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
 
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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).

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