10 May 2005

DeathLaw - Race & Execution

The same statistics which come up every time also come up in Ohio: if you kill a white person you are more likely to get the death penalty than if you kill a black person. This has raised the usual calls for a moratorium.

This argument does raise the bias issue. The problem is that those who oppose the death penalty don't seem to realize that it doesn't help their argument.

I'm not a statistician, so I'll assume that every single other factor (such as the class of the victim, class of the accused, or locality) has been eliminated and the only element involved is race (a la the Baldus study) . "Death sentences were handed down in 18 percent of cases where the victims were white, compared with 8.5 percent of cases where victims were black."

If you're not outraged - or at the very least bothered - by that something's wrong with you. Those percentages show that the life of a murdered Black citizen is valued less than the life of a murdered White citizen.

But this is also the problem with making the anti-death penalty argument using these statistics. Those statistics call for an equalization in value. The argument that they should lead to fewer death penalty cases is an argument that the life of White citizens must be devalued. Some may make this argument but it's not a winner. It runs counter to the moral current to argue that a group of people must be devalued.

On the other hand, these statistics clearly point to a need to make our institutions (in particular our prosecutors) raise their valuation of the life of slain Black citizens. This requires that more people accused of killing Black citizens be subjected to the death penalty.

Nor is it a solid argument for abolishment of the death penalty. If memory serves me, it was Justice O'Connor who toyed with the anti-death penalty advocate in McCleskey v. Kemp by pointing out that his argument was a strong point in favor of taking discretion away from the prosecutors and requiring a death penalty prosecution for every single case which fell within certain parameters. And it is. The primary flaw in the system seems to be the prosecutors not pursuing cases evenly. If every single case which had more than one victim required a death penalty prosecution (as an example) it would solve this problem and all prosecutions would be based upon factors clearly not related to race.

Please find a better argument. This one only works for the true believers. They're not the ones who need convincing.

8 comments:

Patrick McKenzie said...

I agree totally. Another problem is that, for people who could go either way on the death penalty but think, say, "too many blacks are executed", greater protection for black victims is going to require greater penalties for black criminals since most of the former are killed by the latter.

Ken Lammers said...

A good point but I've not heard people claiming that too many Blacks are executed. I'm sure some have made the argument but the same dynamic you mentioned applies to Whites (as well as any other ethnic group). If more people are sentenced to death for killing a White citizen then more Whites are sentenced to death.

Some people would note that an increase in the number of Blacks being sentenced to death if the number of death sentences for murders involving Black victims were raised to the same level as those involving White victims. It would hit home with some but it's still not a strong argument. Appealing for lesser punishments for someone because of his race isn't going to get too far.

A. Zarkov said...

“I'm not a statistician, so I'll assume that every single other factor (such as the class of the victim, class of the accused, or locality) has been eliminated and the only element involved is race (a la the Baldus study) .”

I don’ see how you get to assume that unless you have seen the analysis. This is a problem in multidimensional contingency table analysis where you have layers that represent different factors. A more fundamental problem is the fact that we only have happenstance data, not designed experiments. With happenstance data you must get the correct model which means you have to know all the covariates.

There is a more obvious bias in the application of the death penalty-- the sex of the offender. How many women have been executed in the entire history of the US? Not many. Even in cases of extremely depraved crimes women somehow mange not to get executed. For example, the woman who drowned her two children in the trunk of her car because she thought her boyfriend didn’t like kids did not get the death penalty. I suspect we have executed less than 100 women since the union was formed. How many men? I suspect in excess of 10,000. You don’t statistics to see the overwhelming bias. So why get excited about a possible bias based on the race of the victim when we have a far greater bia.1 3ainst men?

Ken Lammers said...

I assumed that to eliminate other arguments and assume the best argument available in order to show that even in its best light it does not work.

You may be right; the Ohio statistics may not adjust for any number of factors. I don't know; the article didn't say.

The most famous of this type of study was the Baldus study which, according to my text book in law school, adjusted for all major factors such as class and gender and still showed a tendency to use the death penalty against those who kill Whites and not to with those who kill Blacks.

I admit to some skepticism of Baldus et al. However, I am not qualified to argue the point.

markm said...

Did the Baldus study control for the criminal record of the victim? I'd expect that more of the black victims were gangbangers, and I've no doubt that juries value the life of a gangbanger less and that the defense will therefore get the victim's record introduced. OTOH, letting the jury know that the killer was also a gangbanger is prohibited - and I doubt a jury would value the life of a gangbanger defendant much at all.

Ken Lammers said...

Baldus supposedly controlled for all major factors. When the trial judge asked the experts to change certain factors it made the statistical variance worse.

When it went to the Supreme Court, the Court (if I remember right) basically said that statistics couldn't carry the day.

Hippo said...

I was going to post about the inequality between the sentencing of men vs. women but A. Zarkov made the point much better than I could have. My son asked my about the woman who ran away from her wedding recently claiming that she had been kidnapped. I told him nothing would happen, lying to authorities is ok for women, in fact encouraged, it keeps the machinery of other rent seeking bueracracys in business, especially coppers and the domestic violence industry they love riding white horses.

Dr. H.O. Potamus

Mark Killpatrick said...

It's already been said, but the unequal application of a penalty, does not, I think, render it invalid.