine Beckett 6:11

No. It’s pretty clear that substantial changes would have to be made to the process for that to occur. And even if those changes did take place, we’re left with a population that we know also harbors implicit bias. There’s also research that shows that the dynamics in jury rooms tend to amplify those biases. So, I think it would be a very difficult thing to modify through some tweaks to the jury selection process.

Anne Holsinger 6:38

Do you think there’s anything special about juries in Washington that make them more discrimination-prone than death penalty jurors elsewhere in the country? And if not, what does your study tell us about what’s probably going on in the death penalty in other states?

Katherine Beckett 6:53

We really don’t have direct data on this. Our study was limited to Washington State, so it’s difficult for us to draw any conclusions about how Washington compares to other states. But I would note that Washington is a pretty white state, I believe about 70 or 75% of the state population, possibly even more, identifies as white. And in a state with those kinds of demographics, I think you’re more likely to end up with all white juries, which we know from the research tend to be characterized by more pro-death sensibilities and higher levels of implicit bias.

Anne Holsinger 7:28

So, research like yours on discrimination in capital cases always has to account for the effect of non-racial factors like the severity of the crime, location where the trial took place. You mentioned some of those factors that affected prosecutors’ decisions about whether to seek the death penalty. What other factors did you include in your research, and how did you rule those out as the source of the jury sentencing disparities?

Heather Evans 7:53

The real strength of regression models is that you can include lots of different factors at once and determine the impact of each individual factor’s unique influence on an outcome when those other factors are also impacting the outcome. That’s what we mean when we say, kind of, in statistical speak, that we controlled for other factors. Meaning that when we looked at race, while we were testing, okay, we were saying if a Black defendant was charged with the same crime, exactly all the same legal factors as a non-Black defendant, how likely is the outcome to differ? And in the process, we get two important pieces of information. One is the unique impact of a given factor, and the other is a measure of importance. That is, when we use conventional thresholds for determining what is significantly, or statistically-significantly, impacting the outcome. So, if any individual factor did not meet that threshold, then we rule it out as not being significant to the outcome. In this case, the outcome being whether or not a defendant was sentenced to death. So, the number of cases, however, included in each model kind of sets a limit on how many factors you can include at one time. When examining juries’ decisions of whether or not to impose a death sentence, we can only include seven variables or seven factors at one time. So, we spent really a considerable amount of time testing lots of different factors in lots of different combinations. Overall legal factors that we tested, included, those I’ve already mentioned, so number of prior convictions. We also tested whether those prior convictions were for violent crimes, for sex crimes, if homicide was among prior convictions. We looked at number of aggravating circumstances, number of mitigating circumstances, number of victims, whether or not the defendant pled guilty, guilty by reason of insanity or not guilty. We also tested a cluster of potential victim characteristics. Some that according to other studies done in other places, have sometimes been important. So, we looked at if the victim or the victims were minors or a child, if the crime was a sex crime, we looked at race of the victim. We looked at if the trial report indicated that the victim was held hostage, or if they endured really prolonged suffering that’s recorded on the special sentencing proceeding reports. We looked at some place-based variables. So, we looked at population density of the county in which the defendant was sentenced. We looked at the percentage of white, Black or Latino people in the county during the year of sentencing. We even looked at county revenue per capita in the county of sentencing. And then lastly, we looked at a number of jury characteristics. So we tested to see whether or not it mattered if the jury was all white, or if the juries had at least one member of the same race as the defendant. But importantly, after testing all these different models, these different constellations of factors, our final model included everything that should have legally mattered. And then again, we found a really pronounced effect for race of defendant.

Anne Holsinger 11:14

Where did you get the data that you used to put together all those different factors?

Heather Evans 11:20

The attorneys for Mr. Gregory enabled us to have access to all of the special sentencing proceeding reports. So, the trial reports that were completed by judges for aggravated murder cases. And so we took the information directly from those trial reports, coded them, so that we could build a database basically, that allowed us to do quantitative analysis that looked at these regression models to see, again, what were the most salient factors in determining the outcomes at these different stages of the process of capital sentencing?

Katherine Beckett 11:57

Those trial reports were available to us because of the nature of the Washington state statute, which requires proportionality review. And the reason those trial reports exist is to facilitate proportionality review, which is again, required under statute. So, in some states, collecting this kind of information is much more difficult if they don’t have a proportionality review requirement, and therefore don’t have these records of each aggravated murder case or each death eligible case.

Anne Holsinger 12:23

Wow. So, the kind of thorough research that you were able to do wouldn’t really even be possible in some other states.

Katherine Beckett 12:30

That appears to be the case. We’re learning more about other states now and I’ve definitely heard that in some states, it’s not even clear that the data could be collected.

Anne Holsinger 12:39

So, a study that was conducted in Philadelphia showed that in interracial murderers, Black defendants with more classically-African facial features were twice as likely to be sentenced to death as Black defendants with lighter skin, narrower noses and thinner lips. But in same-race murders, what the defendant looked like didn’t matter. There was no indication that the Philadelphia jurors were intentionally discriminating on the basis of the defendant’s physical appearance. Was there any evidence in your study that jurors were intentionally discriminating against Black defendants? And if discrimination like this happens even when juries are not trying to discriminate, what can be done about that?

Katherine Beckett 13:19

So, we have no data or evidence that speaks to this question one way or the other. And I think this really highlights the problem with the intent standard. The intent standard requires that discrimination can only be established by establishing that someone intends consciously and purposefully to discriminate. And if you stop and think about that, for a moment, it’s really difficult to imagine what kind of evidence one could even bring to establish that kind of intent. It might be things like notes that a juror wrote where they explicitly state their intent to discriminate. These are virtually impossible to find and probably don’t exist in many cases. What we know from research is that we have plenty of bias without restricting ourselves to intentional bias. We know that implicit biases are pervasive. And the intent standard really does not sit well, is highly incompatible with the body of research that demonstrates the pervasiveness of implicit bias.

Anne Holsinger 14:14

You mentioned earlier Mr. Gregory, and that, of course, is Alan Gregory, who was a death row prisoner who challenged his death sentence, and ultimately, that was the case that the Supreme Court of Washington used to overturn the death penalty. So, your research was commissioned by his attorneys. Did you approach your research differently because you knew it was going to be used in a legal case?

Katherine Beckett 14:38

Not really, we began as we would otherwise with a literature review, and just kind of explored what’s been found, how people have done their analyses, some of the theories that guide the selection of variables to include in the models, those kinds of things. So, our approach to the research was very similar. I can’t really think of any differences in terms of how we approached it and began to commence it. We did feel it was important to write clearly and for a non-technical audience; try to avoid as much jargon to the extent that that was possible. But really, it was a pretty similar approach to the research as it would have been if this were not involved in this case.

Heather Evans 15:18

Yeah. And I would add to that, I mean, one of the nice things about statistical analysis is statistics, they don’t change according to who commissioned the study. You know, the numbers are the numbers and the only difference for me in running these models was, again, to echo Katherine’s point, was really writing up the results for a non-academic, non-technical audience. There are a lot of really technical aspects to interpreting statistical results. And you know, there’s a line between what kinds of inferences you can make based on those results, and then what strays into the realm of conjecture. So, I found that we spent a considerable amount of time really explaining, in detail, not only to the court, but to the attorneys, kind of where those lines are drawn. And I have to say the attorneys were so respectful of our process. And there were numerous instances where they would directly ask, “well, based on these findings, does this mean ‘x’?” And we would say “no, it means ‘y’.” I would say the other thing that was different for me was the rather scathing critique of our work that was provided by the prosecutor’s expert witness was really a deviation from the experience of a typical peer review, in that there was no indication that there was a good faith effort, really, to evaluate our report and our results. And it was clear to me at least that their expert really tried to play on common misunderstandings about social science to create doubt about our results. So, that was different for me.

Anne Holsinger 16:54

Well, ultimately, you must have succeeded in communicating well to the court because they cited your study in State vs. Gregory, they said that Washington’s death penalty was imposed in an arbitrary and racially biased manner and struck it down. Did you ever anticipate that your research would have such a direct impact on state law?

Katherine Beckett 17:14

Not until later in the process, then you might have thought. In retrospect, it seems clear that that was a possible outcome. But at the time when we started, I think we just took the assignment on face value and sort of started doing the research and didn’t really think too much about the case. And the other thing that contributed to that is the attorneys did a pretty good job of keeping us at arm’s length from the details of the case. We didn’t know much about Mr. Gregory, I think they wanted it that way, so that there was a kind of independence in the process there. But over time, particularly around 2016, it started dawning on me that this could actually lead to a change in state policy. So I guess for me, it was kind of a gradual realization.

Heather Evans 17:56

You know, for me, this decision really exceeded my expectations. It was so validating to have the Supreme Court justices engage so thoughtfully, engage so deeply with not just our study results, but with the research process; asking us really educated questions, suggesting we test different models. It really gave me hope that in this political climate that we’re in right now, that things like facts and evidence and rigorous research could be included in a deliberation of how to achieve more equity in our criminal justice system. So I was very pleased.

Anne Holsinger 18:33

As we record this podcast, eight state legislatures have bills before them that would abolish the death penalty. What role do you think research like yours can play in death penalty policy decisions like those?

Katherine Beckett 18:45

I’m not sure. I mean, in terms of litigation through courts, I think really what it depends on is what the state constitution says about how discrimination is established. So in states where the intent standard prevails, this kind of evidence simply won’t cut the mustard, it will not establish intent to discriminate. So, I think a lot hinges, if you’re going through litigation, on the nature of the state constitution. In terms of the policy making process, I’m also not sure how much evidence of racial unfairness or discrimination will affect state legislatures, frankly. And I think a lot of people in the policy world think that evidence about the cost of the death penalty is going to be more impactful and more persuasive for state legislatures.

Anne Holsinger 19:32

Do you have anything else you’d like to share?

Katherine Beckett 19:33

I would just say that this was a big job, and many years, and it was particularly stressful work, especially as it became clear that the stakes were fairly high. But also, it’s a real pleasure to work as part of a team. It was great working with Heather and with the attorneys in this case. I think we all learn a lot when we do that and it does make the work more pleasurable. And obviously, as Heather said, it is extremely gratifying that the court took social science evidence as seriously as it did. And that sort of restores some faith in legal institutions for me.

Heather Evans 20:10

Yeah, I guess I would also highlight just how effective and impactful it can be to reach outside of one’s discipline and work with experts in other fields. I know that I really appreciated and benefited from the legal consulting that we received from Mr. Gregory’s attorneys, that helped us, you know, put together a very thorough and rigorous analysis of capital sentencing in Washington State.

Anne Holsinger 20:36

Thank you so much for taking the time to discuss this influential and impactful work. We really appreciate it.

Katherine Beckett 20:43

Great to be here.

Heather Evans 20:44

Yeah, thank you.

Anne Holsinger 20:45

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