Abstract
Excerpted From: Justin D. Levinson and Rachel G. Schaefer, Flawed Framework, Fatal Discretion: Unraveling Implicit Bias in Capital Punishment Decisions, 75 Case Western Reserve Law Review 821 (Spring, 2025) (384 Footnotes) (Full Document).
The deeply intertwined connection between the state’s retributive machinery of death--capital punishment--and racial bias, has long been acknowledged and amplified in legal discourse. Dispassionate statistics-driven explorations, evocative qualitative accounts, as well as objective social-science-based experimental studies have repeatedly laid bare the same truth: America’s dance with the death penalty has been driven, characterized, and explained by race. Yet so many years into this discourse, the same, supposedly color-blind legal reality has prevailed: other than a few hiccups, the death penalty’s constitutionality and procedural legality lives on, impervious to the challenges made upon this racialization. Few courts or legislatures, most notably the United States Supreme Court, have been willing to act based on this unrelenting research. This leaves a small minority of jurisdictions that have opted to “tinker with the machinery of death” and prevent the racialized imposition of the ultimate sentence.
But are legal tools for raising constitutional and fairness concerns around the racialization of the death penalty still hapless? Or are the causal connections between implicit biases extant across society, and the means and modes by which the death penalty is sought and imposed, not yet precisely articulated? This Article invites scholars and practitioners to grapple not just with racialized snapshots of implicit bias and the death penalty, but rather to consider the deep interconnection and systemization of racial bias within each stage of--and among the major legal actors in--the capital legal process. Set largely within state laws and trial processes, such an inquiry demonstrates that while laws may at times directly and subtly introduce racial bias in death penalty proceedings, at other times they create permissive discretion-based frameworks that lead to the same racialized outcomes. This Article thus assembles a more complete implicit bias story around capital punishment, using both a multi-jurisdictional statutory perspective and a legal-actor-based discretionary framework.
Such a dual-model approach provides scholars and practitioners with a more comprehensive understanding of the racialized structures, procedures, and decision-makers of the death penalty that often get obscured and overlooked in the specificity of fact-driven cases and appeals.
The Article is structured as follows: Part I begins by situating race and the death penalty with a legal historical contextualization of race and the death penalty. It traces the painful and stark racialized motives of capital punishment into the modern post-Furman era, where supposedly protective statutory schemes have been of little help in remedying racialized capital punishment. It then presents a modern statutory overview of some current approaches to death penalty administration, setting the stage for an implicit bias critique of these and other state statutory schemes.
Part II builds on this historical and modern framing by presenting the social science of implicit bias in the death penalty context and examining the ways in which specific legal death penalty laws can directly serve to introduce or exacerbate implicit bias. Methodologies in this field are relevant to death penalty law and leverage social science measurements of automatic cognitive reactions to study bias.
After introducing these measures in the broader social science context, the Part describes how these methods have measured racial bias and its operation specifically in the death penalty and criminal law realm. It then outlines five specific legal schemes whereby laws act directly to potentially infuse implicit biases into cases.
Parts III and IV focus on the role of implicit bias on the key discretionary actors within the legal system. While, as Part II argues, some specific legal frameworks function to directly introduce implicit bias into the capital context, other laws indirectly do so by building discretion into key moments of the process. Part III in particular focuses on the ways that discretion affects repeat trial actors:
prosecutors, defense attorneys, and judges. It sets out the simultaneously intense and broad systemic reliance on prosecutorial discretion and ties this reliance to research demonstrating such discretion heightens pernicious racial bias effects. Relatedly, defense attorneys are often complicit in accepting a bias-laden narrative in ways that lead to failures of effective and diligent representation.
Furthermore, judges--shown to hold the same implicit biases as the population at large--risk making their bias-infused errors in domains such as hardship excusals, Batson rulings, evidentiary rulings, and, in some jurisdictions, resource allocations. Part IV continues this human focused implicit bias inquiry by considering the opportunity for non-repeat legal actors’ biases--those of jurors. Bestowed with massive responsibilities during both the guilt phase and sentencing phase of capital cases, jurors’ broad decision-making charge is threatened by racial bias in many ways: through death qualification, memory errors, reduced or enhanced empathy, skewed dangerous determinations, and the automatic devaluing of certain lives.
The Article concludes by considering a range of possible judicial, executive, and legislative responses to the multifaceted infusion of implicit bias in the death penalty, based upon a snapshot of such actions nationwide, and suggests that simple fixes will necessarily fall short of justice.
[ . . . ]
After presenting a broad treatment of the insipid fashion by which implicit bias enters the criminal, and, moreover, the capital, punishment system, the treatment proves far less satisfying. The well-inured relationship between capital punishment, racism, and implicit bias has been oft recognized and cited to in legal proceedings with resulting judicial intransigence. “[D]espite the effort of the States and courts to devise legal formulas and procedural rules to meet [the Court’s demands in Furman], the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” The inherent stumbling block exists in the tension crafted by requiring both a system wherein “[t]he sentencer’s discretion to impose death must be closely confined ... but the sentencer’s discretion not to impose death (to extend mercy) must be unlimited.” On either side of the scale, the decision-maker’s discretion remains. The Court’s “tinkering,” focused on the jury’s discretion-bound ultimate sentencing determination, while critical to “the machinery of death,” masks innumerable preceding decision points.
Since Furman, the Court’s efforts (Justice Blackmun notwithstanding) have amounted to mere tinkering to put a finger in the breaking dam of the ““modern era” still discriminatory death penalty. State efforts by courts and legislatures alike have been more strident, some efforts focused on ferreting out invidious discrimination in jury selection whereas others have created new mechanisms to challenge racialized effects across capital, or more generally criminal, proceedings. But these efforts have done too little to stem the tide; discriminatory practices and effects abound in death-penalty-retentionist states. Some jurisdictions, recognizing the system has completely run aground, have repealed or at least indefinitely paused capital punishment.
Some state efforts have been targeted--focusing on how juries are empaneled. In 1989, the U.S. military in essence eliminated Batson step one--requiring counsel to state the rationales for a strike whenever he strikes a prospective juror who is a member of the accused’s race.
Washington state led the charge with its Batson rule, known as General Rule 37, adopted by the state supreme court in April 2018. The rule not only enshrines Batson doctrines such as comparative juror and disparate questioning analyses for a court to use when assessing whether a party’s strikes are motivated in whole or in part by race, but also lists a series of presumptively invalid (presumed racially motivated) strike rationales (e.g., mistrust of or prior contact with police, having a prior child out of marriage) and encourages courts to scrutinize proffered rationales to determine whether they are a proxy for race. Other states have followed suit--commending General Rule 37 and suggesting legislatures, courts, special committees, and the like examine the rule to consider similar Batson expansion. New Jersey, California, and Connecticut adopted Batson reforms in 2022 including guidance for courts as to presumptively racialized rationales for strikes. But will these rules be effective? Or instead, merely provide a checklist of rationales not to be used--much as explicit discrimination went underground post-Batson? Arizona, recognizing peremptory challenges as a particularly unchecked vehicle for racial animus, repealed the process entirely.
Broader mandates against the pernicious effects of racism across capital or generally criminal proceedings are less widespread. North Carolina first experimented with a Racial Justice Act (RJA) in 2009, creating a pathway for death-sentenced persons to gain judicial relief upon a showing that race impacted either their sentencing determination or jury selection. Although the legislature repealed the RJA in 2013, the state supreme court determined that those petitions already filed--pertaining to nearly every death-sentenced North Carolinian--warranted on the merits adjudication. California followed suit--enacting a Racial Justice Act in 2020 and rendering it retroactive in phases, commencing on January 1, 2023. But North Carolina has only begun to accord merits hearings to RJA petitioners and most of those receiving RJA relief in California are pre-trial litigants, meaning many previous capital and non-capital adjudications remain unchecked.
One California Court of Appeal has moreover determined that there is no right to appeal the denial of a motion for discovery sought to advance a RJA claim. This court of appeal found that because the trial court had dismissed the declaration it construed as an effective RJA petition, there was no mechanism for that court to order discovery to further the petitioner’s discriminatory charging claim. Although the court advised that the petitioner could file a new RJA petition in the court of appeal and concurrently re-request the discovery sought, it is hard to see how such action would solve the underlying problem. Patterns and practices such as discriminatory charging or other racialized behaviors by prosecutors, courts, and defense counsel alike often require resort to information not hiding in plain sight. Logically, this is because either court actors seek to conceal their biases or because these biases are implicitly held. Requiring petitioners to full-throatedly plead the violation before having access to the documents that might substantiate the claim threatens to cut California’s RJA off at the knees.
Enacted in 2001, Texas more narrowly prohibits the prosecution from offering evidence “to establish that the race or ethnicity of the defendant makes it likely that the defendant will engage in future criminal conduct.” The state enacted this provision after it confessed error in offering expert psychological testimony linking race and future dangerousness to secure Victor Hugh Saldano’s death sentence, among others. Though the state later agreed to vacate other similarly procured death sentences, it stopped short of granting relief to Duane Edward Buck whose defense counsel had introduced this damning testimony. Thus, the State of Texas declined to extend its narrow protection against overt racism beyond the scheme’s plain language. And the statute fails to guard against other overt (let alone implicit) bias manifestations in capital proceedings.
Though multiple states have made as-yet incomplete efforts to ferret out racism in capital and criminal court processes, other states have found further tinkering in capital punishment insufficient to account for the pernicious effects of racial biases. In reliance on the state constitution, Washington repealed the death penalty in 2018, proclaiming the punishment was “imposed in an arbitrary and racially biased manner.”
Despite California’s efforts, Governor Gavin Newsom in 2019 ordered an execution moratorium, citing that the penalty has “discriminated against defendants who are ... black and brown.” In 2022, a collection of fifty-six elected prosecutors called for the repeal of capital punishment nationwide, citing the “racial biases ... embedded deep within our system of capital punishment.” And in states where the death penalty remains business as usual, studies abound showing that the ultimate punishment continues to be inflicted in a racially biased manner.
The baked in nature of implicit bias in the history, expansion, and current manifestation of capital punishment suggests even the broadest efforts are insufficient. And death is indisputably different from other punishments that may be imposed--“in its finality, [death] differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Perhaps it is time to tinker elsewhere and halt this racialized machinery of death.
Professor of Law, Cades Foundation Professor, & Director, Culture and Jury Project, University of Hawai'i at Manoa, William S. Richardson School of Law.
Assistant Federal Public Defender, Capital Habeas Unit, Northern District of Texas.
