Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

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.

Continue reading “Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography”

Research on Wrongful Convictions: Half-Full or Half-Empty?

Jon Gould and Richard Leo have an interesting new paper entitled “One Hundred Years Later: Wrongful Convictions After a Century of Research.”  They are responding to a recent claim by Samuel Gross and Barbara O’Brien that researchers “do not know much about false convictions.”  Gould and Leo essentially take the “glass is half-full” position – although our knowledge may be less precise than we might like, we have nonetheless come a long way since American researchers first began to study wrongful convictions a century ago, especially as a result of studies of DNA-based exonerations over the past twenty years.  In advancing the claim, Gould and Leo provide a helpful overview of the burgeoning empirical literature on the frequency, consequences, and causes of wrongful convictions.

Here are a few tidbits I found especially intriguing:

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Milwaukee Judge Permits Challenge to Felon Disenfranchisement Law to Proceed

Felon disenfranchisement has been challenged across the country under a variety of legal theories, but with very little success.  Now, however, it appears that a challenge under the Voting Rights Act may actually proceed to trial in Milwaukee County Circuit Court.

The challenge is being mounted in unusual circumstances.  The state has charged Michael Henderson and Olando Maclin with voting fraud based on allegations that they voted in the 2008 election despite being disqualified from doing so because they were felons on probation supervision at the time.  Henderson and Maclin moved to dismiss the charges, claiming that Wisconsin’s disenfranchisement law violates the federal Voting Rights Act of 1965.  The state responded to the motion to dismiss by arguing that the Voting Rights Act does not apply to felon disenfranchisement as a matter of law — regardless of any evidence that might possibly be submitted of racial disparities in the criminal justice system, the Voting Rights Act categorically exempts felon disenfranchisement from its general bar on voting disqualifications that deny members of one race an equal opportunity to participate in electoral processes.

Judge Richard Sankovitz’s ruling persuasively explains why the Voting Rights Act should not be read to include such an implicit limitation.  The ruling also takes up in a preliminary way the more difficult question of what exactly the defendants will have to prove at trial in order to prevail on their defense.

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Risk Assessment and Racial Disparity

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.”

I’ve heard variations on this argument before, but Harcourt’s new paper adds some interesting historical dimensions to the analysis.  For instance, as a “cautionary tale,” he discusses the turn to risk-based institutionalization in the 1970’s, which resulted in a dramatic increase in racial disparities in mental hospitals.  “[T]he proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978 . . . .”

Harcourt also describes the explicit use of race as a predictor of dangerousness in parole decisions between the 1930’s and 1970’s — a shocking practice to contemporary ears.  Although criminal history may correlate closely with race, it does not seem nearly so pernicious to rely on criminal history as to rely expressly on race.  Nonetheless, I share Harcourt’s sense that progressives are apt to be disappointed by risk-based early release initiatives.  Simply quantifying risk more precisely still leaves unanswered the critical ethical question of why we should want to release anyone who poses any degree of risk, no matter how small.

Cross posted at Marquette Law Faculty Blog.

Armstrong and Judicial Incompetence

Today, I reread United States v. Armstrong, 517 U.S. 456 (1996), in preparation for teaching a class on selective prosecution tomorrow.  I remain unpersuaded by the Court’s analysis.  The defendants, who were indicted in federal court for dealing crack, sought discovery from the government in order to determine whether they and other black defendants were selected for federal prosecution (and hence for the harsh federal mandatory minimums for crack offenses) because of their race.  In support of the motion, they submitted affidavits indicating that all or nearly all federal crack defendants in their district were black, while many crack defendants prosecuted in the local state court system were not black.  The district court judge granted the discovery motion, but the Supreme Court later held that the defendants were not entitled to pursue their selective prosecution claim.

The Court’s analysis seems to be driven by a strong presumption against judges second-guessing prosecutorial charging decisions.   Continue reading “Armstrong and Judicial Incompetence”