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Excerpted From: Justin D. Levinson, Robert J. Smith, and Danielle M. Young, Devaluing Death: an Empirical Study of Implicit Racial Bias on Jury-eligible Citizens in Six Death Penalty States, 89 New York University Law Review 513 (May, 2014) (261 Footnotes) (Full Document)


JustinDLevinsonStark racial disparities define America's relationship with the death penalty. Scholars have been documenting these disparities for decades, and modern empirical evidence demonstrates their continued existence. The most consistent and robust finding in this literature is that even after controlling for dozens and sometimes hundreds of case-related variables, Americans who murder Whites are more likely to receive a death sentence than those who murder Blacks. Though the effects are smaller (and more controversial), a significant body of research also finds that, in some jurisdictions, Black defendants are sentenced to death more frequently than White defendants, especially when the universe of studied cases is narrowed to include only those cases that result in a capital trial.

Commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences. These possibleRobertJSmith explanations fall into three broad categories. The first is a spatial and cultural explanation. For example, prosecutors might be more inclined to pursue capital charges when a non-White community outsider crosses geographic and social boundaries to commit a crime against a White community insider. The second category is procedural. For example, prosecutors might disproportionately pursue the death penalty for crimes against White victims. Moreover, jurors may have a difficult time empathizing with mitigating evidence presented by Black defendants and, conversely, victim impact testimony might disproportionately magnify the loss of White victims compared to non-White victims. The third category is structural. For example, the penological justifications for capital punishment--i.e., retribution--might be inextricably tied to race. Specifically, the process of death-qualifying jurors might inadvertently racialize capital trials despite its purpose of promoting impartiality.

No convincing evidence suggests that any one of these factors consistently accounts for all--or most--of the unjustified racial disparities at play in the administration of capital punishment. Indeed, these factors appear to matter in varying degrees across jurisdictions (and, for that matter, over time within the same jurisdiction). We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind automatically introduces substantial bias into the seemingly neutral concepts and processes of death penalty administration.

DanielleYoungFew scholars have relied on modern social science methods or evidence to deconstruct the ways the human mind may unwittingly contribute to racial disparities in the death penalty. This Article begins to fill that gap by considering racial disparities in capital punishment through the lens of implicit racial bias. Implicit bias refers to the automatic attitudes and stereotypes that appear in individuals. Research shows these biases affect a broad range of behaviors and decisions; the breadth of knowledge in this area continues to expand. Implicit biases, for example, have been shown to predict the way economic allocations are made, the way medical treatments are rendered, and the way job interviews are offered. Yet knowledge of implicit cognitive processes has yet to be adequately considered as an underlying source of inequity in capital punishment. To address this knowledge gap, we conducted an empirical study of jury-eligible citizens from six of the most active death penalty states. The results of the study underscore the potentially powerful role of implicit bias and suggest that racial disparities in the modern death penalty could be linked to the very concepts entrusted to maintain the continued constitutionality of capital punishment: its retributive core, its empowerment of juries to express the cultural consensus of local communities, and the post-Gregg regulatory measures that promised to eliminate arbitrary death sentencing.

Empirical research on race and the death penalty outside the context of implicit bias was a model of productivity in early empirical legal scholarship. In the early 1970s, researchers investigated topics spanning from the role of death qualification on the composition of the jury to the now-infamous race-of-victim effects that (over thirty years after they were first discovered) continue to define the make-up of death rows everywhere. Much of this work has relied on modern and sophisticated empirical methods. Yet empirical work on implicit bias has barely scratched the surface of issues related to race and the death penalty. In an effort to begin an empirical consideration of implicit bias in the death penalty, we designed a study that examined the role of implicit bias in a broad range of jury-eligible citizens in six leading death penalty states. Our study sought to answer a range of questions relevant to racial bias and the death penalty, including: (1) do jury-eligible citizens in death penalty states harbor implicit racial stereotypes, such as stereotypes that Blacks are aggressive, lazy, and worthless, and Whites are virtuous, hard-working, and valuable; (2) do death-qualified jurors hold stronger implicit and explicit racial biases than non-death-qualified jurors; and (3) do implicit and explicit biases predict death penalty decisionmaking depending upon the race of defendant and victim?

We hypothesized that capital jurors possess implicit racial biases both as to traditional racial stereotypes as well as moral stereotypes related to the value of human life--specifically, that White people are more valuable than Black people. We also predicted that death qualification, a legal process designed to provide fairness in the administration of the death penalty, actually functions to remove the least racially-biased jurors from juries. And finally, we hypothesized that jurors' implicit biases would help predict their ultimate life-and-death decisions.

Results of the study confirmed several of our hypotheses. To begin with, we found--as expected--that jury-eligible citizens harbored the two different kinds of implicit racial bias we tested: implicit racial stereotypes about Blacks and Whites generally, as well as implicit associations between race and the value of life. In addition, we found--as predicted--that death-qualified jurors harbored stronger racial biases than excluded jurors. These differences in racial bias levels were revealed on both implicit and self-reported (explicit) measures.

We also conducted a mock trial scenario. Although our overall results did not replicate the known racial effects on ultimate life-and-death decisions, results of the study showed that implicit racial bias predicted race-of-defendant effects. That is, the more the mock jurors showed implicit bias that related to race and the value of human life, the more likely they were to convict a Black defendant relative to a White defendant. Finally, we found that self-reported (explicit) racial bias predicted death decisions based on the race of victim.

This Article considers what an implicit bias examination can contribute to the discussion of racial disparities and capital punishment and presents the empirical study we conducted to test our hypotheses. The Article is organized as follows: Part I frames the issue by presenting the historical and constitutional problem. It considers the history of race and the death penalty, and specifically focuses on the modern prevalence of race-of-victim effects and the constitutional challenges surrounding racial inequalities in capital punishment. Part II introduces implicit bias to the capital context. It briefly summarizes empirical implicit bias scholarship in the criminal justice realm. It also proposes an implicit bias model of jury decisionmaking that could be relevant both to non-capital and capital cases, and presents a theory that attempts to deconstruct the role of implicit bias in capital cases. Part III details the empirical study. It begins by describing the methods and materials of the experiment, which was conducted in six leading death penalty states, and concludes by presenting the results. Among other things, the results of the study found that death-qualified jurors are more racially biased (both implicitly and explicitly) than non-death qualified jurors and also that both implicit and explicit biases can play a role in the ultimate decision of whether a defendant lives or dies. Part IV considers the implications of the study from multiple perspectives and contextualizes the results both in legal scholarship and in terms of constitutional jurisprudence. We conclude with a brief examination of future pathways for identifying and assessing the locations where racial disparities continue to plague the administration of the death penalty.

. . .

This Article presents the results of an experimental study of 445 jury-eligible citizens located in six of the most active death penalty states in the country. Cognizant of persistent racial disparities in the administration of the modern death penalty, we sought to examine whether implicit racial bias helps to shed light on where and how race influences death penalty outcomes. Our central findings are that jury-eligible citizens implicitly associate Whites with ‘worth‘ and Blacks with ‘worthless,‘ that death-qualified jurors hold stronger implicit and self-reported biases than do jury-eligible citizens generally, that the exclusion of non-White jurors accounts for the differing levels of implicit racial bias between death-qualified and non-death-qualified jurors, and that implicit racial bias predicts race-of-defendant effects and explicit racial bias predicts race-of-victim effects. These findings strongly suggest that implicit racial bias does have an impact on the administration of the death penalty in America. Specifically, we conclude that implicit bias complicates the Supreme Court's reliance on retribution as the legitimizing punishment rationale for the death penalty, complements and diversifies the proof that the post-Gregg procedural regulation of capital punishment has not been successful at eliminating racial arbitrariness, and hints that procedural regulations intended to promote impartiality--for example, death qualification--might, in fact, exacerbate the influence of race on death penalty outcomes.

We hope that this Article is seen as a beginning--proof that research into the locations and procedures that drive racial disparities is worth exploring through the lens of implicit social cognition. Future researchers might want to directly explore the relationship between race and retribution by testing, for example, whether implicit racial bias scores predict support for capital punishment as expressed through policy statements (or even newspaper stories) that present retributive (compared to, say, deterrence) rationales for capital punishment. Scholars might also test whether implicit racial bias plays a role in pretrial sorting of capital cases. For example, do prosecutors perceive cases to be more serious when they involve White victims, and, if so, do value of life implicit bias scores predict these differing seriousness evaluations?

Future research will help isolate when, where, and how race influences the administration of capital punishment. These projects will provide additional context for decisionmakers, regardless of whether they are state legislators examining whether capital punishment remains a wise policy choice, the Supreme Court deciding if the death penalty can be sustained on retributive grounds or if procedural regulations have eradicated intolerable racial arbitrariness, or even individual prosecutors or capital jurors deciding whether to seek or impose the death penalty in a particular case. Tools such as the methods developed in the field of implicit social cognition provide the mechanisms necessary to glean the answers that decisionmakers need in a way that scholars simply could not have imagined at the time that Furman and Gregg were decided. We hope that this Article--and the study that anchors it--will be the first of many studies to engage with these questions through the implicit social cognition lens.



Professor of Law and Director, Culture and Jury Project, University of Hawai‘i at MEanoa, William S. Richardson School of Law.

Assistant Professor of Law, University of North Carolina at Chapel Hill.

Postdoctoral Researcher, Rutgers University Department of Psychology.