The futile quest for racial neutrality in capital selection and the Eight Amendment argument for abolition based on unconscious racial discrimination.

• Author: Howe, Scott W.

TABLE OF CONTENTS INTRODUCTION I. CHARACTERISTICS OF POST-FURMAN CAPITAL SELECTION THAT PROMOTE THE INFLUENCE OF RACIAL BIAS A. Broad Applicability of Death Penalty B. Decentralized Decision Makers C. Prosecutorial Discretion D. Sentencer Discretion II. STATISTICAL EVIDENCE OF RACIAL DISCRIMINATION IN CAPITAL SELECTION A. The Baldus Study in Georgia B. Other Studies C. A Summary View III. ALTERNATIVE REGULATORY APPROACHES AND THE FATED FAILURE OF SUPREME COURT EFFORTS TO SECURE RACIAL NEUTRALITY IN CAPITAL SELECTION A. "Super Due Process" Regulation B. Mandatory Death Sentencing C. Forced Narrowing D. Mandated Near-Zero Disparity Outcomes IV. THE EIGHTH AMENDMENT ARGUMENT FOR ABOLITION BASED ON UNCONSCIOUS RACIAL DISCRIMINATION A. The Deserts Limitation on the Use of the Death Penalty B. Racial Discrimination as a Violation of the Deserts Limitation C. Justification for the Abolition Remedy CONCLUSION INTRODUCTION

The modern effort to regulate capital sentencing grew largely out of concerns about racial discrimination. (1) Since 1963, when three Justices dissented from the denial of certiorari in Rudolph v. Alabama, (2) through Furman v. Georgia (3) and beyond, the specter of racial prejudice animated the agenda for reform. (4) Efforts within the Supreme Court to promote racial neutrality in death sentencing coincided with larger efforts in the wake of the Brown v. Board of Education decision (5) to stem racial discrimination throughout public institutions. (6)

The quest in the capital sentencing context has failed, (7) although the primary concern has changed from race-of-defendant to race-of-victim discrimination. (8) Numerous studies conducted in many states indicate that a defendant is much less likely to receive a death sentence for the capital murder of a black victim than for the same murder of a white victim. (9) While the results vary with the study and the state, they reveal a widespread problem. The Supreme Court's post-Furman decisions on capital sentencing have done little to control the influence of unconscious racial biases. (10) Nonetheless, the Court largely abandoned further efforts toward a solution with its opinion in McCleskey v. Kemp, (11) in which it rejected claims based on a study that revealed a high risk that racial prejudice influenced capital selection in Georgia. (12)

The failure to pursue serious remedial actions (13) in the death-penalty arena has no easy explanation. (14) The federal government has made substantial efforts to limit racial discrimination in many areas, such as voting, housing, employment, and public education. (15) Some commentators have argued that the weak effort to remedy the racial disparities in the capital sentencing context is aberrational in light of these advances. (16) Although the Supreme Court has not been alone in failing to act, (17) a few commentators have even said that history will rank McCleskey with Dred Scott (18) as among the worst majority opinions in Supreme Court history. (19) Of course, some deny that the study supporting the challenge in McCleskey sufficiently established the influence of racial prejudice, (20) just as they deny that any statistical study can adequately prove racial discrimination in a context as complicated as capital selection. (21) Critics of the disparities commonly contend, however, that these views build on unrealistic demands for certainty. (22) Indeed, the accumulated research now strongly implies that unconscious racial bias influences capital selection on a widespread basis, a conclusion sufficient to raise questions about the lack of more serious remedial action. (23)

This Article asks what the Supreme Court might have done differently to achieve racial neutrality in capital selection, but concludes that the goal is unattainable as a practical matter, except through abolition. Many commentators who have criticized the Court for inaction have avoided the question of how to achieve racial neutrality. (24) Other critics have argued that states could attain racial neutrality, without seriously reducing levels of death sentencing, by employing monitoring systems grounded in sophisticated statistical techniques. (25) Likewise, Professor Randall Kennedy, who has written one of the more prominent scholarly criticisms of the disparities, has argued that states could actually "level-up," (26) meaning that they could increase the number of death sentences in racial categories where the sanction is less utilized, particularly black-on-black murders, while maintaining existing levels of death sentencing in other racial categories. (27) In contrast to these positions, I conclude that federal efforts to ensure racial neutrality in capital selection, other than through abolition, could succeed only by causing both a near meltdown in the use of capital punishment and an administrative morass for the federal courts. (28)

In light of this first conclusion, the Article also reexamines the Eighth Amendment argument that racial discrimination justifies abolition. The problem of racial prejudice informed the petitioners' Eighth Amendment arguments for abolition in Furman and its companion cases (29) and certainly influenced the Furman decision striking down capital punishment as it then existed. (30) All but two of the Justices in Furman rejected abolition, (31) however, and the Court subsequently has declared consistently that procedural safeguards can satisfy constitutional demands for nonarbitrariness in capital selection. (32) The racial-discrimination argument for Eighth Amendment abolition was never developed extensively and is now largely forgotten. (33)

This Article explains why the racial-discrimination problem should challenge prevailing thought about judicial abolition. The Eighth Amendment measure for when a punishment will be constitutionally banned focuses heavily on whether a societal consensus has developed against the sanction. (34) The argument against the death penalty faces difficulty under this test because many states still strongly support capital punishment. (35) The racial-discrimination argument, however, views the evidence of societal acceptance of capital punishment as itself molded by unconscious racial biases and denies that such evidence can be the measure of constitutionality. Instead, the racial-discrimination argument contemplates that the decision about abolition must confront the discrimination problem openly. According to this view, the appropriate question is whether the Supreme Court can implement and enforce measures to ensure that capital selection, even in the aggressive death-penalty states, will be essentially free of the influence of racial biases. This Article shows why that task is not feasible.

This Article also provides a larger theory about the Eighth Amendment to explain why racial discrimination in capital selection matters. The explanation builds on a deserts-limitation principle. The core restriction that the Eighth Amendment imposes on the use of capital punishment is that only offenders who deserve death should receive that sanction. (36) The Supreme Court's capital-sentencing doctrine builds on this principle, although the Court has usually avoided any suggestion that the Eighth Amendment speaks to the substantive standard that defines who is death eligible. The Court has stated that Furman and its progeny simply call for "reasonable consistency" or "nonarbitrariness" in the use of capital punishment. (37) This empty mandate has not been taken seriously even as a proscription against racial prejudice, perhaps in part because it does not clarify why unconscious racial bias should matter enough to reverse death sentences. After all, as commentators have frequently noted, murderers who deserve death do not deserve death any less simply because other similarly situated murderers are spared. (38) Yet, when the Eighth Amendment is understood to impose a deserts limitation on the use of capital punishment, it becomes clearer why unconscious racial discrimination matters greatly. If we recognize the capital-sentencing inquiry itself as an effort mandated by the Eighth Amendment to ensure that death-sentenced offenders deserve death, the evidence of racial discrimination reveals the pervasive inability of decision makers to determine deserts appropriately. The claim that those who receive death sentences deserve them no longer trumps concern about racial discrimination. (39)

This Article proceeds in four stages. Part I explains the central characteristics of post-Furman capital selection that promote the influence of racial bias. Part II summarizes the evidence that racial bias has continued to widely plague capital selection despite the Supreme Court's post-Furman efforts. Part III asks whether the Supreme Court should have pursued an alternative regulatory approach, but concludes that racial discrimination in capital selection is ineradicable by federal regulation except through methods that would cause both minimal use of capital punishment and an administrative nightmare for the federal courts. Part IV then develops the argument that unconscious racial prejudice in capital selection justifies judicial abolition. The Article concludes that the racial-discrimination problem can justify abolition under the Eighth Amendment.

1. CHARACTERISTICS OF POST-FURMAN CAPITAL SELECTION THAT PROMOTE THE INFLUENCE OF RACIAL BIAS

   Capital selection in the post-Furman era still lends itself to the influence of racial discrimination by decision makers who are almost all white. (40) Four factors play a central role: (1) the broad application of the death penalty to non-negligent homicide; (2) the decentralized decision making exercised by prosecutors and capital-sentencing juries; (3) the extreme deference that courts extend to prosecutors on basic matters such as charging and plea bargaining; and (4) the expansive discretion given to capital sentencers. This Part briefly explores how...