ost jurors do not realize that they could be letting race of the defendant and/or the victim infl uence their decisions. While there are exceptions, most death-qualifi ed jurors do not realize they harbor any type of racial prejudice or other preconceptions about defendants or victims based on individual characteristics. But there is some level of bias concerning certain individual characteristic within each juror—within every person (Culotta, 2012)—and cognitions related to biases or stereo- types are often unconscious and automatic (Andersen, Moskowitz, Blair, & Nosek, 2007; Gross & Mauro, 1984). As a result, jurors, prosecutors, judges, or other people in the system may not be aware that personal biases have infl uenced their decisions.
Evidence is also emerging that errors resulting in miscarriages of capital justice may be dispropor- tionately high in cases involving black defendants. For example, a 2017 analysis by the Death Penalty Information Center (DPIC) revealed that most of the recent exonerated death row cases involved misconduct by police or prosecutors as the major cause and also that defendants exonerated from death row in misconduct-related cases were disproportionately black (DPIC, 2017). In part, these patterns might refl ect minority defendants being disproportionately likely to have inadequate defense representation in their cases (Cole, 1999), such that misconduct and errors that ought to have been effectively challenged were in fact not.
Still, these facts do not answer the question of why racial discrepancies are so pervasive in the Ameri- can death penalty system. While there is no defi nitive answer to this query, the explanations offered are usually rooted in either a consensus or confl ict theoretical orientation. Consensus accounts emphasize the salience of variables presumed legally relevant, like offense seriousness and prior legal record, and use the disproportionate involvement of blacks in violent crime to explain race-of-defendant dispari- ties. With regard to race of victim, they point out that the majority of capital homicides are intrara- cial, involving white offenders and white victims, and employ this to explain why more than half of modern era executions have involved white offenders and victims. Confl ict analyses posit that various societal groups interact based more on confl ict than accord and that the more powerful groups will use their authority and other means of control to retain power and oppress subordinate groups. Race is an important basis for group formation; whites have relatively more power, and whether by intent or by effect, laws are created and enforced, and punishments are administered, in a way to protect that social hierarchy and control less powerful groups such as African Americans (see Quinney, 1970). Less pow- erful groups are underrepresented in positions of authority and often form a large segment of socially disadvantaged citizens (Archibald, 2015). Members of less powerful groups are seen as less valuable, so crimes are seen as less serious and deserving of less punishment when they are the victims (Hawkins, 1987). Conversely, crimes against the powerful group are taken more seriously, and those who offend against this group’s members (white victims) are construed to deserve severe punishments. Perhaps the most serious situations involve members of a subordinate group (African Americans) committing actions against those in power (white victims), which are defi ned as signifi cant threats to the prevailing social order (e.g., killing of a police offi cer or rape and murder of a white woman). As such, these situ- ations are strong candidates to be assigned the harshest punishments (Gross & Mauro, 1984).
31 Race and the Death Penalty
Scholars should continue to explore these and other possible explanations for the observed racial discrepancies within the capital punishment system. Understanding the underlying sources of racial inequalities will be helpful in creating policies and procedures to help reduce fl aws and create a more egalitarian process. Since it is unlikely that any large-scale changes in the process will be implemented in the immediate future, death row inmates will have to continue seeking corrective action for biases in their individual cases, as required by McCleskey .
Opportunities for Recourse: Are There Methods to Right the Wrongs?
As part of the ruling of the McCleskey case, members of the court acknowledged their responsibility to ensure that existing laws are applied in a way that is consistent with the Constitution and suggested that the petitioner’s claims of unfair treatment were best addressed in the legislature where laws are cre- ated. This recommendation did not go unnoticed by lawmakers, and two federal bills were proposed in the 1988 and 1990. The two proposals were the Racial Justice Act and the Fairness in Death Sen- tencing Act. The purpose of these acts was to provide death row inmates with an outlet in which to challenge their sentences based on claims of racial discrimination in a process similar to those used by individuals claiming discrimination in regard to employment or housing (Baldus et al., 1994; Baldus & Woodworth, 2003a). The acts would create a process whereby inmates could present evidence of racial discrimination in their individual cases, and the state would have a chance to refute the claims. These proposals were strongly opposed by prosecutors, who offered contradictory arguments against the acts. Some prosecutors argued that the proposals were unnecessary because there was no racial discrimination in the death sentencing process, while others reasoned that the bills would essentially result in elimination of the death penalty as an option because some racial discrimination was going to be present within the capital punishment system regardless of any safeguards. Unfortunately, each of these proposals has been defeated in the Senate each year they were presented for a vote (Ross, 1997).