No Racial Bias in the Federal Death Penalty

Vastly under-reported by the media was a Rand Corporation study on the decision of Federal prosecutors to see the death penalty for crimes under their jurisdiction.

Liberal and leftist death penalty opponents constantly repeat the mantra that the death penalty is “racist.”

But when Federal prosecutors decide whether to try to get the death penalty for those they are charged with prosecuting (and not a lesser punishment) race simply doesn’t matter.

A statistical analysis of federal prosecutors’ decisions about whether to seek the death penalty has found no evidence of racial bias, according to a RAND Corporation report issued today.

The RAND study, which is one of the most thorough examinations ever conducted of federal death penalty prosecutions, examined the files of 652 defendants who were charged with capital offenses between Jan. 1, 1995 and July 31, 2000 during U.S. Attorney General Janet Reno’s term in office.

Researchers say their findings do not relate to defendants prosecuted in federal courts before or after the study period, or to defendants prosecuted in state courts.

Three separate research teams found that the characteristics of the crime – not the racial characteristics of either the defendant or the victim – could be used to make very accurate predictions of whether federal prosecutors would seek the death penalty.

The study found that the likelihood of a decision to seek the death penalty rose for murders that were particularly heinous – usually involving a number of aggravating circumstances such as the killing of several victims, sexual abuse of the victim, the killing of an elderly person or a child, premeditated murders where there was extensive planning, killings in which the victim was set on fire, and murders in which the victim was mutilated or dismembered.

“Our findings support the idea that race was not a factor in the decision to seek the death penalty once we adjusted for the circumstances of the crime,” said Stephen Klein, a RAND senior research scientist and co-leader of the research project. “We were surprised by how well we could predict the decision to seek the death penalty based on the nature of the crime.”

The study’s findings are strengthened by the fact that three separate research teams that used different methods to analyze information about the 652 defendants and the crimes they were accused of committing all reached the same conclusion.

Researchers found that prosecutors sought the death penalty against a higher percentage of white defendants than either African-American or Hispanic defendants. In addition, the death penalty was more likely to be sought against defendants who murdered whites than against those who killed African-Americans or Hispanics.

However, after accounting for the fact that certain types of killings were more heinous than others and therefore more likely to result in a decision to seek the death penalty, researchers found that the racial differences in the unadjusted data disappeared.

Studies of the death penalty as it is administered by the states generally do show a racial bias — but not the racial bias that most people expect.

Under such circumstances, there appears to be a bias against black victims. That is to say, people who murder black people are less likely to be sentenced to death than those who murder white people.

There is virtually no evidence of a bias against black offenders.

Social scientists have put in place elaborate controls for the heinousness of the murder, and the effect doesn’t go away.

Why there should be this bias is a bit of a puzzle, since all the obvious theories about racial bias suggest that racist prosecutors, judges and juries would be tough on black offenders. But they aren’t.

One possibility is that this is a variation on what President Bush has called the “soft bigotry of low expectations.” It doesn’t seem that unusual to find that another black person has been murdered in the Milwaukee area. In 2005, for example, out of 122 murder victims in Milwaukee, 91 were black. (See page 7 of this report from the Fire and Police Commission.) Not surprisingly, the murders were clustered on Milwaukee’s North Side (see page 8).

Another theory notes that most murders of blacks occur in large cities. Large cities with large black populations may have Democratic prosecutors who are politically liberal and don’t like the death penalty, or the prosecutor (whatever his or her ideology) may not believe that a black jury will levy the death penalty. Finally, prosecutors’ offices in large cities may be “swamped” with work, and not look kindly on the super due process for the defendant that the death penalty requires.

Whatever the reason for the bias, the Rand findings show that there is no inherent racial bias in the death penalty. The key point may be that all decisions to seek the death penalty were reviewed at the highest levels of the Justice Department and thus a centralized review imposed consistency.

This might suggest that, at the state level, some central state authority should have more say over local decisions — either overturning decisions by local prosecutors to seek the death penalty or (probably more frequently) taking over the prosecution of murderers whom the local prosecutor is inclined to treat too leniently.