Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities

Published by the Government Accountability Office on 1990-02-26.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

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                                                 DEATH PENALTY
                                                 Research Indicates
                                                 Pattern of Racial


                     United States
    GAO              General Accounting Office
                     Washington, D.C. 20548

                     General Government Division

                     February 26, 1990

                     The Honorable Joseph R. Biden, Jr.
                     Chairman, Committee on the Judiciary
                     United States Senate

                     The Honorable Strom Thurmond
                     Ranking Minority Member, Committee
                       on the Judiciary
                     United States Senate
                     The Honorable Edward M. Kennedy
                     Chairman, Subcommitteeon Immigration
                       and Refugee Affairs
                     Committee on the Judiciary
                     United States Senate
                     The Honorable Jack Brooks
                     Chairman, Committee on the Judiciary
                     House of Representatives
                     The Honorable Hamilton Fish, Jr.
                     Ranking Minority Member, Committee
                       on the Judiciary
                     House of Representatives

                     The Anti-Drug Abuse Act of 1988 (Public Law 100-690) requires us to
                     study capital sentencing procedures to determine if the race of either
                     the victim or the defendant influences the likelihood that defendants
                     will be sentencedto death. We did an evaluation synthesis-a review
                     and critique of existing research- on this subject to fulfill the mandate.
                     This report provides a summary of our findings and a discussion of our
                     approach and data limitations.

                     An evaluation synthesis is a critical integration of findings from existing
      Approach       empirical research on a given topic- in this case death penalty sentenc-
                     ing after the Furman decision.’First, we identified and collected all
                     potentially relevant studies done at national, state, and local levels from

                     ‘In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court found unconstitutional death
                     sentences imposed under state statutes which allowed juries to impose these sentences in w arbitrary
                     or capricious manner. In response to this decision, states adopted new statues that addressed the
                     concerns raised by the Court.

                     Page 1                                           GAO/GGD-90-57Racial Di~~paritiesin Sentencing
both published and unpublished sources.Computer-generatedbiblio-
graphic searchesand manual reviews of the bibliographies of studies
that we obtained contributed to our list of potentially relevant material.
We also surveyed 21 criminal justice researchersand directors of rele-
vant organizations whose work relates to death penalty sentencing to
identify additional research. We screenedmore than 200 annotated cita-
tions and referencesto determine relevance to our review. We excluded
studies that (1) were based primarily on data collected prior to the
Furman decision and (2) did not examine race as a factor that might
influence death penalty sentencing.From this initial screening we
obtained 63 studies that we determined to be relevant.
We then reviewed each of the 63 studies to determine both appropriate-
ness and overall quality of the research. We excluded studies that did
not contain empirical data or were duplicative (a few researcherspub-
lished several articles, with the most current including data and findings
cited in earlier versions). Twenty-eight studies remained after this
assessment.The information included in these studies forms the basis
for our findings.
Next, we rated the 28 studies according to research quality. Two social
scienceanalysts independently rated each study in five dimensions:(1)
study design, (2) sampling, (3) measurement,(4) data collection, and (6)
analysis techniques, A rating for overall quality was also given. A third
analyst reviewed the raters’assessmentsto ensure consistency. In addi-
tion, a statistician reviewed the studies that used specialized analytic
techniques to assesswhether the techniques were applied correctly and
whether the analyses fully supported the researchers’conclusions.
Finally, we extracted all relevant information on the relationship of race
to death penalty sentencing from each of the studies. This information
was compared and contrasted across studies to identify similarities and
differences in the findings.
Evaluation synthesis has benefits and limitations, The major benefit is
that evidence from multiple studies can provide greater support for a
finding than evidence from an individual study. The major limitation is
that this approach dependson the quantity and quality of the design
and methodology of available studies and the comprehensivenessof
their reporting. In this case,the body of research concerning discrimina-
tion in death penalty sentencing is both of sufficient quality and quan-
tity to warrant the evaluation synthesis approach.

Page 2                              GAO/GGD-90-57Racial Disparities in Sentencing
                         We evaluated 28 studies which were done by 21 sets of researchers.”
Des ription of the       The studies covered homicide casesfor different time periods through
Stu 4 ies                1988, many states that have the death penalty, and different geographic
                         regions of the country. In three instances, two or more articles were gen-
                         erated from a single database, with each article focusing on a different
                         aspect of the sentencing process. A few researchers used data from
                         other studies in their analyses. Overall, the 28 studies constitute 23 dif-
                         ferent data sets.
                         We rated almost half of the studies as high or medium quality; the
                         remainder were rated as low. It is important to evaluate research qual-
                         ity for two reasons: (1) the results of the synthesis should be based on a
                         sufficient number of medium or high quality studies; and (2) it is impor-
                         tant to note differences in studies’findings, if any, by the quality of the
                         studies, By quality we mean the strength of the design and the rigor of
                         the analytic technique that leads to a level of confidence we have in the
                         study findings. We judged a study to be high quality if it
                     . was characterized by a sound design that analyzed homicide cases
                       throughout the sentencing prqcess;
                     . included legally relevant variables (aggravating and mitigating circum-
                       stances); and
                     . used statistical analysis techniques to control for variables that corre-
                       late with race and/or capital sentencing.

                         We judged a study as medium quality if we found it to be lacking in one
                         or more of the above characteristics. However, the medium quality stud-
                         ies generally were more similar to high quality studies than to low qual-
                         ity studies. Low quality studies typically had weak or flawed designs,
                         relied on less reliable statistical analysis, and were simplistic in interpre-
                         tation of the data. Studies published before 1986 comprised a larger pro-
                         portion of lower quality studies than those published subsequently. This
                         coincides with the relatively recent development and use of a more
                         sophisticated statistical technique appropriate for use with data such as
                         those in death penalty studies.

Limitations of the       the design and analysis of the research. We identified three major limita-
Studies      a           tions among these studies: (1) the threat of sample selection bias, (2) the
                         problem of omitted variables, and (3) the small sample sizes.
                         “Appendix I includes a list of the studies we used in the synthesis.

                         Page 3                                             GAO/GGD99-57 Racial Dieparities in Sentencing

      Sampleselection bias implies that the casesunder consideration are not
      representative of all the casesof interest. The crim inal justice system is
      characterized by discretionary processesof selection at different points
      in the system. Racial factors may influence decisionsat different stages
      of the process.A study that considered only whether persons convicted
      were sentencedto death was especially prone to the biasing effect of
      sample selection. Racial factors may have influenced decisionsearlier in
      the process,such as whether the prosecutor requested that an offender
      be charged with capital murder. This discretion exercised early in the
      processmay have the effect of concealing(masking) race effects if anal-
      ysis is lim ited only to the later stages.

      We found sample selection bias in more than half of the low quality
      studies; these studies typically analyzed only those casesin which the
      defendant was convicted of capital murder or received the death pen-
      alty. Studies that included all reported homicides and followed the dis-
      position of these defendants from initial charge through subsequent
      stagesof the judicial process are not likely to have been affected by this
      bias. More than two-thirds of the studies we rated high or medium qual-
      ity picked up casesprior to conviction and followed these casesthrough
      the judicial process.

      Another lim itation is the problem of omitted variables. This lim itation is
      especially important in studies examining racial discrimination. This is
      becausethe effect of race is considered the residual-after all relevant
      and important variables have been controlled, the effect that remains,
      the residual, is interpreted to be racial disparity. Omitting relevant vari-
      ables can affect results by failing to reduce the residual appropriately,
      thus enhancing the perceived racial disparity. Omitted variables in
      death penalty research are potentially of two types: (1) variables that
      were known and were believed to be correlated with race or the death
      penalty and (2) variables that were not known and may be correlated
      with race or the death penalty outcome.

      Several of the higher quality studies controlled for many variables. For
      example, one high quality study controlled for more than 200 variables.
      Only a few variables are shown to be highly explanatory. Most of these
      are controlled for in the better quality studies. However, there are vari-
      ables such as strength of evidence or socioeconomicstatus of the victim
      and defendant which are difficult to measure or obtain. If there are
      important omitted variables (either becausethey are difficult to mea-
      sure or becausethey are unknown), other explanations for the differ-
      encesin death penalty outcomescannot be excluded. But for another

      Page 4                               GAO/GGD-90-57 Racial Disparities in Sentencing
            variable to influence the existing disparity it would have to (1) be
            jointly correlated with both race and the death penalty outcome and (2)
            operate independently of the factors already included in the analysis.

            A third limitation relates to the consequencesof the small sample sizes
            in the analyses of death penalty imposition. The imposition of the death
            penalty is a relatively rare event. As such, in most studies there were
            very few casesat the end of the process-the sentencing and imposition
            stages.The small sample size places limits on the usefulness of statisti-
            cal techniques for analysis at these final stages and thus limits the rigor
            of analyses at these stages.
            While the severity of the limitations varied, as reflected in the studies’
            ratings, these limitations do not preclude a meaningful analysis of the
            studies. We have considered quality in evaluating the studies and arriv-
            ing at our findings.

            Our synthesis of the 28 studies shows a pattern of evidence indicating
Fifidings   racial disparities in the charging, sentencing, and imposition of the
            death penalty after the Furman decision.

            In 82 percent of the studies, race of victim was found to influence the
            likelihood of being charged with capital murder or receiving the death
            penalty, i.e., those who murdered whites were found to be more likely to
            be sentencedto death than those who murdered blacks.”This finding
            was remarkably consistent across data sets, states, data collection meth-
            ods, and analytic techniques. The finding held for high, medium, and
            low quality studies.
            The race of victim influence was found at all stagesof the criminal jus-
            tice system process,although there were variations among studies as to
            whether there was a race of victim influence at specific stages.The evi-
            dence for the race of victim influence was stronger for the earlier stages
            of the judicial process (e.g., prosecutorial decision to charge defendant
            with a capital offense, decision to proceed to trial rather than plea bar-
            gain) than in later stages.This was becausethe earlier stages were com-
            prised of larger samples allowing for more rigorous analyses. However,

            “When we refer to a finding of racial disparities at the sentencing and imposition stages we are, in
            fact, including disparities that occurred in earlier stages of the judicial process, e.g., charging and
            decision to proceed to trial.

            Page 6                                              GAO/GGD-90-67Racial Disparities in Sentencing

decisionsmade at every stage of the process necessarily affect an indi-
vidual’s likelihood of being sentencedto death.
Legally relevant variables, such as aggravating circumstances,were
influential but did not explain fully the racial disparities researchers
found. In the high or medium quality studies, researchersused appropri-
ate statistical techniques to control for legally relevant factors, e.g.,
prior crim inal record, culpability level, heinousnessof the crime, and
number of victims. The analysesshow that after controlling statistically
for legally relevant variables and other factors thought to influence
death penalty sentencing(e.g., region, jurisdiction), differences remain
in the likelihood of receiving the death penalty based on race of victim .
The evidence for the influence of the race of defendant on death penalty
outcomeswas equivocal. Although more than half of the studies found
that race of defendant influenced the likelihood of being charged with a
capital crime or receiving the death penalty,4 the relationship between
race of defendant and outcome varied across studies. For example,
sometimesthe race of defendant interacted with another factor. In one
study researchersfound that in rural areas black defendants were more
likely to receive death sentences,and in urban areas white defendants
were more likely to receive death sentences.In a few studies, analyses
revealed that the black defendant/white victim combination was the
most likely to receive the death penalty. However, the extent to which
the finding was influenced by race of victim rather than race of defend-
ant was unclear.
Finally, more than three-fourths of the studies that identified a race of
defendant effect found that black defendants were more likely to
receive the death penalty. However, the remaining studies found that
white defendants were more likely to be sentencedto death.
To summarize,the synthesis supports a strong race of victim influence.
The race of offender influence is not as clear cut and varies across a
number of dimensions.Although there are lim itations to the studies’
methodologies,they are of sufficient quality to support the synthesis

“About two-thirds of these studies were of high or medium quality.

Page 6                                           GAO/GGD-90-57 R&al   Disparities in   Sentencing
We are sending copies of this report to cognizant congressionalcommit-
tees, the Attorney General, and other interested parties.

Major contributors to this report are listed in appendix II. Pleasecall me
at 276-8389 if you have any questions.

Lowell Dodge
Director, Administration
  of Justice Issues

Page 7                               GAO/GGD-90-57Racial Disparities in Sentencing


Letter                                                                       1

Apbendix I                                                                  10
Lise of Studies
Ap$endix II                                                                 13
Major Contributoxy to
This Report

                        Page 8   GAO/GGDBM7 Racial Diaparltles in Sentencing
Page 9   GAO/GGD9O-67Racial Diaparltiea in Sentencing
Appendix I

I&t of Studies

                 Arkin, Stephen. “Discrimination and Arbitrariness in Capital Punish-
                 ment: An Analysis of Post-Furman Murder Casesin Dade County, Flor-
                 ida, 1973-1976.”Stanford Law Review, Vol. 33 (November 1980) 76-
                 Baldus, David, GeorgeWoodworth, and Charles Pulaski. Equal Justice
                 and the Death Penalty: A Legal and Empirical Analysis. Boston: North-
                 eastern University Press, 1990.
                 Barnett, Arnold. “Some Distribution Patterns for the Georgia Death Sen-
                 tence.” University of California Davis Law Review, Vol. 18, No. 4 (Sum-
                 mer 1986) 1327-1374.
                 Berk, Richard and Joseph Lower-y. “Factors Affecting Death Penalty
                 Decisionsin Mississippi,” (unpublished manuscript, June 1986).
                 Bienen, Leigh et al. “The Reimposition of Capital Punishment in New
                 Jersey: The Role of Prosecutorial Discretion.” Rutgers Law Review (Fall
                 1988) 27-372.

                 Bowers, William. “The Pervasivenessof Arbitrariness and Discrimina-
                 tion Under Post-Furman Capital Statutes.” Journal of Criminal Law &
                 Criminology, Vol74. No. 3 (Fall 1983) 1067-1100.

                 Bowers, William and Glenn Pierce. “Arbitrariness and Discrimination
                 under Post-Furman Capital Statutes.” Crime and Delinquency (October
                 1980) 663-636.
                 Ekland-Olson,Sheldon. “Structured Discretion, Racial Bias and the
                 Death Penalty: The First DecadeAfter Furman in Texas.” Social Science
                 Quarterly, Vol. 69 (December 1988) 863-873.
                 Foley, Linda. “Florida after the Furman Decision: The Effect of Extrale-
                 gal Factors on the Processingof Capital Offense Cases.”Behavioral Sci-
                 ences& the Law, Vol. 6, No. 4 (Autumn 1987) 467-465. -
                 Foley, Linda and Richard Powell. “The Discretion of Prosecutors,
                 Judges, and Juries in Capital Cases.” Criminal Justice Review Vol. 7, No.
                 2 (1982) 16-22.
                 Gross, Samuel and Robert Mauro. “Patterns of Death: An Analysis of
                 Racial Disparities in Capital Sentencingand Homicide Victimization.”
                 Stanford Law Review, Vol. 37 (1984) 27-153.

                 Page 10                            GAO/GGJMO-57Racial Disparities in Sentencing
Appendix I
List of Studies

Keil, Thomas and Gennaro Vito. “Race and the Death Penalty in Ken-
tucky Murder Trials: An Analysis of Post-GreggOutcomes.”Forthcom-
ing in Justice Quarterly.

Keil, Thomas and Gennaro Vito. “Race, Homicide Severity, and Applica-
tion of the Death Penalty: A Consideration of the Barnett Scale.”Crimi-
nology, Vol. 27, No. 3 (1989) 511-535.
Kleck, Gary. “Racial Discrimination in Criminal Sentencing:A Critical
Evaluation of the Evidence with Additional Evidence on the Death Pen-
alty.” American SociologicalReview, Vol. 46 (1981) 783805.
Klein, Stephen, Allen Abrahamse, and John Rolph. “Racial Equity in
Prosecutor Requestsfor the Death Penalty.” Unpublished manuscript,
The Rand Corporation (1987).
Klein, Stephen. “Relationship of Offender and Victim Raceto Death Pen-
alty Sentencesin California.” Unpublished manuscript, The Rand Corpo-
ration (1989).
Klemm, Margaret F. “The Determinants of Capital Sentencingin Louisi-
ana, 19751984.” Dissertation, University of New Orleans (1986).

Lewis, Peter, Henry Mannle, and Harold Vetter. “A Post-Furman Profile
of Florida’s Condemned-AQuestion of Discrimination in Terms of Race
of the Victim and a Comment on Spenkelink v. Wainwright.” Stetson
Law Review, Vol. IX, No. 1 (1979) l-46.
Murphy, Elizabeth. “The Application of the Death Penalty in Cook
County.” Illinois Bar Journal, Vol. 93 (1984) 90-95.
Nakell, Barry and Kenneth Hardy. The Arbitrariness of the Death Pen-
alty. Philadelphia: Temple University Press, 1987.
Paternoster, Raymond and Ann Marie Kazyaka. “The Administration of
the Death Penalty in South Carolina: Experiences Over the First Few
Years.” South Carolina Law Review, Vol. 39, No. 2 (1988) 245-414.
Radelet, Michael and Margaret Vandiver. “The Florida Supreme Court
and Death Penalty Appeals.” Journal of Criminal Law and Criminology,
Vol. 74, No. 3 (1983) 913-926.

Page 11                            GAO/GGD-90-57Racial Disparities in Sentencing
Appendix I
List of Studies

Radelet, Michael and Glenn Pierce. “Race and Prosecutorial Discretion in
Homicide Cases.”Law and Society Review, Vol. 19, No. 4, (1985) 687-
Radelet, Michael. “Racial Characteristics and the Imposition of the
Death Penalty.” American SociologicalReview, Vol. 46, (1981) 918-927.
Riedel, Marc. “Discrimination in the Imposition of the Death Penalty: A
Comparison of the Characteristics of Offenders SentencedPre-Furman
and Post-Furman.” Temple Law Quarterly, Vol. 49, No. 2 (1976) 261-
Smith, Dwayne M. “Patterns of Discrimination in Assessmentsof the
Death Penalty: The Caseof Louisiana.” Journal of Criminal Justice, Vol.
15 (1987) 279-286.
Vito, Gennaro and Thomas Keil. “Capital Sentencingin Kentucky: An
Analysis of the Factors Influencing Decision Making in the Post-Gregg
Period.” The Journal of Criminal Law & Criminology, Vol. 79, No. 2
(Summer 1988) 483-508.
Zeisel. Hans. “Race Bias in the Administration of the Death Penalty: The
Florida Experience.” Harvard Law Review, Vol. 95, No. 2 (December
1981) 456-468.

Page 12                            GAO/GGD-90-57Racial Disparities in Sentencing

I Appeidix II

 M$jor Contributors to This &port

      ; Government
 General                 Harriet C. Ganson, Analyst-in-Charge
 Division, Washington,   Lisa Cassady, Social ScienceAnalyst
 D.Ci                    Jam es L. Frem m ing, Consultant -
                         Douglas M . Sloane, Statistical Consultant

  (131810)               Page 13
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