Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

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California Parole May Be Broken, But Federal Courts Cannot Fix It

By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.”  According to the California Supreme Court, the statute requires that there be ”some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.”  As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case. 

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point. 

Continue ReadingCalifornia Parole May Be Broken, But Federal Courts Cannot Fix It

Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

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