Racial Bias in Capital Sentencing

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A new study of capital sentences handed down in first degree murder cases finds evidence of racial bias against minority defendants who killed white victims. The study (abstract here; pdf here) was conducted by Harvard economist Alberto Alesina and Eliana La Ferrara of Universita’ Bocconi. It finds that for sentences handed down to minority defendants convicted of killing white victims were as much as 9 percent more likely to be reversed than in cases involving a minority defendant killing a minority victim. The study examined the race of the defendant and of the victim(s) for all capital appeals that be came final in the U.S. between 1973 and 1995.

To reach their conclusions, the authors exploited a peculiar feature of the capital sentencing process in the U.S.: that all first degree capital sentences are automatically appealed. They then focused on errors reversed by higher courts, pinning their results on the assumption that superior courts can only improve on the accuracy of first sentencing and therefore remove part or all racial bias.

A summary of their results:

When we implement our test we find results consistent with the presence of racial prejudice: ceteris paribus, first degree courts are more severe (i.e., they tend to give more death sentences which are then reversed) against cases involving a minority defendant killing one or more white victims. This result holds strong both for the cases that reach the final stage of revisions and appeal, the Habeas Corpus stage in Federal Courts, and for the full sample of cases in the first appeal stage, called Direct Appeal. For Habeas Corpus cases involving a minority defendant, the error rate was 37.5 percent if the victim was white, and 28.4 percent if it was not white, with a statistically significant difference of 9 percentage points. For cases involving a white defendant the di§erence indicates higher reversal rates when the victim is non-white, but it is not significant. In the Direct Appeal sample, cases involving a minority defendant had an error rate of 37.7 percent if the victim was white and 34.7 percent if the victim was a minority, with a statistically significant difference of 3 percentage points. In cases involving a white defendant the difference is again in the opposite direction and not significant. This pattern of results is consistent with racial bias according to our rank order test.

Not surprisingly, results differed by region.

When we disaggregate the results by region, we find that the effect is driven by Southern States. The difference in error rates in these States is large: in Habeas Corpus cases, the error rate is 15:5 percentage points higher for minority defendants with white victims as compared to minority defendants with non-white victims (p-value :01): For the Direct Appeal sample the corresponding difference is 3:3 percentage points (p-value :13).

 

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COMMENTS: 15


  1. Tim says:

    Can you put it in Table form? The time it takes to read through the text and decipher it isn’t worth it to me. A quick table would do so much.

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  2. Alex says:

    The study doesn’t break it out by state, but I wonder how much Texas in particular contributes to this.

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  3. Ben Sauer says:

    Presumably, this could also be read as appeals courts show a pro-minority bias?

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    • Steve O says:

      I don’t believe this is the case, but I also think it’s faulty reasoning to automatically assume that higher courts are better at their jobs, or less biased.

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  4. James says:

    How do we know that there isn’t a bias in the reverse direction, so that appeals courts are more likely to reverse a decision if the defendant is a minority? Understand that I’m not saying that this is the case, only that we don’t know (at least from the summary), and so it seems the researchers are letting their conclusions run ahead of their data.

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    • Michael says:

      Well that’s easy.

      You have to look at the reasons behind the reversals. Then once you’ve grouped those, you look at any ambiguous cases and compare those.

      For instance, maybe a case is reversed on a technical point of law. That would not be either racist or pro-minority no matter who the defendant or the victim is. So you wouldn’t consider any of those.

      And of course the issue may not be the judicial system itself, but any given jury pool or the behavior of law enforcement officers. If either of those groups is slightly biased, and the lower courts are acting in good faith toward them, there would be a higher reversal rate as well.

      I would like to see a more recent set of statistics. It’s very possible that some of the reversals are from trials that were initially held in the 1960s, and maybe even the 1950s. Much like the geography issue, cases from that time period that took 10-15 years until they were overturned in 1973 may be influencing the numbers.

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  5. Psychohistorian says:

    This is disturbing. It seems that it’s even *more* disturbing that the average error rate is about 30% in capital cases. It’s interesting that, “Judges screw up fairly frequently in capital cases,” is far less newsworthy than, “judges screw up somewhat more often in capital cases with a minority defendant.”

    Not that that in any way makes this OK. I’m just shocked the base error rate is so high.

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  6. Shane says:

    I’d love to see if there is evidence of sexual bias in deciding capital sentences too: are criminals of one sex more likely to be executed than another?

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  7. J says:

    “pinning their results on the assumption that superior courts can only improve on the accuracy of first sentencing”

    Is there any rational basis for that assumption?

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  8. Brandon Kirkpatrick says:

    From the data given, it is just as easy to draw the conclusion that appeals courts are pro-minority.

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  9. Andrew says:

    Sad that this is America. Well, yet again, the conventional wisdom that our government has NOTHING wrong with it (not that it’s horrible or I hate it) but like a gun being less dangerous than a swimming pool, this will suprise some, but not others. Sadly, it doesn’t suprise me.

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  10. Mikie !! says:

    While these studies are interesting, what is not in them makes me pause and ask about the accuracy of any assertions or conclusions a person might draw from it.

    For example, did the defendant use a Public Defender, or were they able to procure their own legal counsel? This would speak to financial resources as a means of obtaining fairness. Look at the Duke Lacrosse case. A bunch of kids who had parents who were able to mount a real legal defense. I have little doubt that if these were kids from an impoverished background, things may have turned out differently.

    This could be a confounding variable, but we are not presented with the data.

    I have no doubt that African Americans get a raw deal in the justice system when compared to White Americans. I also believe racism plays a part in it. But how much of this could be mitigated with better attorneys, or at least attorneys that were not completely over-taxed as in the case of a PD? IN fact in many (most or all?) counties in the US, District Attorney’s get paid MORE than a Public Defender !! The deck is already stacked against a person of little means.

    We will never know the answer – until someone looks at the entire issue without the bias of trying to prove something.

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    • J says:

      “I have little doubt that if these were kids from an impoverished background, things may have turned out differently”

      Not in the way being discussed here though. Even a lowly public defender would have destroyed that case – they just wouldn’t have been able to destroy the prosecutor too.

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    • Miley Cyrax says:

      “For example, did the defendant use a Public Defender, or were they able to procure their own legal counsel? This would speak to financial resources as a means of obtaining fairness. Look at the Duke Lacrosse case. A bunch of kids who had parents who were able to mount a real legal defense. I have little doubt that if these were kids from an impoverished background, things may have turned out differently.”

      If they weren’t wealthy white kids they wouldn’t have been targeted by a crusading district attorney, nor vilified by the media.

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  11. David says:

    You buried the lede:
    “As we report below,
    51 percent of defendants in the ?1st stage of appeal are white and 41 percent are African
    American. On the other hand, 78 percent of these cases involve at least one white victim,
    and 17 percent at least one African American victim.”

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