GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

1998

Status

Accepted

Abstract

This article examines the effect of the race of the victim on legal decision making in capital and non-capital criminal cases. A large body of research on race and capital sentencing indicates that the crime victim's race affects the prosecutor's decision to seek, and the jury's decision to recommend, the death penalty. The most well known of these is undoubtedly the Baldus study, which provided the data underlying the defendant's challenge to the Georgia death penalty regime in McCleskey v. Kemp. Less well known are empirical analyses conducted since the Supreme Court rejected McCleskey's challenge. The article reviews several of these studies, virtually all of which find the victim's race continues to matter to death penalty sentencing. The author also reviews the results of experiments on jury decisionmaking in non-capital cases, which reach conflicting results on the significance of juror-victim racial similarity and guilt attribution. Although an experimental design allows researchers to hold constant every variable other than race, the juries in these experiments often differ significantly from real world juries, thereby limiting the confidence one may have in the applicability of those results outside the laboratory. The article concludes by noting where additional study would be useful.

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