Affirmative Action applied to the Death Penalty?
January 7, 2003 4:27 PM   Subscribe

A report commissioned by outgoing Maryland governor Parris Glendening has found interesting racial disparities in the death penalty: although it appears the race of the defendant is irrelevant individually in the application of capital punishment, such is is not the case when one weighs in the race of the victim of a crime, in which the killing of a white person by a black person nearly doubles the likelihood of the defendant receiving the death penalty, "primarily because they are substantially more likely to be charged by the state's attorney with a capital offense."
posted by XQUZYPHYR (33 comments total)
Sounds like a problem with the State's Attorney Office.
posted by stbalbach at 4:34 PM on January 7, 2003

When I see these studies, I am always left with a question which the studies tend to leave unanswered. Do prosecutors go to capital offense more often in black-on-white murders because there is some underlying belief that white lives are more valuable or because of the nature of the circumstances in which black-on-black murders occur?
posted by Dreama at 5:30 PM on January 7, 2003

Dreama, from the article:

Paternoster studied 6,000 murder cases between 1978, when the state reinstated a death penalty statute, and the present. Paternoster sifted through police reports, case files, autopsy reports and other records. Researchers evaluated 250 factors, such as the racial characteristics of the victim and how the crimes were committed.

Decisions by prosecutors in the early stages of cases varied dramatically between jurisdictions. In Baltimore County, for example, State's Attorney Sandra O'Connor pursues the death penalty in all eligible cases to avoid any allegations of bias -- even though the county had considerably fewer death-eligible cases than jurisdictions such as the city of Baltimore.
posted by XQUZYPHYR at 5:40 PM on January 7, 2003

But who cares if the accused is black or white ? It's death penality that's completely WRONG, no matter the skin color. The reasoning behind this statement is very simple:

a) there could be a judgment error (intentional or not intentional) , somebody not really guilty could be killed.

b) you can't repair this error: once dead, dead forever.
posted by elpapacito at 6:17 PM on January 7, 2003

elpapacito, you can say the same thing about putting people in prison. Someone not really Guilty can be imprisoned, and while death is permanent, if you got locked up for twenty years and then they found you were innocent you don't get those twenty years back. They just let you go.
posted by stifford at 6:55 PM on January 7, 2003

I don't have a reference to back this up, but according to Columbia University professor Kim Crenshaw, disparities in rape prosecutions also correspond to the race of the victim rather than the race of the accused rapist.
posted by alms at 8:10 PM on January 7, 2003

Being a rather liberal individual, I must nonetheless point out that this is (by liberal theory) what's supposed to happen -- at least according to the logic of hate crime legislation. After all, crimes are (apparently) more heinous when the victim is of another race.

I mean...isn't it more disturbing to the community, more likely to be the result of a group-oriented dehumanization, more unamerican, more evil when the sin crosses racial lines?

At least, that's what I've heard...

It also rather pains me to point out the demographic argument, that as our society is still not entirely integrated individuals remain more likely to know people of their own race rather than those of other races. That means interracial homicide is much more likely to be against those with no prior relationship -- and as the sniper event showed, people are terrified of random people harming them for no particular reason, because though we can manage our relationships with those we know (and cut them off should they turn dangerous), we can never manage our relationships with those who we've never known.

That duty is left to the government.

So greater rates of interracial death penalties make a decent amount of sense, from both the liberal point of view (group harm is worst harm) and from a moderately psychological view (those that cause the greatest fear deserve the greatest penalty).

I'd be interested to know whether white-on-white or black-on-black homicide tend to receive greater sentences. Anyone know?

Yours Truly,

Dan Kaminsky
DoxPara Research
posted by effugas at 8:37 PM on January 7, 2003

They just let you go.

And likely give you a cheque, too (if you can prove there was a miscarriage of justice or something). But the point is that there's still a living person to be set free, there's still someone around to try and make amends to. Outside of the moral issues I have with the death penalty, the criminal justice system is just too subject to error to risk killing innocent people. It's hardly surprising that there's yet more evidence that the death penalty is meted out capriciously, but the more there is, the more likely it is that eventually it will be seen as the barbaric thing that it is, and thrown out.

...isn't it more disturbing to the community, more likely to be the result of a group-oriented dehumanization, more unamerican, more evil when the sin crosses racial lines?

Ack. I should bloody well hope not. Crime is just bad, m'kay? Not all crimes involving people of different races have anything at all to do with race. If inter-racial murder was given the death penalty in an equal manner between white and black convicts, the above might hold some water (just maybe), but if blacks who kill whites are nearly twice as likely to die for the murder (as seems to be the case), then all that's happening here is yet more institutionalised racism.
posted by biscotti at 8:47 PM on January 7, 2003

I first researched the death penalty in depth around eight years ago, and was stunned by what I found. The connections between race and the death penalty are so outrageous when explored that they make any sort of moral discussion unnecessary when considering whether the practice should be continued. In short, the death penalty as implemented in America is racially biased. Studies by scholars and by governmental agencies have both supported this assertion.

In New Jersey (PDF):
"There is unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving killers of African-American victims," the report states.

In North Carolina:
The study, based on data collected from court records of 502 murder cases from 1993 to 1997, found that race plays a significant role in who gets the death penalty. Prof. Jack Boger and Dr. Isaac Unah of the University of North Carolina found that defendants whose victims are white are 3.5 times more likely to be sentenced to death than those with non-white victims.

And in the rest of the country. Read about Amnesty International's campaign and what the ACLU has to say. Or do some Google research in some of the 175,000 results returned in this query.

In response to Dan Kaminsky, this quote from the ACLU speaks directly to your statements:
"While white victims account for approximately one-half of all murder victims, 83 % of all Capital cases involve white victims. Furthermore, as of May 2001, eleven people have been executed where the defendant was white and the murder victim black, compared with 162 black defendants executed for interracial murders with white victims."
posted by VulcanMike at 8:55 PM on January 7, 2003

effugas, the problem with your dissecting the "logic of hate-crime legislation" is that I don't think you know what it is. A black person killing a white person and vice-versa does not automatically make the murder a hate crime, regardless of what that episode of South Park said. Hate crime is the additional heniousness of choosing a victim specifically because of their race, religion, or sexual preference. Hate is a motive, not an instant win bonus.
posted by XQUZYPHYR at 11:05 PM on January 7, 2003


Part of the logic is the arbitrarity described -- "This person didn't have anything to do with you, and you killed him just because of his race! It wasn't his money, it wasn't his car, it wasn't what he knew about you, it wasn't what he was doing with your girl -- it was his race!"

Since we've all got a race, we're all potentially a threat to *somebody* motivated by hate. That's what makes hate so threatening to a social fabric -- it makes everyone of another race a threat, and guess what gets done in the case of potential threats...

Hate's a viral motive -- it infects the hated, in the name of self defense. I understand quite well why hate crime legislation is important. But don't kid yourself with fine distinctions between "automaticity" and "specific motive". The *crime* may be innocent until proven guilty, but the "added heinousness" is very much guilty until proven innocent. After all, the facts are the flesh of a murderer vs. the flesh of the murdered...takes quite a rebuttal from quite the untrusted source.

Hell, what's the only defense against being labelled a racist, a homophobe, or an anti-semite? "One of my best friends is a Mexican Gay Jew!" True or not, it's a few steps above "nuh-uh", but not by much.

Vulcan, nice statistic there. I note with dismay (again, I'm a liberal here, and generally a massive supporter of these guys) the ACLU has been rather creative with their numbers. Are there an equal number of cases with white defendants, black victims, as there are black defendants, white victims? Do the cases themselves involve equivalent special circumstances?

At the end of the day, I have this sense that hate crime legislation is a necessary addition to our legal fabric -- but that an unavoidable side effect is harsher penalties for all interracial crime, even if the person is not "specifically chosen" for one of their protected categories.

To go off on a small tangent, I think at least some of the energy spent fighting the death penalty is a bit misplaced. If we are to seek justice, should we not seek justice for all -- not simply the few whose penalty is so myopically convenient that we recognize the permanence of it? A twenty year sentence is just as emasculating as death itself -- indeed, a recent ruling denied a man with a life sentence the right to procreate, ever.

For God's sake, there's a hell of alot more people in prison to worry about than the deeply investigated (and I guess sexier to save) few who won't be there much longer. I wager more people die in prison every year than are executed. I can imagine a time when more Americans receive prison benefits than social security checks. This is what I worry about.

YMMV, though.

posted by effugas at 12:52 AM on January 8, 2003

I have this sense that hate crime legislation is a necessary addition to our legal fabric

YEEAAUGH! *tears hair and gnashes teeh, swearing under breath*

The term "hate crime" is a meaningless abomination, and an affront to justice and common sense. A crime is a crime, and the feelings of its perpetrator bear not a whit of significance to the crime itself. I suppose then, that "love crime" legislation is required too?

If I take your wallet, I am guilty of theft. If I take your wallet while mumbling "I hate you", does the severity of the theft increase? Of course not. If you are wearing a hat, and I "hate" hats, does my taking your wallet make it a "hate crime"? Come on.

The death penalty is a last resort, and comes after years of trials and appeals. Every benefit of doubt is given to convicts, and when they are indeed sentenced and dispatched for their barbarity, civilization everywhere applauds.
posted by hama7 at 1:31 AM on January 8, 2003


Funny, I *completely* agreed with you.

Like, I agreed with you yesterday. And today. Up until I started replying to this story.

Then I thought about hate crime, and the D.C. Sniper. That's when the Uh-Oh hit.

Love crime is painful, but there's a finite number of people who love you. Random crime is even more painful, but there's a finite number of people who would have any motivation to commit it -- and a finite amount of time before the perpetrator, generally, is caught.

And then it's over.

Hate crime is problematic. There are potentially millions, maybe hundreds of millions of people who might hate you for your skin, for your sexuality, for your faith. This is the real world, where statistics can go screw themselves and flying drops significantly after a plane crash -- hate crime takes all those hundreds of millions of people and makes them THREATS.

When the D.C. Sniper hit, literally millions of individuals altered their living habits -- walked zigzagged, didn't go out unless absolutely necessary, jumped at the slightest noise.

It's strange, hama. We may be horrified by murder, but we are infinitely comforted by the fact that it couldn't happen to us -- nobody we know would hurt us so, for nobody would have any reason to. Both random violence and hate driven violence defy the former, but hate denies the latter -- it makes some arbitrary characteristic of ours a potential reason for harm to come upon us.

There's no limit to the number of unique characteristics that could bring harm -- one day, somebody could start tracking down B+ blood types and start beating them senseless. But if this were to happen, B+'s might worry, but only in the region where the psychotic criminal was striking. Seriously, who hates B+ blood? I can't even imagine what somebody like that would look like...

So I can't imagine who to fear.

Race isn't like that. Someone can imagine, and recognize, exactly who to fear, given only a plane-crash like event of a hate crime. Someone can act accordingly. Someone can act...pre-emptively.

It's viral; thus, it's different.

See, Hate Crime tells those who survive that They May Be Next -- and unlike the sniper, you can't *catch* the one crazy guy committing random acts of terror, and soothe the entire population.

The fear dissipates, just as people fly again. But it takes time, and it exacts its cost. The punishment must fit the crime, and the crime is worse.

I don't know what to say. A Metafilter article changed my opinions. At the end of the day, hate crime differentiates itself by the following curse: It's Not Over Yet.

posted by effugas at 2:36 AM on January 8, 2003

Then I thought about hate crime, and the D.C. Sniper.

The D.C. sniper was a peculiar exception to everyone's *profiling*, although that it has been deemed a "hate crime" is news to me. In fact, though it was carried out by a Muslim extremist and his lackey, and does fit the "hate crime" mold, I think calling it a "hate crime" rather than premeditated murder is a travesty, but why haven't the "hate crime" advocates commented?

Those freaks are killers, and who they hate makes no difference. That they are warped psychotic hateful neanderthals makes no difference, and shouldn't influence the fact that they're killers, and society is safer without them.

Personally, (check my profile for pictures) the anti-American sentiment thanks to a left-wing government has spawned assaults, crimes, and rudeness against all foreigners in Korea, be they English, Aussie, or New Zealander. Are they "hate crimes"? No way! Are they are punishable as assaults and crimes according to their severity? Of course! The feelings of the perpetrators are inconsequential, their crimes are not.
posted by hama7 at 3:13 AM on January 8, 2003

The feelings of the perpetrators are inconsequential, their crimes are not.

haven't we been through this before? the difference between murder and manslaughter is based on "feeling". motive is tremendously important - very few people consider the decision of a family, after much difficult deliberation and heart-searching, so turn off life support for a relative that will never recover, as an equal crime to one in which a black man is towed behing a car until dead because he dated a white woman. obviously those examples are extreme, but - as far as i can tell - there's no magic middle area where all crimes are suddenly equal.
posted by andrew cooke at 5:14 AM on January 8, 2003

The D.C. sniper was a peculiar exception to everyone's *profiling*

In terms of serial killers, the effect was amplified -- many millions more changed their habits, as many millions more matched the profile of the targets (which were random, and widely dispersed) -- but it was always about *The* Sniper. Nobody knew what the guy looked like, so nobody knew to fear any particular group. Managing fears across the eastern seaboard that this was a terrorist siege remains one of the great uncelebrated successes of the media's work post 9/11.

I cannot imagine how much retaliatory hate crime would have occurred if it was publically whispered that a middle eastern terrorist was set loose, and WE CAN'T FIND HIM..."can you?"

The DC Sniper was a freakish occurance, thankfully, but the response to him was quite similar to what seems to happen with all communities attacked by a serial killer. 8 murders in a day isn't big news. 8 murders in six months by the same person, who didn't know any of the targets -- and everyone within some radius goes into self-protection mode.

Fight or flight. If you have no idea what to fight, you run. If you have the vaguest of notions..."shoot 'em all, let God sort 'em out" becomes a scarily available option.

English, Aussie, New Zealander...well, yes. By my definition, they're certainly hate crimes. Members of a large group that may be easily identified by some other large group are attacked -- as individuals -- for no other reason than their membership. Though there are many who would never dream to commit such assault, the preponderance of these actions cause all of the attacking group -- even those peaceful individuals -- to become suspect; should the attacks reach a breaking point, the hunted end up striking back, usually at the weakest element of the hunter group -- i.e. the peaceful ones.

Civil wars start over hate; I know of only one war fought over love.

Andrew --

Motive matters, but so too does effect. If gross negligence directly causes multiple deaths, you had no motive at all -- but the damage has been done.

posted by effugas at 6:02 AM on January 8, 2003

The DC snipers wouldn't fit any statutory definition of "hate crime" of which I am aware. They killed old and young, men and women, black and white. Random psychopathic killing does not a "hate crime" make.
posted by MattD at 8:22 AM on January 8, 2003

Rather than demonstrating racial bias, all this Maryland study shows is that heavily minority prosecuting jurisdictions (with heavily minority victims) tend to seek or impose the death penalty, less often than heavily white jurisdcitions (with heavily white victims).

Surely the decision of one jurisdiction to be lax or permissive in prosecuting murders should not require prosecutors of another jurisdiction to be similarly lax or permissive. Citizens of each jurisdiction have a right to determine their own standards, and apply them freely so long as they are not applied with bias in that jurisdiction. There is, of course, valid concern when the same jurisdiction would seek the death penalty differentially against offenders who have comparable criminal histories and who have committed murders which are comparable but for the victims' race.
posted by MattD at 8:48 AM on January 8, 2003

...when they are indeed sentenced and dispatched for their barbarity, civilization everywhere applauds.

Erm...define "civilization", and while you're at it, define "everywhere".
posted by biscotti at 9:35 AM on January 8, 2003

Uh huh...
posted by y2karl at 9:42 AM on January 8, 2003

The findings of the Glendening report dovetail with what's been the consensus of most criminologists for about 20 years or so. The most exhaustive effort to detect statistical evidence of racial bias in the death penalty came when Professor David Baldus conducted a study on behalf of the defendant in the McClesky v. Kemp Supreme Court case. Baldus found that the race of the defendant did not matter as much the race of the victim in determining the outcome of death penalty cases. The problem with introducing this evidence in court cases is that the proper method of "remedy" is unclear. Most of these statistical arguments are used to argue against the death penalty, but death penalty advocates could just as easily argue that it is possible to both maintain the death penalty and eliminate racial bias by "rationalizing" the penalty phase of capital cases. (In fact, this was an argument Sandra Day O'Connor made while questioning the defendant's attorneys in the McCleskey case.) In other words, while I am sympathetic to the racial disparities argument, I think it is ineffective, because a racially "balanced" death penalty can be equally as unjust as a death penalty system with racial disparities.

I'm also unsure about the causal mechanism that produces the racial disparities. Since the racial disparities are more affected by the race of the victim than the defendant, the disparities may be influenced by the greater pressure that white victim's families place on prosecutors than black victim's families in addition to the fact that opinion polls show that blacks consistently support the death penalty less than whites (pdf file). In other words, the disparities may not be evidence of prosecutorial racism, but of the different preferences that blacks and whites have about the death penalty. Any time you have two groups and one group supports the death penalty much more than the other. People who murder members of the more pro-death-penalty group will face a greater chance of getting death sentences, regardless of any bias or malice by prosecutors.
posted by jonp72 at 12:05 PM on January 8, 2003

there's no magic middle area where all crimes are suddenly equal.

Quite true, but "hate crime" is political gibberish, and prtects a subset of people who are "more equal" than others. That's the difference.

Increasing "Hate Crime" Punishment Violates American Principles

What Makes A Crime Of Prejudice Worse Than Any Other Crime?

posted by hama7 at 3:44 PM on January 8, 2003

I'm also unsure about the causal mechanism that produces the racial disparities.

That does sound puzzling!

Is it impossible to imagine that death-row inmates have actually committed the crimes for which they are accused?
posted by hama7 at 3:54 PM on January 8, 2003

On second thought, the solution to this quandary is: Death Row Quotas!
posted by hama7 at 4:08 PM on January 8, 2003

After all, many crimes carry heavier penalties under what are known as "aggravating circumstances." It's universally considered far worse to rape or kill a child than an adult, and nobody on the right complains when legislators decree harsher punishment for those offenses.

A Silent Wind Blows... Conservatives Seem To Have Nothing Ot Say When It Comes To Racism, and White Supremacists

Hate in America (American Sociological Association)

Amensty International: Killing With Prejudice - Race and the Death Penalty in the United States
posted by y2karl at 7:40 PM on January 8, 2003

Ah Hah! I knew the Nazi comparisons would be along any minute. "Hate crime" is nonsense, no matter how many links to the KKK can be cut and pasted.

Racists don't deserve comment. Nazis and white supremacists have not once been mentioned except by Guess Who? And hate-crime legislation has exactly zero to do with lynching, but hilarious attempt to make Big Scary Accusations.

If by "lynching" you mean "hanging" as in swift, inexpensive dispatch of convicted death-row inmates, then, by all means, save the electricity.

No response to Death row Quotas? That seems like liberal logic to me. So does screaming "racist" at the very groups "hate crime" legislation seems to be in favor of protecting. Familiar, but odd, nonetheless.
posted by hama7 at 11:46 PM on January 8, 2003

I think effugas' argument about the diffuse effect of hate crime is sound, but his DC sniper example is unfortunate. Perhaps hama7 will be more swayed by actual examples of Americans being targeted for violent crimes because of their race or ethnicity. For all people of the targeted ethnicity, the question must arise of whether they can ever again feel safe among the general populace, if usually hidden racist sentiments can surface against them at any time in the form of robbery, assault, or murder. This is the aggravating circumstance that justifies a harsher punishment.
posted by skoosh at 4:55 AM on January 9, 2003


Is your objection to "hate crime" one which suggests that no new legislation is needed to separate crimes into categories by motive or that crimes can not be distiguished by motivation? i.e. hate as a motivation being as irrelevant as the "crime of passion".

If the former, I say bravo; if the latter, I say stop being so pedantic.
posted by Dick Paris at 6:57 AM on January 9, 2003

Ah Hah! I knew the Nazi comparisons would be along any minute.

Oh, do blow it out your ass. You're the one who posted an article clamoring about how hate-crime laws will lead to a "totalitarian destruction of free speech."

Also, it appears as though you're making the common fallacy of opposition to hate-crime laws in which you apparently believe that the laws only "protect" minorities. Once again: hate-crime laws are the establishment of additional severity when the significant factor of the motive is bias against a specific group, be it white people, Asian people, straight people, and anyother group that seems to dominate the complaints about how hard their lives are because people are extra-upset with them when they, you know, kill people.

And how in your right mind can you say racists and white supremacists aren't part of this debate? The fact that these people exist and that legislators in many areas of the country are lame to trying to stifle their dangerous ability is the very reason that hate-crime laws and its respective dialogue exists.

Instead, the main argument of people here who oppose hate-crime laws are tripping over the remnants of their own group circle-jerk over their sudden fawning admiration for gag-worthy phrases like "aren't ALL crimes bad?" and "aren't ALL crimes hate crimes? [Bambi enters through window in background]"
posted by XQUZYPHYR at 8:57 AM on January 9, 2003

Is your objection to "hate crime" one which suggests that no new legislation is needed to separate crimes into categories by motive

Yes. Absolutely
posted by hama7 at 11:45 PM on January 10, 2003

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