The Racial Geography of the Federal Death Penalty

• Publication year: 2021

THE RACIAL GEOGRAPHY OF THE FEDERAL DEATH PENALTY

G. Ben Cohen(fn*) and Robert J. Smith(fn**)

Abstract: Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers-a discussion begun well before the founding of our Constitution-continues to have relevance today. This Article documents the historical and racial relationships between place and the ability to seat an impartial jury. We then discuss the unique impact demographic shifts in the jury pool have on death penalty decision making. Finally, we propose three possible solutions: (1) a simple, democracy-enhancing fix through a return to the historical conception of the county as the place of vicinage in federal capital trials; (2) a Batson-type three-step process for rooting out the influence of race on the decision to prosecute federally; and/or (3) voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of a fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

INTRODUCTION................................................................................427

I. BLACKS ARE DISPROPORTIONATELY IMPACTED BY FEDERAL DEATH PENALTY PROSECUTION, ESPECIALLY IN COUNTIES DEMOGRAPHICALLY DIFFERENT FROM THE SURROUNDING FEDERAL DISTRICT......................................................................................433

II. COUNTY-LEVEL JURIES, AS OPPOSED TO JURIES DRAWN FROM THE ENTIRE FEDERAL DISTRICT, MAINTAIN THE LINK BETWEEN COMMUNITY VALUES AND THE IMPOSITION OF CAPITAL PUNISHMENT...........437

A.Historically, the Link Between the Sentencing Jury and the County of the Offense Was an Essential Component of the Fair Trial Guarantee ................................................... 437

B.Shifting Demographics Have Transformed the Expanded Venire from a Shield Against Racism Into a Trap that Exploits It ............................................................................. 443

III. DISTRICTS WITH THE HIGHEST DEATH SENTENCING RATES TEND TO BE COMPRISED OF A LARGELY BLACK COUNTY SURROUNDED BY LARGELY WHITE COUNTIES....................................................................................445

A.Orleans Parish (New Orleans) and the Eastern District of Louisiana..............................................................................446

B.St. Louis, Missouri and the Eastern District of Missouri.....450

C.Richmond and the Eastern District of Virginia....................454

D.Prince George's County and the District of Maryland.........458

IV.DOES JUROR RACE MATTER?.................................................462

A.The United States Supreme Court Is Divided Over Whether Juror Race Impacts Jury Deliberations..................462

B.Practical Evidence from Federal Death Penalty Authorization Data Suggests that Juror Race Does Matter .. 464

C.Attorneys Know that Juror Race Does Matter ..................... 467

D.Experimental Evidence Suggests that Both Jury Composition and Juror Race Mediate Verdict Outcomes .... 470

V.WHAT COMMUNITY-WHO IS MY NEIGHBOR?.................475

A.Respect for Political Subdivisions........................................ 478

B.Shared Political Affiliation .................................................. 480

C.Socio-Economic Status........................................................482

VI.FINDING REMEDIES AFTER MCKLESKEY, ARMSTRONG, AND BASS.....................................................................................484

A.The Challenges of McKleskey, Armstrong, and Bass...........484

B.Prospective Remedies Can Reduce the Impact of Race in the Administration of the Federal Death Penalty, Without Dismantling the Entire System............................................. 487

CONCLUSION....................................................................................490

INTRODUCTION

"I can't help but be both personally and professionally disturbed by the numbers that we discuss today . . . . [N]o one reading this [Department of Justice] report [on race and the federal death penalty] can help but be disturbed, troubled, by this [racial and ethnic] disparity."

- [Deputy] Attorney General Eric Holder(fn1)

"The truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours'"

- Blackstone(fn2)

"And, behold, a certain lawyer stood up, and tempted him, saying, Master, what shall I do to inherit eternal life? He said unto him, What is written in the law? how readest thou? And he answering said, Thou shalt love . . . thy neighbour as thyself. And he said unto him, Thou hast answered right: this do, and thou shalt live. But he, willing to justify himself, said unto Jesus, And who is my neighbour??"

- Luke 10:25-29(fn3)

The United States Supreme Court's elaborate capital punishment jurisprudence is designed to ensure that capital trials are endowed with legitimacy,(fn4) that only the most culpable murderers with the least mitigation receive a death sentence,(fn5) and that the sentence is not bestowed upon the innocent.(fn6) But the jurisprudence-or at least its collective goal of avoiding the imposition of arbitrary death sentences- has not been altogether satisfactory.(fn7) Problems in the administration of the federal death penalty are illustrative.

Race-based arbitrariness threatens the fair administration of the death penalty.(fn8) Blacks and other minority group members are over-represented on death rows across the country.(fn9) Statistics suggest that defendants are more likely to be sentenced to death for killing a white victim than a black victim.(fn10) Blacks are also executed disproportionately-and have been since 1976.(fn11) Again, the federal death penalty is illustrative. Black inmates constitute twenty-eight of the fifty-seven (49%) inmates on federal death row.(fn12) As then-Assistant Attorney General Eric Holder emphasized in reaction to a September 2000 Department of Justice study of the federal death penalty, these disparities are alarming in a country where blacks constitute less than 13% of the population.(fn13) These same disparities persist even now that Eric Holder has been appointed the current Attorney General in the Obama Administration. In fact, early reports indicated that he has authorized the death penalty at the same rate, in the same places, and for the same race as did his predecessors in the Bush Administration.(fn14)

Geographic disparities also persist. To promote uniformity, United States Attorneys submit all death-eligible federal cases to the United States Attorney General for death-authorization.(fn15) Yet the geography of the federal death penalty is anything but uniform. Six of the ninety-four federal judicial districts account for one-third of death-authorizations.(fn16) More than half of all death-authorizations come from fourteen federal districts.(fn17) Seven federal districts are responsible for approximately 40% of the individuals on federal death row.(fn18) Two-thirds of districts have not sentenced anyone to death.(fn19) Nearly one-third of federal districts have not sought a death sentence.(fn20) Fewer than 20% of federal districts have sentenced more than one person to death.(fn21)

In 1994, Congress authorized the federal death penalty for a wide range of offenses, allowing it for every murder perpetrated with a firearm and that occurs during a crime of violence.(fn22) Over ten thousand murders with a firearm occur in the United States each year.(fn23) Yet, the government has charged only 2847 defendants with death-eligible federal crimes since 1988.(fn24) United States Attorneys General have reviewed 2219 of these cases and...