A Tribute to David Baldus, a Determined and Relentless Champion of Doing Justice

• Author: William J. Bowers
• Position: Principal Investigator for the Capital Jury Project ('CJP'); Principal Research Scientist in the School of Criminal Justice, University at Albany, formerly at Northeastern University
• Pages: 1879-1904

1879

A Tribute to David Baldus, a Determined

and Relentless Champion of Doing Justice

William J. Bowers

I. INTRODUCTION .................................................................................... 1880

II. MY EVOLVING RESEARCH ON RACIAL BIAS AND THE ABSENCE OF

DETERRENCE ........................................................................................ 1880

A. FINDING HISTORICAL EVIDENCE OF RACIAL BIAS IN EXECUTIONS ...... 1880

B. RESPONDING TO FURMAN V. GEORGIA ........................................... 1881

C. MY INITIAL CONTACT WITH DAVID BALDUS AND THE QUESTION OF

DETERRENCE .................................................................................. 1883

D. MY RETURN TO THE ISSUE OF RACIAL BIAS ...................................... 1885

III. DAVID BALDUS AND THE SHOWDOWN OVER RACIAL BIAS .................... 1889

A. THE PROCEDURAL REFORM STUDY AND THE CHARGING AND

SENTENCING STUDY ........................................................................ 1889

B. MCCLESKEY AND THE BALDUS RESEARCH ....................................... 1890

IV. THE CAPITAL JURY PROJECT (CJP) ...................................................... 1893

A. HOW THE CJP TOOK SHAPE ............................................................ 1893

B. FINDINGS OF THE CJP ..................................................................... 1896

1. Premature Punishment Decision-Making .......................... 1897

2. Failure to Understand Sentencing Instructions ................ 1897

3. Belief that the Law Required Death for Certain Kinds of

Crimes or Defendants .......................................................... 1898

4. Evasion of Punishment Responsibility ................................ 1898

5. Underestimation of the Death Penalty Alternative ........... 1898

6. Pro-Death Predisposition of Jurors ..................................... 1899

7. Racial Bias in Jurors’ Sentencing Decisions ....................... 1899

C. IMPLICATIONS OF CJP FINDINGS FOR CAPITAL LITIGATION ............... 1900

V. THE INSPIRATION DAVID PROVIDED .................................................... 1902

 Principal Investigator for the Capital Jury Project (“CJP”); Principal Research Scientist

in the School of Criminal Justice, University at Albany, formerly at Northeastern University. I

wish to thank Gail Agrawal, Eric Andersen, and Emily Hughes for convening the October 20,

2011 tribute to David Baldus at the Iowa Law School, for inviting me to participate in it, and for

inviting me to contribute this statement of tribute to David for pu blication in this special issue

of the Iowa Law Review.

1880 IOWA LAW REVIEW [Vol. 97:1879

I. INTRODUCTION

David Baldus was a remarkable man who I came to respect and admire

both personally and for his contributions as a legal scholar and empirical

researcher. His groundbreaking study of racial bias in the administration of the

death penalty under Georgia’s post-Furman capital statutes should have ended

capital punishment in America. It brought the U.S. Supreme Court within one

vote of such a decision, a vote that Justice Powell upon reflection said he

should have cast. That is to say, David’s pioneering study presented in McCleskey

v. Kemp should have been the basis for a landmark Supreme Court decision

ruling capital punishment unconstitutional. The fact that he came so close

without achieving this victory over injustice adds an element of sadness to this

tribute for me.

In this festschrift for David and his work, we have been invited to relate

not only our appreciation for him and his work, but also especially how he

influenced and contributed to our own research efforts. I n my case, this was a

pattern of give and take that brought us closer together as colleagues and

friends over a period of four decades. In my mind, the best way to tell this story

is chronologically. I first outline the development of my own interest, focusing

on the issues of racial bias and deterrence in capital punishment and how they

dovetailed with David’s concerns with these same matters. I then lay out David’s

pioneering contribution to research on racial bias that materialized in his study

of capital cases under the Georgia statute and worked its way up to the U.S.

Supreme Court in McCleskey v. Kemp.1 I then turn to how David’s work in

McCleskey and the Court’s reaction to it shaped my long-term and continuing

death penalty research commitment, namely, the Capital Jury Project (“CJP”). I

end this account with some words of appreciation for David’s con tributions

and his friendship.

II. MY EVOLVING RESEARCH ON RACIAL BIAS AND THE ABSENCE OF

DETERRENCE

A. FINDING HISTORICAL EVIDENCE OF RACIAL BIAS IN EXECUTIONS

In January 1972, I sent a graduate research assistant to the library to look

for historical data on executions. She came back with a portion of the

congressional record that listed several thousand persons executed under state

authority since 1864. The listing, which encompassed the states from Alabama

through Louisiana, had the condemned person’s name, race, age, date of

execution, crime, county of prosecution, and any appeals. On the very first

page for Alabama, it was astonishing to see how almost unbroken the string of

“N’s” for Negro was in the column that showed the race of the condemned.

This was the first half or so of an inventory of almost six thousand executions

imposed in the prisons of some eighteen states since the Civil War. It was

1. McCleskey v. Kemp, 481 U.S. 279 (1987).