A recent arti­cle in the Michigan State Law Review exam­ined the prob­lem of racial bias in cap­i­tal cas­es, par­tic­u­lar­ly with respect to jurors’ deci­sion mak­ing. Authors Mona Lynch and Craig Haney (pic­tured), both pro­fes­sors at the University of California, sum­ma­rize past sta­tis­ti­cal stud­ies on race and the death penal­ty and present new exper­i­men­tal research on juror deci­sion-mak­ing in a sim­u­lat­ed cap­i­tal tri­al. Research par­tic­i­pants were shown one of four sim­u­lat­ed tri­al video­tapes. The videos were iden­ti­cal except for the race of the defen­dant and the race of the vic­tim. Participants who viewed the case with a black defen­dant were more like­ly to sen­tence the defen­dant to death, par­tic­u­lar­ly in the sce­nario with a white vic­tim. Participants’ ques­tion­naires revealed that the jurors gave more weight to mit­i­gat­ing evi­dence when the defen­dant was white than when he was black, and were sig­nif­i­cant­ly more like­ly to improp­er­ly use mit­i­gat­ing evi­dence in favor of a death sen­tence when the defen­dant was black. The researchers not­ed, ​“We sur­mised that the racial dis­par­i­ties that we found in sen­tenc­ing out­comes were like­ly the result of the jurors’ inabil­i­ty or unwill­ing­ness to empathize with a defen­dant of a dif­fer­ent race — that is, White jurors who sim­ply could not or would not cross the ​‘empath­ic divide’ to ful­ly appre­ci­ate the life strug­gles of a Black cap­i­tal defen­dant and take those strug­gles into account in decid­ing on his sentence.”

The study empha­sized the sub­con­scious nature of racial bias and offered poten­tial reme­dies. The authors con­clud­ed, ​“Short of out­right abo­li­tion, of course, the chal­lenge of over­com­ing racism in the admin­is­tra­tion of cap­i­tal pun­ish­ment will require a cre­ative, deci­sive, and over­ar­ch­ing set of reme­dies to be per­sis­tent­ly pur­sued and con­sci­en­tious­ly imple­ment­ed. These reme­dies must be premised on what we now know about the nature and oper­a­tion of mod­ern racism, includ­ing the frank recog­ni­tion that, con­trary to pre­vail­ing legal wis­dom, it is not sole­ly a prob­lem of con­scious, moti­vat­ed indi­vid­ual actors who engage in ​‘pur­pose­ful discrimination.’ ”

(M. Lynch and C. Haney, ​“Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury,” 2011 Michigan State Law Review 573 (2011)). See Race and Studies. Listent to DPIC’s pod­cast on Race.

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