Race, Death and Disproportionality (Symposium Article)

Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment. In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment. Yet, this kind of evidence has influenced many of the Justices\u27 views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment. My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to \u27cruel and unusual punishments\u27. Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future. My project proceeds in five parts. Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation - a mandate that only a person who deserves the death penalty should receive that sanction. Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it. Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process. Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur. Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves. Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced. In fact, Part V contends that, despite the Court\u27s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court - and will continue to influence it - to confine the use of the death penalty