Constitutional Law

Racial Disparities in Capital Punishment: Desocialization Offers a Plausible Plan to Ensure Equal Justice

by Scott Phillips, associate professor, Department of Sociology and Criminology, University of Denver

Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,123 people have been executed in the United States. Texas is often considered the epicenter of the death penalty debate, accounting for 414 executions. Yet executions are not distributed evenly across Texas. Harris County – home to Houston – is the true capital of capital punishment. With 104 executions, Harris County has executed more offenders than all the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions in the nation after Texas. 

My research, recently published in an ACS Issue Brief, examines the following question: Did race influence the District Attorney’s (DA) decision to seek the death penalty or the jury’s decision to impose the death penalty against defendants indicted for capital murder in Harris County, Texas from 1992-1999? 

The results of my research suggest that the DA was more likely to seek the death penalty against black defendants and on behalf of white victims. Interestingly, juries provided a partial correction to such disparities at trial – presumably a response to the DA occasionally overreaching. Nonetheless, racial disparities in overall death sentences remain.

The existence of racial disparities does not suggest that the DA intended to treat people differently. The DA’s publicly stated goal is to administer equal justice. Toward that end, the DA’s office has a long-standing policy of not including the race of the parties in the “capital murder summary memorandum,” the key document prepared by prosecutors in the office that the DA uses to decide whether to seek the death penalty. Unfortunately, this commendable practice is not sufficient.  

To propose a plan for reducing racial disparities, I draw on sociologist Donald Black’s concept of desocialization. Desocialization is based on a simple but powerful idea: the race of the parties cannot influence a legal proceeding if such information is unknown. How can the Harris County DA’s office remove race from the decision to seek death? To begin, the office should hire an assistant to strip the memorandum of all information that might insinuate the race of the parties. The assistant should also provide the DA with newspapers and tapes of the local news that have been stripped of stories about pending capital murder cases – the sort of sequestering required of jurors. If the DA happens to learn the race of the parties, then a designated alternate should decide whether to seek death. In short, the proposal expands existing practices within the DA’s office to create a genuine race-blind decision making process – the DA alone decides whether to seek death without knowing the race of the parties. The Issue Brief describes the proposal in more detail and responds to potential critiques. Put simply, blind justice requires a blindfold.

Capital punishment is both resilient and constricted. In 1972, the Supreme Court struck down all existing capital punishment statutes in Furman v Georgia.  Some thought the decision signaled a lethal blow for the death penalty. But in 1976 the Supreme Court upheld guided discretion statutes in Gregg v Georgia, beginning the modern era of capital punishment. The Supreme Court teetered on the brink of abolishing capital punishment again in 1987, but concluded in McCleskey v Kemp that statistical evidence of systemic racial disparities, without evidence of discrimination in the case at hand, does not establish a constitutional violation. 

Yet the Supreme Court has also narrowed the scope of the death penalty, categorically excluding juveniles, the mentally retarded and child rapists who do not kill their victims. Moreover, executions are on the decline due to concerns about innocence and cost. Indeed, cost concerns may become central in the current economic crisis. Paradoxically, then, capital punishment is both entrenched and atrophied. 

Given the staying power of capital punishment, new ideas are needed to ensure that the ultimate state sanction is administered in the most even-handed manner possible. Desocialization offers a broad concept that could be tailored to any legal setting. The proposed plan is procedural rather than revolutionary, logistical rather than utopian, and affordable rather than exorbitant. Most importantly, desocialization has the potential to reduce the fundamental injustice of disparate treatment.

Full post as published by ACS Blog on October 14, 2008 (boomark / email).