The federal death penalty is plagued by two important types of disparity. One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black. The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and 9 have produced nearly half. Although both disparities have been much commented on separately, it seems they are actually connected. Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).
Their thesis is simply stated. A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall. Think diverse urban cores surrounded by lily-white suburbs. Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries. Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.
The patterns are striking.
For instance, both federal districts in Missouri display the racial demographics that are of interest to Cohen and Smith (racially diverse urban county surrounded by heavily white counties), and Missouri has returned more federal death sentences than New York, California, and Florida combined (p. 436). In fact, Cohen and Smith contend that all eight of the districts that have returned more than two federal death sentences exhibit pronounced county-district racial disparities.
By contrast, the three districts in which it has been hardest for the feds to get a death sentence are all majority-minority: District of Columbia, Puerto Rico, and the Southern District of New York. “These three federal districts account for 55 of the 460 death-authorized cases but are not responsible for a single death sentence” (465). Expanding the view to the ten districts in which it has been hardest to get a death sentence, eight have “similar demographic profiles between the federal district and the most populous county.”
Cohen and Smith have uncovered a fascinating pattern, although it surely does not tell the whole story. What about the Eastern District of Wisconsin, for instance? While the largest city in the District, Milwaukee, is 37 percent black, the District as a whole is only nine percent black. This disparity would seem to put the District at considerable risk for the racial dynamics that are of concern to Cohen and Smith, but we have no death sentences. In fact, the numbers for Milwaukee/E.D. Wis. are almost identical to the numbers for Kansas City and the Western District of Missouri, which leads the nation in federal death sentences.
Indeed, while I haven’t cranked the numbers, I strongly suspect there are a great many other death-free districts with similar profiles to these two. High county-district racial disparities may be necessary for federal death sentences, but they are not necessarily sufficient.
Even at that, what Cohen and Smith have uncovered should heighten concerns about the role of racial bias in the administration of the federal death penalty. For that reason, their reform proposals (especially drawing the venire for federal capital trials from the county of the offense, as federal law mandated prior to the Civil War) deserve attention.
I wonder, too, if the race-geography dynamics they have uncovered are apparent more broadly in federal criminal trials. If racial bias is a problem in capital trials in some districts, why would it not also be a problem in noncapital trials? As federal law enforcement has become more oriented to responding to street crime, which is really a local problem, it makes sense for federal juries to be drawn on a more local basis, too.