Between 1970 and 1977, the US Supreme Court struck down the death penalty, with three justices specifically singling out racial bias against blacks as a concern. Currently, minorities are over-represented on death row compared to their share in the US population. Laura Argys and Naci Mocan examine the entire population of inmates of death from since the return of the death sentence in 1977 to see what types of discrimination exists for those who have already been sentenced to death. Only race played a role in the probability of being executed. However, when analyzing probabilities of a pardon vs. execution, the authors found discrimination appeared for race, sex, age, education, length on death row and personal characteristics of the governor.
The information on death row inmates came from the US Department of Justice’s Capital Punishment in the United States, 1973-1997. On the 5779 inmates on death row between 1977 and 1997, the data includes personal characteristics like race, sex and criminal history. The authors also use cultural and socio-economic characteristics of the state the criminal is housed in such as religious composition, unemployment and urbanization rates.
Studying the probability of execution in any given year, Argys and Mocan find little evidence of discrimination. The longer an inmate is on death row, the probability of an execution increases, but each year the chance increase isn’t as big as the year before. Only being black reduces the probability of being executed, which is not surprising considering 84% of black inmates on death row are removed for other reasons that execution. The authors conjecture that that most of the discrimination occurs during the trial. Past research has shown that those with more money, also linked with race possibly, have more means to appeal.
Although execution may have little discrimination, who receives a pardon from the governor is another situation where discrimination could arise. Many of the characteristics the authors looked at in probability of execution in any year which showed no signs of discrimination such as sex, age, education, and characteristics of the governor. Yet, for the probability of receiving clemency from the governor, these traits became important. Again race is a factor, but for pardon vs. execution, minorities are more likely to get the pardon than a white person. Even though crimes are equally as vicious, women are more prone to clemency than men. The older a person is when sentenced to death, the less likely he is to receive a pardon. The more education an inmate has, the less likely he is to obtain a pardon.
Although no evidence shows that the governors of the state are more lenient towards a particular race, if a death row inmate’s governor is white, he is 55% less likely to acquire a pardon. Yet, a female governor is 34% more probable to give clemency. For pardons around election time, the evidence illustrates no discrimination during election time vs. no election years. Interestingly, a lame duck governor, or a governor who lost the election or is leaving the position, is 46% more likely to grant clemency.
The authors find this substantiation of discrimination on traits unrelated to the case disheartening. The well-known saying “equal justice under the law” does not hold.
Having read numerous papers on discrimination in different settings, I found this paper had some surprising results. The fact that age and education are negatively correlated with receiving clemency shows that the appearance of knowing more hurts prisons. Those with more education should be smarter and thus the crime seems more premeditated. Those that are older should know better. The semblance of innocence through idiocy or lack of experience is lost. Age and education are too obvious of evidence for juries that criminals have brains. Those that have no education or are younger can play the part of the unknowing idiot more easily.
The authors mention that death row data before 1968 was not well documented. Even though they mention this, I would love to see how things have changed after the legal process changed (when the trial and sentencing were separated) and the laps of the death penalty usage in the 70s. With so many executions in the 30s and 40s, other patterns could be revealed that might shed light on today’s trends. Maybe the type of crimes people are dying for is changing, or that more educated people are committing more heinous crimes than the uneducated.