Abstract

Excerpted From: Scott Phillips, Justin Marceau, Sam Kamin and Nicole King, Sacred Victims: Fifty Years of Data on Victim Race and Sex as Predictors of Execution, 114 Journal of Criminal Law and Criminology 249 (Spring, 2024) (81 Footnotes) (Full Document)

Any sensible discussion of criminal law must foreground the role that racial discrimination plays in the administration of justice in this country. Criminologists and lawyers who study American crime and punishment have urged us to “interrogate the system at every” level “in order to expose where racial bias lives in the criminal law.” In fact, leading scholars have rightly declared that it is impossible to understand any aspect of the “American criminal justice [system] without taking account of race.” The death penalty is no exception.

In one sense, the role that race plays in capital punishment has been well-documented. In the most famous study of the American death penalty, David Baldus, George Woodworth, and Charles Pulaski examined Georgia homicides and demonstrated that, controlling for other possible explanatory factors, the odds of a death sentence were 4.3 times greater in White victim cases than Black victim cases. In a previous article, Phillips and Marceau returned to the Baldus data and demonstrated that the pattern that Baldus identified with regard to the imposition of death sentences persevered throughout the appeals process--those who kill White victims are not just more likely to be charged with capital crimes and sentenced to death, but also more likely to have those death sentences upheld on appeal and ultimately carried out. The race of the victim has been shown to be a key predictor of both death sentences and executions. But race is not alone as a social category that predicts privilege and oppression.

This article takes the next step and considers the combined impact of both the race and the sex of the victim on the likelihood of a death sentence and eventual execution. Previous scholarship has documented that a death sentence is more likely in a female victim case than a male victim case. But this project provides the most comprehensive look at the intersection of race and sex in predicting death sentences and executions.

We deploy a variety of methods to study the intersection of race and sex in the operation of the death penalty. First, in Part I, we revisit the Baldus data, showing that the criminal justice system treats a murder very differently when a White woman is among its victims. This dataset is older than others we use, but it is a critical foundation insofar as it is the most comprehensive set of data studying all homicides in a jurisdiction over a period of years. We make a number of novel findings, including that there is a clear hierarchy of murder victims when it comes to capital sentencing; a death sentence was imposed in 17% of all cases involving a White female victim but only 0.9% of cases involving only Black male victims.

By following the Baldus cases through the appellate process, we also find that this same hierarchy persisted through to the execution stage. While 30% of those who were sentenced to death for killings that included a White female victim were ultimately executed, none, not a single defendant in Baldus's database, was executed after being sentenced to death for killings that involved only Black male victims.

The Baldus data is the most complete, most in-depth study of any capital system, and thus our findings here are more robust than any other quantitative project in this realm. However, the data is limited to a single state during a single era. Accordingly, in Part II, we use the FBI Supplemental Homicide Reports (SHR) to demonstrate that the findings in Part I are not isolated either to Georgia or to the time period studied by Baldus and his co-authors. The SHR provide the most recent and comprehensive data compiled from reported killings around the country, and allow us to roughly estimate the total number of death-penalty-eligible killings and to break down this finding based on the race and sex of the victim. Using this data, we compare the patterns of death eligibility to data on executions compiled by the Death Penalty Information Center. Our SHR findings confirm what we observed in the Baldus data from Georgia during the 1970s: the criminal justice system--whether in Georgia or elsewhere, whether in the 1970s or the present day--punishes murderers more seriously when White women are among their victims.

Finally, in Part III we explain the implications of these findings for the death penalty in the United States. The Supreme Court has refused to invalidate the death penalty based solely on evidence of discriminatory impact, and we have no reason to believe it will change course in the foreseeable future. But the Court has also expressed a concern that the death penalty should not be imposed in a way that produces either random or discriminatory results. Our findings demonstrate that many death sentences are imposed not because of the defendant's moral culpability or the relevant details of his crime, but because of outdated notions of chivalry and White supremacy.

[. . .]

In recent decades the number of death sentences and executions have declined dramatically. Death sentences are down by more than two-thirds since 2000, and this is true even in some of the states, like Texas, that have most robustly embraced the death penalty during the modern era. An increasing number of states--New Mexico, Illinois, Connecticut, Maryland, New Hampshire, Colorado, and Virginia--have abolished the death penalty in recent years and there is currently a federal moratorium on executions.

We are not going to make broad pronouncements about the doctrinal implications of our research here. We doubt that these findings, on top of those of Baldus and others, will cause this Court to rethink its decision in McCleskey v. Kemp. They will not. If the Court was willing to tolerate a “white lives matter more” approach in that case, there is little reason to believe that the additional information that %7F'white women's lives matter most” will jolt the Court into acknowledging the untenable arbitrariness of the American death penalty.

Accordingly, our ambitions for this research to fundamentally reorient existing legal doctrine are modest. Still, we hope that this project's ability to expose previously undocumented forms of arbitrariness in the system will contribute to a greater understanding of how the death penalty truly operates on the ground. Justice Brennan famously quipped in his dissent in McCleskey that the Court was afraid of “too much justice.” As more research is done in this area, fair-minded people will increasingly come to realize that the system is plagued with “too much arbitrariness.” Phillips and Marceau recently showed that the race-of-the-victim effect Baldus identified persevered, and was in fact magnified during the appellate process through execution. In this project, we show that many of the conclusions about victim race in prior studies, such as Baldus's, are in large part actually driven by a combination of race and sex. The combination of race and sex is even more powerful than race alone, and by demonstrating this through a series of studies, we provide concrete quantitative support for the view that intersectionality is, and always has been, predictive of the death penalty's arbitrariness.

From a distance, the death penalty appears sanitized and fair because of the thick layers of procedural bureaucracy that overlay the system and the fairness implied by multiple layers of judicial, jury, and executive branch review. Prosecutors celebrate their diversity trainings, and certainly the quality of defense representation is much higher than it was in past decades. In the aggregate, these factors have slowed the death penalty machinery almost to a halt. Death sentences and executions are thus a rarity in modern America. But unfortunately, the same problems of arbitrariness that plagued the system before it was struck down in 1972 persist.

Decades ago, it was fair to worry about arbitrariness in the system such that irrelevant factors such as race or class or sex might predict who gets sentenced to death and executed. This project joins a growing body of literature proving that the operation of the modern death penalty continues to be haunted by these problems of arbitrariness at every stage. Rather than getting better, the arbitrariness appears to be at least as bad as it was a half-century ago.

Professor of Sociology, University of Denver, Department of Sociology and Criminology, Ph.D., University of Georgia; M.A. Louisiana State University; B.A., Texas Christian University.

Professor of Law, University of Denver Sturm College of Law, J.D., Harvard Law School; B.A., Boston College.

Professor of Law and Chauncey G. Wilson Memorial Research Chair, University of Denver Sturm College of Law, J.D., Ph.D., University of California, Berkeley; B.A., Amherst College.

J.D., University of Denver Sturm College of Law.