Deadly 'toxins': a National Empirical Study of Racial Bias and Future Dangerousness Determinations

• Publication year: 2021

Deadly 'Toxins': A National Empirical Study of Racial Bias and Future Dangerousness Determinations

Justin D. Levinson
University of Hawaii, Manoa, justinl@hawaii.edu

G. Ben Cohen
New Orleans District Attorney, bcohen@defendla.org

Koichi Hioki
Kyoto University, Graduate School of Management, kohioki@b.kobe-u.ac.jp

Deadly 'Toxins': A National Empirical Study of Racial Bias and Future Dangerousness Determinations

Cover Page Footnote
* Professor of Law & Director, Culture and Jury Project, University of Hawai'i at Manoa, William S. Richardson School of Law. The authors would like to thank Dean Camille Nelson for providing summer research support and Ciara Keamo for outstanding research assistance. à Chief of Appeals, New Orleans District Attorney. Formerly Of Counsel, The Promise of Justice Initiative. • Statistician. Adjunct Associate Professor, Kyoto University, Graduate School of Management. Formerly Assistant Professor, Kobe University School of Business Administration.

DEADLY "TOXINS": A NATIONAL EMPIRICAL STUDY OF RACIAL BIAS AND FUTURE DANGEROUSNESS DETERMINATIONS

Justin D. Levinson,^* G. Ben Cohen^? & Koichi Hioki^•

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Since the beginning of the modern Death Penalty Era, one of the most important—and fraught—areas of capital punishment has been the so-called "future dangerousness" determination, a threshold inquiry that literally rests the defendant's life or death on jurors' predictions of the future. An overwhelming majority of capital executions have occurred in jurisdictions that embrace the perceived legitimacy of the future dangerousness inquiry, despite its obvious flaws and potential connection to the age-old racial disparities that continue to plague capital punishment. This Article presents, and empirically tests, the hypothesis that jurors' future dangerousness assessments cannot be separated from their racial and ethnic biases held against Black and Latino defendants. It does so by examining two pathways whereby future dangerousness judgments may function in inappropriately racialized ways: First, it studies the domain of implicit bias and investigates, using Implicit Association Tests (IATs) we designed, whether jurors implicitly and automatically associate future danger with Black and Latino men, and conversely, associate future safety with White men. Second, it considers the domain of explicit bias and measures whether jurors' self-reported racial animus may function as a driving force in future dangerousness judgments. The results of the studies show that, indeed, both implicit and explicit biases

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are inexorably linked with future dangerous determinations. After presenting the studies in detail, the Article situates the findings within death penalty jurisprudence and concludes that future dangerousness can no longer pass constitutional muster as a mandatory or permissible factor in capital cases.

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Table of Contents

I. Introduction....................................................................229

II. Future Dangerousness: An Amorphous Prediction Takes on Increasing Importance................................234

A. CONSTITUTIONAL BACKGROUND AND THE BIRTH OF FUTURE DANGEROUSNESS........................................235
B. THE EXPANSION OF THE FUTURE DANGEROUSNESS INQUIRY...................................................................240
C. FUTURE DANGEROUSNESS BY THE NUMBERS............246
D. FUTURE DANGEROUSNESS IN THE HANDS OF THE JURY ................................................................................249
E. RACE, ETHNICITY, AND FUTURE DANGEROUSNESS .... 252

III. Investigating Implicit and Explicit Bias in the Criminal Justice System.............................................253

A. EMPIRICAL STUDIES OF RACE, BIAS, AND CAPITAL PUNISHMENT............................................................254
B. STUDIES OF IMPLICIT BIAS IN THE LEGAL CONTEXT .. 257
C. STEREOTYPES OF DANGER: RACE, ETHNICITY, AND THE MEASUREMENT OF BIAS............................................264

1. Black Men and Stereotypes of Danger.............265
2. Latino Men and Stereotypes of Danger............268

IV. The Empirical Studies..................................................272

A. METHODS AND MATERIALS........................................272

1. Mock Juror Participants..................................272
2. The Future Dangerousness IAT and the Race Stereotype IAT................................................... 273
3. Explicit Bias......................................................274
4. Crime Vignettes.................................................275

B. HYPOTHESES............................................................278
C. STATISTICS...............................................................279

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D. RESULTS...................................................................280

1. Strong Negative Stereotypes About Black Americans.........................................................280
2. Black Men: Implicit Future Dangers...............281
3. Latino Men: Implicit Future Dangers..............281
4. Implicit and Explicit Biases Predict Future Dangerousness and Life/Death.......................283
5. Limited to No Effects Based on Defendant Name ..........................................................................284
6. Death Qualified Jurors and Explicit Racial Bias ..........................................................................285

V. The Future of Future Dangerousness.......................286

A. CONSTITUTIONALITY OF THE FUTURE DANGEROUSNESS INQUIRY...................................................................287
B. BIASED JURIES: THE PROCESS OF DEATH QUALIFICATION ................................................................................290
C. IMPLICIT BIAS AND FUTURE DANGEROUSNESS OF LATINO MEN.............................................................293
D. FUTURE DANGEROUSNESS BEYOND THE DEATH PENALTY..................................................................294

VI. Conclusion....................................................................296

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I. Introduction

At his capital murder trial, Duane Buck looked on from the defense table as an expert witness testified that Mr. Buck was likely to be a future danger to society simply because he was Black.¹ In the wake of that racialized testimony, a jury sentenced Mr. Buck to death, sending him to Texas's death row, where he waited on appeals for more than two decades.² In 2017, the Supreme Court finally recognized the improper use of the future dangerousness testimony and overturned Mr. Buck's death sentence.³ Chief Justice John Roberts, who authored the Court's majority opinion, explained that, at least in the context of racial bias and the death penalty, "[s]ome toxins can be deadly in small doses."⁴ Although Mr. Buck

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received a reprieve from death row,⁵ the Court did not address a more pressing question arising from the disproportionate numbers of Black and Latino men who remain on death row: Is future dangerousness testimony, a staple of so many death penalty verdicts, so inexorably tainted with racial bias that its very use violates the Constitution?

For decades, facing study after study that revealed continuing and pervasive racial inequalities in capital punishment,⁶ scholars and practitioners have argued that juror judgments of a defendant's future dangerousness may well be tainted by harmful racial stereotypes.⁷ Yet despite the clarity of the critique, the role of the

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future dangerousness determination in capital punishment remains prevalent and powerful in many jurisdictions, including in the federal death penalty, where a majority of capital convictions continue to include a jury finding of future dangerousness.⁸ Scholars have taken sharp aim at the role of future dangerousness determinations, noting that jury predictions vastly over-include non-dangerous individuals,⁹ and, as Professor Lee Kovarsky

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observed in 2019, are "exceptionally unreliable" in a multiplicity of ways.¹⁰ Nonetheless, race-based legal challenges to the death penalty, and future dangerousness in particular, continue to stall,¹¹ and there remains a striking lack of empirical work examining the role of racial bias in future dangerousness determinations.

In Buck, the Court reversed the death sentence because the explicit reference to race introduced a visible poison into the death penalty process.¹² But what if the concept of future dangerousness

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is always tied toxically to race, even when it is not visible and explicit? Juror judgments of future dangerousness play a prominent role in capital punishment cases, especially in separating those who receive prison sentences from those who are executed when the jurisprudence limits application of the death penalty to the "worst of the worst."¹³ Although there are various paths that juries can take to arrive at a death verdict, our analysis indicates that a disproportionate number of defendants who have been sentenced to death—and those who have been executed—have been found by juries to be future dangers.¹⁴ Indeed, while the broad death penalty trajectory in the United States has been in decline,¹⁵ the influence of the future dangerousness determination has grown in paramount ways.

This Article presents, and empirically tests, the hypothesis that jurors' future dangerousness assessments cannot be separated from their racial and ethnic biases held against Black and Latino defendants. It does so by examining two pathways whereby dangerousness judgments may function in inappropriately racialized ways: First, it studies the domain of implicit bias and investigates, using Implicit Association Tests (IATs)¹⁶ that we designed, whether jurors implicitly and automatically associate future dangerousness with Black and Latino men, and conversely, associate future safety with White men. Second, it considers the domain of explicit bias and measures whether jurors'...