Tuesday, May 17, 2005

More on the Death Penalty--Does Our Obsession With Race Blind Us to Other Causes of Injustice

Sentencing Law and Policy points out quite correctly that the A.P. study shows more than the effects of race on the death penalty. However, because of our fixation on race, there is less focus than there should be on identifying the most important causes of unfair outcomes in capital cases and resolving them first.

For example, Sentencing Law and Policy links to the Death Penalty Information Center ("DPIC"), which has several studies, including one on the death penalty in Philadelphia. The results are troubling, but at least from what is reported, they are very incomplete, and because of their focus on race, possibly miss important root causes.

For me, one of the most overlooked factors is money. A few examples. It seems uncontroversial to suggest that the quality of a defendant's lawyer affects the outcome in a capital case. Further, and with all very due respect to hard working, skilled and well meaning public defenders and appointed counsel, it is not hard to imagine that in general, a skilled retained lawyer, with sufficient resources fully to defend a case, will be more likely to avoid a death sentence for his or her client. If my assumptions are true (I do not have the data, and would welcome a link to some), then wealth (both individual and family) is going to correlate to outcome in capital cases.

Further, if we assue that African-American defendants are less likely to be able to afford retained counsel than Caucasian defendants (I think this is a reasonable assumption--for the population in general, the average household income for an African-American family is lower than the average for a Caucasian family, it is a stretch, but not an unreasonable one, to assume that the same is true of the subset of those groups that are defendants in capital cases), then at least some of the effect shown in these studies is not racism, it is race acting as a proxy for wealth. Without parsing out which is the greater effect, it is possible that we are focusing on the wrong thing. Maybe instead of accusing District Attorneys of being racist (and the DPIC comes perilously close to doing just that in their comments on the race of decision makers in death penalty cases) there should be more focus on funding public defenders in capital cases (or, indeed, in all cases).

The list goes on. How do we control for things like the education and class of the defendant? These things surely go to how the defendant is viewed by the jury, but are neither easily quantified and analyed nor, more important, corrected for. What about the crime rate and the level of crime in the neighborhood where the murder took place? How do we control for what could be jurors' fear of crime in their neighborhood or (tragically) acceptance of crime in other neighborhoods? Finally, as Sentencing Law and Policy points out, how do you account for local decisions on capital cases driven by considerations such as a county's ability to pay the increased costs of capital trials?

Does all of this mean that race is not a factor in decisions in capital cases or that studies such as the A.P.'s recent study or the studies referred to by DPIC are worthless? Of course not. It does mean that instead of trying to make the death penalty mostly about race, we should look more closely and analytically at the factors that go into disparate outcomes and go about adressing the most important factors first.

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