Document Type

Article

Publication Date

Summer 2004

Keywords

Capital punishment, Death penalty, Capital sentencing, McCleskey v. Kemp, Racial bias in capital cases, Racial attitudes of capital defense lawyers, Empirical legal studies, Implicit Association Test, IAT, Race IAT, Implicit racial attitudes

Disciplines

Applied Statistics | Criminal Law | Legal Profession

Abstract

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court concluded that strong, well-controlled statistical correlations with race do not demonstrate causation, half of all Americans believe that race does influence the administration of the death penalty

In investigating the influence of racial bias, commentators (ourselves included) have focused on prosecutors and jurors, generally neglecting the question of whether bias affects the representation defense counsel provides his or her client. What do we know about the capital defense lawyer's racial attitudes?

Nothing. Virtually nothing is known about the racial attitudes of lawyers in general, let alone defense lawyers or capital defense lawyers specifically. The demographic characteristics, compensation patterns, career paths, and occasionally the daily activities of lawyers are studied, but researchers to date have expressed little interest in their attitudes, with the exception of attitudes concerning job satisfaction.

In contrast, quite a lot is known about the racial attitudes of the general population. The prevalence of hostile, overt racism has been declining at least since the 1960s. For the most part, however, old-fashioned, "Bull Connor-style" racism has not been replaced with colorblindness but with subtler manifestations of racial bias. Some social psychologists have labeled this newer racism "aversive racis[m]," documenting the prevalence of subjects who subscribe to a formal norm of equality, but desire to keep their distance from other racial groups, and often covertly disparage those groups. Cognitive psychologists have focused more on stereotypes, observing how thinking and judgment may be altered by stereotypes that the subject would not endorse, and often consciously rejects.

Both of these (related) conceptions of modern racism raise the troubling possibility that defense counsel, who are charged with undivided loyalty to their clients, and presumed to serve as a shield against racial bias on the part of other criminal justice system actors, may in fact experience both compromised loyalty and judgment when they serve African-American or Latino clients. On the other hand, perhaps capital defense attorneys, either by self-selection or by training, are different than the rest of the population in this regard. This Article describes preliminary data suggesting that they are not.

Publication Citation

Published in: DePaul Law Review, vol. 53, no. 4 (Summer 2004).

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