Slavery's Enduring Legacy

Abstract

Using data on post-Greggexecutions and death sentences, we explore the previously observed, but not well understood, relationship between slavery and the death penalty. We classify modern states into categories focused on their jurisdictional law and practice of slavery circa 1860. Our analyses reveal that the relationship between slavery and modern executions is stronger even than previously recognized, with 90.6% of post-Greggexecutions occurring in states that supported the practice of slavery, whether or not they were in the Confederacy or inside the traditional boundaries of the South. We conclude that capital punishment is one of the enduring legacies of American slavery.     

Capriciousness or Fairness?

Abstract

Previous research on capital sentencing have discovered quantitative proof of discrimination, especially by race of the victim. The present study examines prosecutorial decision making in Kentucky. Using a method of analysis developed by Berk et al., it seeks to determine the level of capriciousness (uncertainty) present in the prosecutorial decision to seek the death penalty. Kentucky prosecutors were most likely to seek the death penalty in cases where black offenders killed white victims.     

Social science in supreme court death penalty cases: Citation practices and their implications

This study examines the use of evidence based on social science research in Supreme Court capital punishment cases decided between 1963 and 1985. These years mark the beginning of the Court's modern decisions regarding the death penalty and extend to the approximate midpoint in this body of jurisprudence. The frequency and the major correlates of social science research citations in the Supreme Court's death penalty cases are described, and these findings are contrasted with the justices' use of social science evidence in other types of criminal cases. The justices have used social science materials relatively often in capital punishment cases, although it does not necessarily follow that social science findings have been important to the decision of these cases. The results of this research are discussed, along with other issues relevant to the judicial use of research evidence based on social science.     

Desert, Justice and Capital Punishment

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty.

Reflections of an octogenarian on criminal law and criminology

The U.S. Supreme Court has declared that capital punishment is not unconstitutional per se, in part because the high degree of public support for the death penalty indicates that the American public does not consider it to be cruel and unusual punishment. According to the Court, the public's desire for retribution is an appropriate basis for determining that the death penalty is an acceptable criminal sanction. This paper examines the degree of public support for the death penalty and the basis for that support. It also explores the differences between retribution as just deserts and retribution as revenge, and concludes by asking whether a public desire for revenge is an appropriate, enlightened basis for our capital punishment policy.     

Reasons for South Korean attitudes towards the death penalty: exploring the nexus between strong public support and history of misapplication

As of this writing, South Korea (officially, the Republic of Korea) is an abolitionist-in-practice nation; capital punishment is legal, but no death sentences have been carried out since a moratorium was enacted in 1997. Public support for the death penalty has decreased over time; however, the factors that determine support for or opposition to the death penalty of the South Korean general public are largely unknown. Using survey data from a nationwide sample of 416 respondents, this study examined the potential predictors for public attitudes towards capital punishment support. A majority of survey respondents (83%) supported the death penalty, a higher percentage than recent surveys of the South Korean general public. The deterrence and retribution perspectives were positively related to death penalty support, while crime severity, neighbourhood safety, the brutalisation effect, and innocence were negatively related. This study provides the first multivariate analysis of factors associated with South Korean attitudes towards the death penalty.     

Discrimination and Instructional Comprehension: Guided Discretion,Racial Bias,and the Death Penalty

This study links two previously unrelated lines of research: the lack of comprehension of capital penalty-phase jury instructions and discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. Dependent measures included a sentencing verdict (life without the possibility of parole or the death penalty), ratings of penalty phase evidence, and a test of instructional comprehension. Results indicated that instructional comprehension was poor overall and that, although Black defendants were treated only slightly more punitively than White defendants in general, discriminatory effects were concentrated among participants whose comprehension was poorest. In addition, the use of penalty phase evidence differed as a function of race of defendant and whether the participant sentenced the defendant to life or death. The study suggest that racially biased and capricious death sentencing may be in part caused or exacerbated by the inability to comprehend penalty phase instructions.     

the death penalty: An American history

Stuart Banner's thoughtful book, The Death Penalty: An American History (2002), serves as the basis of this review essay which explores the forces shaping the nation's experiences with capital punishment. The essay traces Banner's account of important death penalty developments throughout American history and examines justifications traditionally offered in support of capital punishment, issues of administration, and execution protocols. It concludes by projecting that, consistent with historical trends and nagged by serious and recurring administrative problems, the death penalty in America will in due course become a thing of the past.     

The Impact of the Rape/Sexual Assault Statutory Aggravating Factor on Death Sentencing Decision Making in Capital Murder Trials in North Carolina (1977–2009): A Propensity Score Matching Approach

It was not too many decades ago that rape was a crime for which the death penalty was a permissible punishment in the United States, particularly in death penalty states in the South. Relatedly, historical and contemporary death penalty research almost always focuses on the role of the race of the defendant and, more recently, the race of the victim and defendant–victim racial dyads as being relevant factors in death penalty decision making. As such, the current study employs data from official court records for the population of capital trials (n = 954) in the state of North Carolina (1977–2009) to evaluate the effect of the rape/sexual assault statutory aggravating factor on jurors’ decision to recommend the death penalty. Results suggest that cases in which rape is an aggravating factor had a significantly greater odds of receiving a death penalty recommendation, and these results are robust after also considering the independent effects of defendant–victim racial dyads, even following the application of propensity score matching to equate cases on a host of defendant and victim characteristics, legal and extralegal confounders, and case characteristics. Study limitations and implications are discussed.     

Framing Capital Punishment in Japan: Avoidance,Ambivalence, and Atonement

This article examines how two of Japan’s largest newspapers frame death penalty issues. Through a content analysis of 7,153 Asahi and Nikkei articles in the 66-month period from January 1, 2007 to June 30, 2012, 11 death penalty frames are identified: inevitability, atonement by dying, atonement by living, victims’ rights and emotions, human rights, miscarriage of justice, calls for discussion, life without parole, deterrence, public support, and retribution. In addition to frames, we examined who the main voices are in each article on capital punishment. We found that avoidance and ambivalence are the two main approaches taken by Asahi and Nikkei to cover death penalty issues, and the most surprising finding is the high salience of atonement as a frame for thinking about capital punishment. In Japan, atonement is used to justify (atone by dying) and oppose (atone by living) the death penalty. Although atonement by living in prison and atonement by dying at the gallows imply radically different outcomes, the flexibility of the atonement frame may suggest new possibilities for Japan’s anti-death penalty movement.     

Capital Jury Deliberation: Effects on Death Sentencing,Comprehension, and Discrimination

This study focused on whether and how deliberations affected the comprehension of capital penalty phase jury instructions and patterns of racially discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. The participants provided their initial “straw” sentencing verdicts individually and then deliberated in simulated 4–7 person “juries.” Results indicated that deliberation created a punitive rather than lenient shift in the jurors’ death sentencing behavior, failed to improve characteristically poor instructional comprehension, did not reduce the tendency for jurors to misuse penalty phase evidence (especially, mitigation), and exacerbated the tendency among White mock jurors to sentence Black defendants to death more often than White defendants.     

An empirical examination of commutations and executions in post-Furman capital cases

A review of the literature on capital punishment reveals evidence that the death penalty was imposed capriciously in the past. Previous research on executive clemency in capital cases revealed similar forces in operation. In the voluminous literature surrounding capital punishment, however, relatively little contemporary empirical work focuses directly on the characteristics of the final clemency decision to commute or execute, especially post-Furman. In this paper I explore some of these elements and find that several extralegal factors, possibly including political motivation, still may play a role in this highly discretionary decision-making process.     

Patterns of discrimination in assessments of the death penalty: The case of Louisiana

This work contributes to a growing body of literature by analyzing patterns of capital punishment sentencing in Louisiana during the post-Furman era. The specific focus of the study was to determine whether patterns of discrimination by race continue to persist. A logit model was utilized with data consisting of 504 cases of homicide eligible for capital punishment, fifty-three of which had been assigned the death penalty. Results indicated that a pattern of discrimination by race of victim, but not by race of offender, existed, even when a number of legal and extra-legal factors were controlled. In addition, an effect for sex of the victim was noted. Another pattern found, that of capriciousness, is also discussed.     

Race and the Death Penalty

Abstract

Scholars have learned a great deal about race and the death penalty. Yet the field has limitations: (1) prior research focuses on African Americans and Hispanics but ignores Asian Americans; (2) researchers have not explored Donald Black's (1989) plan to eliminate discrimination called the “desocialization of law.” Black notes that jurors who do not know the race of the offender and victim cannot discriminate. Black then outlines proposals aimed at removing race information from trials, while still providing jurors with relevant legal information. We address both issues through an experiment in which mock jurors (N = 1,233 students) recommended a sentence in a capital murder trial consisting of four conditions: (1) Asian American-white; (2) white-Asian American; (3) African American-white; (4) race of offender and victim unknown. The results suggest that Asian Americans are treated the same as whites, while African Americans continue to suffer from discrimination. Here, we consider the potential role of social status in such outcomes. The results also suggest that African American offenders and unknown offenders face the same odds of a death sentence. Here, we consider two potential interpretations. On one hand, jurors in the unknown condition could have seen an African American offender and a white victim in their “mind's eye,” effectively merging the conditions. On the other hand, death sentences could be the same in the conditions for distinct reasons: Death sentences could be high in the unknown condition because of relational distance between the juror and offender, while death sentences could be high in the African American-white condition because of discrimination. We conclude by considering the theoretical and public policy implications of both the central findings.     

Confidence in the death penalty and support for its use: Exploring the value-expressive dimension of death penalty attitudes

Recent media and political attention has raised public awareness of a number of issues surrounding the death penalty. Questions regarding innocence, fair trials, and equitable access to counsel and the appellate process are ubiquitous in coverage of the death penalty. Adequate information about public attitudes toward the death penalty in light of these issues is currently lacking. In 2002, as part of the annual Texas Crime Poll, questions were asked about confidence in the administration of the death penalty, support for the death penalty, and support for a moratorium. The results indicate that, although a majority of respondents support the death penalty, a substantial proportion lack confidence in its use and support a moratorium on executions. Of those lacking confidence and those supporting a moratorium, strong majorities maintain support for the death penalty (68% and 73%, respectively). These findings suggest that death penalty attitudes may be largely value expressive.     

A comment on racial discrimination in prisons in England and Wales

This paper revisits systematically some of the evidence regarding racial discrimination against ethnic minority groups in prisons in the British context. Police racism has been openly discussed after the death of Stephen Lawrence, and the time is ripe to extend the discussion to the Prison Service. Based on limited data from Home Office reports, and some research on race and crime, there is real evidence of direct and indirect racial discrimination in prisons. Although we may find it difficult to admit that many current practices lead to discriminatory outcomes, prima facie some of the black and Asian prisoners reported being treated unfairly in many respects such as racial stereotyping and biased allocation of jobs; they perceived their treatment subjectively as racism. Finally, recommendations on what can and should be done to eradicate racial discrimination and how to research this sensitive topic are discussed.     

Putting kids to death: Specifying public support for juvenile capital punishment

Using a statewide sample of 539 Tennessee residents, we explored the extent to which the public supports the death penalty for juveniles. The analysis revealed that a majority of respondents favored juvenile capital punishment, often for young offenders. The respondents, however, were less supportive of juvenile than of adult execution. Most important, as an alternative to juvenile capital punishment, nearly two-thirds of the sample favored life in prison without the possibility of parole (LWOP); four-fifths favored a life sentence with work and restitution requirements (LWOP+W/R). Notably, even among those who endorsed capital punishment for juveniles, a clear majority supported LWOP+W/R. Taken together, these findings reveal that although the public is willing to execute juveniles who commit first-degree murder, they prefer alternative sentencing options that avoid putting youths to death.     

Applying Moral Foundations Theory to the Explanation of Capital Jurors’ Sentencing Decisions

Abstract

This study applies moral foundations theory to capital juror decision making. We hypothesized that binding moral foundations would predict death qualification and punitive sentencing decisions, whereas individualizing moral foundations would be associated with juror disqualification and a leniency effect. Additionally, we considered whether moral foundations can explain differences in death penalty application between conservatives and liberals. Respondents from two independent samples participated in a mock-juror task in which the circumstances of a hypothetical defendant’s case varied. Results revealed moral foundations were strong predictors of death qualification. The binding and individualizing foundations were related to sentencing decisions in the expected ways. Supporting our contention that moral foundations operate differently across different types of cases, heterogeneity in the effects of moral foundations was observed. Finally, we found support for the hypothesis that the relationship between sentencing decisions and conservatism would be attenuated by moral foundations.     

The states and capital punishment: Executions from 1977–1984

The execution of Gary Gilmore in 1977 ended a ten-year de facto moratorium on executions in the states. Between 1977 and 1984 only 32 individuals were executed in 11 states, yet there were more than 1,000 inmates on death rows in 33 of the 38 states which provide for capital punishment. Because of the background characteristics of these 32 people and the crimes of which they were convicted, their executions have not served to renew anti-death penalty sentiment. Although the debate over the efficacy of its use continues, these executions have not validated any of the major arguments made by either pro or anti-death penalty forces.