Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the "Impossibility" of Its Prevention, Detection, and Correction

• NCJ Number: 175525
• Journal: Washington and Lee Law Review Volume: 51 Issue: 2 Dated: Spring 1994 Pages: 359-430
• Author(s): D C Baldus; G Woodworth; C A Pulaski A,
• Date Published: 1994
• Length: 72 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article challenges the view that racial discrimination in capital sentencing is inevitable and impossible to prevent, detect, and correct.

Abstract

The authors argue that with proper procedures and the firm enforcement of proscriptions against racial discrimination, capital sentencing systems can be largely purged of the discrimination that currently exists. This article considers recent developments in the New Jersey and Florida Supreme Courts that provide models for examining structural discrimination in capital sentencing and discrimination in individual cases. One source of resistance to the adaptation of legal initiatives to curb racial discrimination in capital sentencing has been uncertainty about how best to use statistical evidence as a basis for detecting purposeful discrimination. The authors focus on various presumption-based models for evaluating statistical evidence of discrimination in individual cases. One is a risk- based model of proof patterned after Justice Blackmun's dissenting opinion in McCleskey v. Kemp; it would entitle a defendant to relief if he/she showed systemic, purposeful discrimination in a death-sentencing system that implicated the case. A more conservative "but-for" causation model of proof, used in employment cases and other contexts, would permit the State to prevail despite statistical evidence of systemic, purposeful discrimination. The deaths sentence in an individual claimant's case could be carried out if the State could prove by a preponderance of objective evidence that race was not a "but- for" factor in the defendant's case. This would involve the State's showing with evidence from other similar cases that because of the aggravated nature of the defendant's case, he/she would have received a death sentence irrespective of his/her race or the race of the victim. A less conservative causation-based model of proof would allow the State to prevail if it could show that race was not a "substantial factor" in the case. Under a third model, the State could prevail with proof that race was not a "motivating factor" in the case. 5 tables, 207 footnotes and appended relevant legislation