Devaluing death: An empirical study of implicit racial bias on jury-eligible citizens in six death penalty states

New York University Law Review

Volumn 89, Issue 2, 2014, Pages 513-581

  Levinson, Justin D ^a   Smith, Robert J ^b   Young, Danielle M ^c  

^a University of Hawaii William S Richardson School of Law   (United States)

^b UNIVERSITY OF NORTH CAROLINA   (United States)

^c RUTGERS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84899768393     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (354)

1. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
2. From Lynch Mobs to the Killing State: Race and the Death Penalty in America 1 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2006) ("[T]here is a long and deep connection between this country's racial politics and its uses of the killings of African-Americans through lynchings and the death penalty.... ").
3. Randall Kennedy, Race, Crime, and the Law (1997) (addressing the ideological gap where race and criminal law intersect, the historical causes for a suspicious perception of the criminal justice system by African Americans who have also fought to suppress racial injustice and implicit racial targeting for particular crimes).
4. see also Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide, 53 DePaul L. Rev. 1557, 1559 (2004).
5. See Charles J. Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 81 Or. L. Rev. 15, 21-22 (2002) (discussing scholarship by sociologists on the practice of lynchings in the first half of the twentieth century).
6. See, e.g., David C. Baldus et al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis 2 (1990) [hereinafter Baldus et al., Equal Justice] ("[A]lthough the levels of arbitrariness and racial discrimination in capital sentencing have declined in the post-Furman [v. Georgia] period, none of these promises have been fulfilled.
7. Moreover, given the Supreme Court's decision in McCleskey v. Kemp, little improvement in this regard appears likely. ").
8. Samuel R. Gross & Robert Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing, at xiii (1989) ("The Supreme Court has more or less acknowledged that race continues to play a major role in capital sentencing in America.... But the Court has decided to do nothing about this form of discrimination and to refuse to hear future claims based on it. ").
9. See generally U.S. Gen. Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, GAO/GGD 90-57 (1990) (finding a greater likelihood that a defendant would be charged with capital murder or receive the death penalty if the victim was White, rather than Black, as opposed to an outcome influenced by the race of defendant).
10. David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004) [hereinafter Baldus & Woodworth, Legitimacy] (recognizing the difference between public perception of race discrimination in the death penalty, a pre-Furman pattern, to diverge from the post-Furman reality, where discrimination is not necessarily inevitable).
11. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
12. Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991, 20 Am. J. Crim. Just. 17, 30 (1995) (controlling for relevant factors, "Blacks who killed Whites were more likely to be charged with a capital offense and to receive a death sentence").
13. See Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, 39 Colum. Hum. Rts. L. Rev. 34, 40 n.21 (2007) ("Most of the studies find that the race of the victim is the principal determiner of sentence: killers of white victims are far more likely to be sentenced to death than killers of African-American victims. ").
14. John Blume, Theodore Eisenberg & Martin T. Wells, Explaining Death Row's Population and Racial Composition, 1 J. Empirical Legal Stud. 165, 167 (2004) (examining the composition of the death rows in eight states and finding that "[t]he different death sentence rates for black defendant-black victim cases and black defendant-white victim cases confirm the well-known race-of-victim effect").
15. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
16. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
17. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
18. see also G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal Death Penalty, 85 Wash. L. Rev. 425, 445-61 (2010).
19. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
20. But see Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1554 (2004) (questioning whether implicit racial bias influences trial judge decisionmaking).
21. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
22. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
23. For a summary of implicit bias social science research, see Justin D. Levinson, Danielle M. Young & Laurie A. Rudman, Implicit Racial Bias: A Social Science Overview, in Implicit Racial Bias Across the Law, at 9 [hereinafter Levinson et al., A Social Science Overview].
24. Mahzarin R. Banaji, Implicit Attitudes Can Be Measured, in The Nature of Remembering: Essays in Honor of Robert G. Crowder 117, 123 (Henry L. Roediger III et al. eds., 2001).
25. Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4 (1995).
26. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
27. see also Joshua Correll et al., Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot, 92 J. Personality & Soc. Psychol. 1006, 1009 (2007) (hypothesizing that "practice enables police officers to more effectively exert control over their behavioral choices (relative to untrained civilians)" to shoot or not shoot).
28. Joshua Correll et al., The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1315 (2002) ("The primary goal of the current research was to... investigat[e] the effect of a target's ethnicity on [the study] participants' decision to 'shoot' that target. ").
29. Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4 (1995).
30. See Laurie A. Rudman & Richard D. Ashmore, Discrimination and the Implicit Association Test, 10 Group Processes & Intergroup Rel. 359, 365-67 (2007) (finding that implicit stereotypes predicted the allocation of funding to specific groups).
31. See Alexander R. Green et al., Implicit Bias Among Physicians and Its Prediction of Thrombolysis Decisions for Black and White Patients, 22 J. Gen. Internal Med. 1231 (2007) (finding that as the degree of implicit bias increased in physicians, recommendations for thrombolysis treatment decreased).
32. See Jens Agerstršm & Dan-Olof Rooth, The Role of Automatic Obesity Stereotypes in Real Hiring Discrimination, 96 J. Applied Psychol. 790 (2011) (examining hiring managers' decisions to invite or not invite obese persons for interviews less frequently than normal-weight persons).
33. Dan-Olof Rooth, Automatic Associations and Discrimination in Hiring: Real World Evidence, 17 Labour Econ. 523 (2010) (finding employers less likely to invite men with Arab-Muslim sounding names for callback interviews than Swedishsounding names).
34. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
35. Lucy Adams, Comment, Death by Discretion: Who Decides Who Lives and Dies in the United States of America?, 32 Am. J. Crim. L. 381, 389-90 (2005).
36. see also Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 Wm. & Mary L. Rev. 2083, 2099-106 (2004) (considering the extreme deference given to prosecutors).
37. Rory K. Little, What Federal Prosecutors Really Think: The Puzzle of Statistical Race Disparity Versus Specific Guilt, and the Specter of Timothy McVeigh, 53 DePaul L. Rev. 1591, 1599-600 (2004) (addressing "unconscious race empathy" that White prosecutors may have with White defendants or White victims).
38. Jeffrey J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811, 1819 (1998) (alluding to unconscious biases produced due to similarities between prosecutors and victims).
39. Yoav Sapir, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. Blackletter L.J. 127, 140-41 (2003) ("[It] is likely that unconscious racism influences a prosecutor even more than it affects others. ").
40. The states are Alabama, Arizona, California, Florida, Oklahoma, and Texas. These six states (and two others, South Carolina and Pennsylvania) were the most active death penalty states between 2004 and 2009. Robert J. Smith, The Geography of the Death Penalty and Its Ramifications, 92 B.U. L. Rev. 227, 231 n.8 (2012).
41. See, e.g., Edward J. Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California., 3 Woodrow Wilson J.L. 11, 13 (1981) [hereinafter Bronson, Exclusion of Scrupled Jurors] (replicating the same study in California, which shows "the exclusion of scrupled jurors... would tend to make the jury more conviction prone and less representative").
42. Edward J. Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1, 4 (1970) [hereinafter Bronson, Conviction Proneness] (evaluating "whether [Colorado] jurors favoring the death penalty are more conviction prone than those who oppose it" and whether excluding potential juries who are against the death penalty thus excludes "the poor, women, racial, ethnic, and religious groups").
43. Claudia L. Cowan et al., The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53, 54-55 (1984) (explaining how death-qualifying jurors are "unusually punitive" and lack proportional representation, which may have adverse consequences on a jury's deliberation).
44. Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31, 46-48 (1984) (death qualification excludes one-sixth of fair, impartial jurors and discriminates against women and Black jurors, who "[c]ompared to the death-qualified jurors... are more concerned with the maintenance of the fundamental due process guarantees of the Constitution, less punitive, and less mistrustful of the defense").
45. Craig Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121, 122 (1984) (analyzing whether the process of witnessing prospective jurors dismissed based on opposition to the death penalty creates biases in jurors' minds).
46. George L. Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567, 568 (1971) (conducting cognitive tests to assess the relationship between attitudes toward capital punishment and guilt determination).
47. William C. Thompson et al., Death Penalty Attitudes and Conviction Proneness: The Translation of Attitudes into Verdicts, 8 Law & Hum. Behav. 95, 109 (1984) (suggesting that "deathqualified jurors have a lower threshold of conviction than excludables").
48. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
49. See generally U.S. Gen. Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, GAO/GGD 90-57 (1990) (finding a greater likelihood that a defendant would be charged with capital murder or receive the death penalty if the victim was White, rather than Black, as opposed to an outcome influenced by the race of defendant).
50. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
51. But see Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1554 (2004) (questioning whether implicit racial bias influences trial judge decisionmaking).
52. These jurors would be excluded because they would not be willing to convict when death was a possible penalty or to impose the death penalty after a conviction.
53. But see Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1554 (2004) (questioning whether implicit racial bias influences trial judge decisionmaking).
54. But see Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1554 (2004) (questioning whether implicit racial bias influences trial judge decisionmaking).
55. 408 U.S. 238 (1972).
56. See Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, 39 Colum. Hum. Rts. L. Rev. 34, 40 n.21 (2007) ("Most of the studies find that the race of the victim is the principal determiner of sentence: killers of white victims are far more likely to be sentenced to death than killers of African-American victims. ").
57. See Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, 39 Colum. Hum. Rts. L. Rev. 34, 40 n.21 (2007) ("Most of the studies find that the race of the victim is the principal determiner of sentence: killers of white victims are far more likely to be sentenced to death than killers of African-American victims. ").
58. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
59. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
60. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
61. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
62. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
63. see also Furman v. Georgia, 408 U.S. 238, 303 (1972) (Brennan, J., concurring) (rejecting the claim that capital punishment is constitutional because it "satisfies the popular demand for grievous condemnation of abhorrent crimes and thus prevents disorder, lynching, and attempts by private citizens to take the law into their own hands").
64. G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65, 87 (2012) ("[T]he broad correlation between counties with high death sentencing rates today and counties that had multiple lynchings in the early 1900s justifies specific inquiry. ").
65. Carol S. Steiker & Jordan M. Steiker, Capital Punishment: A Century of Discontinuous Debate, 100 J. Crim. L. & Criminology 643, 646-62 (2010).
66. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
67. See David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 215 (2010) ("[T]he Court had intervened in a series of Southern cases in which violence and intimidation had produced death sentences that it regarded as a travesty of justice. ").
68. Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 422 (2009).
69. Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 422 (2009).
70. Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 422 (2009).
71. Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 422 (2009).
72. See Donald H. Partington, The Incidence of the Death Penalty for Rape in Virginia, 22 Wash. & Lee L. Rev. 43, 53 (1965) ("The execution statistics show that the total number of executions for rape in the states imposing the death penalty during all or some of the period, was 444.
73. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
74. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
75. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
76. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
77. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
78. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
79. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
80. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
81. See Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) ("The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. " (footnote omitted).
82. See Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) ("The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. " (footnote omitted).
83. See Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) ("The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. " (footnote omitted).
84. Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After Gregg: Only "The Appearance of Justice?, " 87 J. Crim. L. & Criminology 130, 140 (1996) (noting that more than thirty states passed similar safeguards, but that most of these states either perform perfunctory review or else have repealed proportionality/arbitrariness review altogether).
85. See, e.g., Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 357 (1995) (describing the Court's then twenty-year-old Gregg experiment and concluding that procedural regulation failed to satisfy its Eighth Amendment objectives).
86. 481 U.S. 279 (1987).
87. 481 U.S. 279 (1987).
88. 481 U.S. 279 (1987).
89. 481 U.S. 279 (1987).
90. 481 U.S. 279 (1987).
91. 481 U.S. 279 (1987).
92. 481 U.S. 279 (1987).
93. 481 U.S. 279 (1987).
94. 481 U.S. 299 (1987).
95. 481 U.S. 297 (1987).
96. 481 U.S. 279 (1987).
97. 481 U.S. 279 (1987).
98. 481 U.S. 279 (1987).
99. 481 U.S. 312 (1987).
100. 481 U.S. 313 (1987).
101. 481 U.S. 313 (1987).
102. 481 U.S. 313 (1987).
103. 481 U.S. 313 (1987).
104. 481 U.S. 313 (1987).
105. See David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1726 (1998) (finding that Black defendants are over nine times more likely to receive a sentence of death in a penalty trial than non-Black defendants with comparable levels of culpability).
106. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 384 (2006) (finding that the degree with which the offenders in the Philadelphia dataset possess stereotypically Afrocentric facial features predicts death-sentencing).
107. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
108. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
109. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
110. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
111. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
112. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
113. David C. Baldus et al., Evidence of Racial Discrimination in the Use of the Death Penalty: A Story from Southwest Arkansas (1990-2005) with Special Reference to the Case of Death Row Inmate Frank Williams, Jr., 76 Tenn. L. Rev. 555, 561, 573 (2009).
114. David C. Baldus et al., Evidence of Racial Discrimination in the Use of the Death Penalty: A Story from Southwest Arkansas (1990-2005) with Special Reference to the Case of Death Row Inmate Frank Williams, Jr., 76 Tenn. L. Rev. 555, 561, 573 (2009).
115. See Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 La. L. Rev. 647, 647-48, 659-60 (2011) (stating that between 1991 and 2001, 82.8% of homicide victims were Black, but that twelve of the twenty-three death sentence cases in the 1990-2008 study involved White victims).
116. Michael L. Radelet & Glenn L. Pierce, Race and Death Sentencing in North Carolina, 1980-2007, 89 N.C. L. Rev. 2119, 2123, 2145 (2011).
117. See U.S. Dep't of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), at 15-16 (2000), available at http://www.justice.gov/dag/ pubdoc/dpsurvey.html (finding that U.S. Attorneys recommended seeking the death penalty for Black defendants with Black victims 20% of the time, but for Black defendants with non-Black victims, 36% of the time).
118. See David C. Baldus et al., Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005), 101 J. Crim. L. & Criminology 1227, 1293 (2012) (finding that the aggravating effect of multiple victims is stronger when victims are White).
119. See David C. Baldus et al., Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005), 101 J. Crim. L. & Criminology 1227, 1293 (2012) (finding that the aggravating effect of multiple victims is stronger when victims are White).
120. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
121. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
122. Scott Phillips, Continued Racial Disparities in the Capital of Capital Punishment: The Rosenthal Era, 50 Hous. L. Rev. 131, 146-47 (2012) (finding race-of-defendant effects in Harris County, Texas).
123. 433 U.S. 584, 592 (1977).
124. See generally Stuart Banner, The Death Penalty: An American History (2002) (tracing the changes in the death penalty, from the category of crimes considered capital offenses, arguments for and against capital punishment, and the varied methods of execution).
125. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
126. See Felony Defendants, Bureau of Justice Statistics, http://www.bjs.gov/index. cfm?ty=qa&iid=405 (last visited Mar. 27, 2014) (noting that 95% of felony convictions occurred through a guilty plea).
127. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
128. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
129. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
130. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
131. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
132. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
133. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
134. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
135. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
136. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
137. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
138. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
139. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
140. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
141. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
142. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
143. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
144. Joe Soss, Laura Langbein & Alan R. Metelko, Why Do White Americans Support the Death Penalty?, 65 J. Pol. 397, 414 (2003).
145. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
146. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
147. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
148. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
149. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
150. Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1260 (2013).
151. Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1260 (2013).
152. Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1260 (2013).
153. Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1260 (2013).
154. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
155. See David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 215 (2010) ("[T]he Court had intervened in a series of Southern cases in which violence and intimidation had produced death sentences that it regarded as a travesty of justice. ").
156. See David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 215 (2010) ("[T]he Court had intervened in a series of Southern cases in which violence and intimidation had produced death sentences that it regarded as a travesty of justice. ").
157. See David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 215 (2010) ("[T]he Court had intervened in a series of Southern cases in which violence and intimidation had produced death sentences that it regarded as a travesty of justice. ").
158. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
159. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
160. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
161. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
162. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
163. See Elise C. Boddie, Racial Territoriality, 58 UCLA L. Rev. 401, 438-42 (2010) (discussing the connection between spatial domains and implicit racial bias).
164. See McCleskey v. Kemp, 481 U.S. 279, 287 (1987) ("Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims.
165. Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984) (finding "remarkably stable and consistent" race-of-victim effects "in the imposition of the death penalty under post-Furman statutes in the eight states [that the authors] examined" and explaining that the "legitimate sentencing variables that [they] considered could not explain these disparities, whether [they] controlled for these variables one at a time, organized them into a scale of aggravation, or used multiple regression analysis").
166. Michael L. Radelet & Glenn L. Pierce, Race and Death Sentencing in North Carolina, 1980-2007, 89 N.C. L. Rev. 2119, 2123, 2145 (2011).
167. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
168. Michael L. Radelet & Glenn L. Pierce, Race and Death Sentencing in North Carolina, 1980-2007, 89 N.C. L. Rev. 2119, 2123, 2145 (2011).
169. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
170. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).
171. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
172. See William J. Bowers, Marla Sandys & Thomas W. Brewer, Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing when the Defendant Is Black and the Victim Is White, 53 DePaul L. Rev. 1497, 1531 (2004) (discussing statistical evidence of racial disparities in capital jurors' perceptions of Black defendants' dangerousness, remorse, and emotional disturbance).
173. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
174. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
175. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
176. see also Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting).
177. See, e.g., Kelly v. California, 555 U.S. 1020, 1021 (2008) (Stevens, J., statement respecting the denial of certiorari) (describing a twenty-minute video the prosecution presented as victim impact evidence in one of the consolidated cases before the Court).
178. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
179. 428 U.S. 280, 303-04 (1976).
180. See Robert J. Smith et al., The Failure of Mitigation, 65 Hastings L.J. (forthcoming 2014) (manuscript at 8) (on file with the New York University Law Review) (finding that eighty-seven percent of executed offenders fall into at least one mitigation category: intellectual disability, youthfulness, mental illness, or childhood trauma).
181. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
182. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
183. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
184. G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65, 87 (2012) ("[T]he broad correlation between counties with high death sentencing rates today and counties that had multiple lynchings in the early 1900s justifies specific inquiry. ").
185. See Kennedy v. Louisiana, 554 U.S. 407 (2008) (barring capital punishment for the rape of a child).
186. Roper v. Simmons, 543 U.S. 551 (2005) (barring the death penalty for juvenile offenders).
187. Kennedy, 554 U.S. at 441.
188. Kennedy, 554 U.S. at 441.
189. Kennedy, 554 U.S. at 441.
190. see also Baze v. Rees, 553 U.S. 35, 79 (2008) (Stevens, J., concurring in judgment) ("Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders. In the absence of such evidence, deterrence cannot serve as a sufficient penological justification.... ").
191. The Court considers the retributive benefit of the death penalty when exercising its "independent judgment" as part of every Eighth Amendment capital proportionality case. See, e.g., Kennedy, 554 U.S. at 442, 446 (discussing retribution as a factor in the Court's "independent judgment").
192. Roper, 543 U.S. at 571 ("Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. ").
193. 554 U.S. at 420.
194. 554 U.S. at 420.
195. 554 U.S. at 420.
196. Gregg, 428 U.S. at 183 (plurality opinion).
197. Furman v. Georgia, 408 U.S. 238, 308 (1972) (Stewart, J., concurring).
198. John Paul Stevens, On the Death Sentence, 57 N.Y. Rev. Books, Dec. 23, 2010, at 8, 14.
199. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
200. See Uttecht v. Brown, 551 U.S. 1, 9 (2007).
201. Wainwright v. Witt, 469 U.S. 412, 424 (1985).
202. Morgan v. Illinois, 504 U.S. 719, 729 (1992) (finding that jurors who will not consider a sentence other than death are excludable for cause).
203. Morgan, 504 U.S. at 728-29.
204. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) ("[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. ").
205. See Wainwright, 469 U.S. at 424 (the precise standard is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath" (internal quotations omitted).
206. See Lockhart v. McCree, 476 U.S. 162, 166 (1986) (noting that prospective jurors who state that they cannot vote for the imposition of death under any circumstances are removed by the trial judge for cause during voir dire).
207. Edward J. Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1, 4 (1970) [hereinafter Bronson, Conviction Proneness] (evaluating "whether [Colorado] jurors favoring the death penalty are more conviction prone than those who oppose it" and whether excluding potential juries who are against the death penalty thus excludes "the poor, women, racial, ethnic, and religious groups").
208. Edward J. Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1, 4 (1970) [hereinafter Bronson, Conviction Proneness] (evaluating "whether [Colorado] jurors favoring the death penalty are more conviction prone than those who oppose it" and whether excluding potential juries who are against the death penalty thus excludes "the poor, women, racial, ethnic, and religious groups").
209. Claudia L. Cowan et al., The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53, 54-55 (1984) (explaining how death-qualifying jurors are "unusually punitive" and lack proportional representation, which may have adverse consequences on a jury's deliberation).
210. Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31, 46-48 (1984) (death qualification excludes one-sixth of fair, impartial jurors and discriminates against women and Black jurors, who "[c]ompared to the death-qualified jurors... are more concerned with the maintenance of the fundamental due process guarantees of the Constitution, less punitive, and less mistrustful of the defense").
211. William C. Thompson et al., Death Penalty Attitudes and Conviction Proneness: The Translation of Attitudes into Verdicts, 8 Law & Hum. Behav. 95, 109 (1984) (suggesting that "deathqualified jurors have a lower threshold of conviction than excludables").
212. See Brooke Butler & Gary Moran, The Impact of Death Qualification, Belief in a Just World, Legal Authoritarianism, and Locus of Control on Venirepersons' Evaluations of Aggravating and Mitigating Circumstances in Capital Trials, 25 Behav. Sci. & L. 57, 61 (2007) ("Specifically, legal authoritarians are more likely to feel that the rights of the government outweigh the rights of the individual with respect to legal issues. Legal authoritarianism has been found to predict verdicts in both capital and non-capital criminal cases.... "(citation omitted).
213. See Charles Ogletree, Robert J. Smith & Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law, at 45, 48 (noting that "Black citizens are often associated with violence, dangerousness, and crime" and detailing social science findings that demonstrate such associations).
214. G. Ben Cohen & Robert J. Smith, The Death of Death-Qualification, 59 Case W. Res. L. Rev. 87, 99 n.54 (2008) ("Measuring the community's sentiment concerning a specific punishment by gathering a venire, removing from the venire all people opposed to a punishment, and then taking the temperature of the remaining citizens... [is] like assessing the impact of global warming by taking the temperature in a room with its airconditioning on. ").
215. See Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011 Mich. St. L. Rev. 573, 577 (2011) (noting that "[s]everal recent studies have documented racial bias against Black defendants, apart from the interactive effect that the race of defendant has with the race of victim" and indicating that race-of-defendant bias is "especially likely to operate in the juries' penalty phase decision making").
216. See Brooke Butler & Adina W. Wasserman, The Role of Death Qualification in Venirepersons' Attitudes Toward the Insanity Defense, 36 J. Applied Soc. Psych. 1744, 1745-46 (2006) (noting that jurors who pass the Wainwright test are more likely to be, inter alia, White than excluded jurors).
217. Brooke Butler has indeed found that death-qualified jurors are more likely than excluded jurors to believe that discrimination against Blacks is no longer a problem. Brooke Butler, Death Qualification and Prejudice: The Effect of Implicit Racism, Sexism, and Homophobia on Capital Defendants' Right to Due Process, 25 Behav. Sci. & L. 857, 865 (2007).
218. See Charles Ogletree, Robert J. Smith & Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law, at 45, 48 (noting that "Black citizens are often associated with violence, dangerousness, and crime" and detailing social science findings that demonstrate such associations).
219. see also Samuel R. Bagenstos, Implicit Bias, "Science, " and Antidiscrimination Law, 1 Harv. L. & Pol'y Rev. 477, 477 (2007) (describing the use of psychological research on implicit bias by scholars in the field of antidiscrimination law).
220. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol'y Rev. 149, 151-58 (2010) (providing a federal judge's perspective on implicit bias).
221. Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005) (introducing implicit bias research to legal scholars generally, and applying it to the communications law and policy context).
222. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1164 (1995) (introducing the concept of unconscious discrimination to the employment discrimination realm).
223. Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471, 480, 536-49 (2008) (discussing implicit bias in the context of sexual orientation bias).
224. Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007) [hereinafter Levinson, Forgotten Racial Equality] (arguing that judges and juries remember and misremember case facts in racially biased ways).
225. Justin D. Levinson, SuperBias: The Collision of Behavioral Economics and Implicit Social Cognition, 45 Akron L. Rev. 591, 593 (2012) (claiming that the behavioral law and economics decision model overlooks the role of implicit biases).
226. See, e.g., Antony Page & Michael J. Pitts, Poll Workers, Election Administration, and the Problem of Implicit Bias, 15 Mich. J. Race & L. 1 (2009) (arguing that poll workers rely on implicit bias in interacting with voters).
227. Antony Page, Unconscious Bias and the Limits of Director Independence, 2009 U. Ill. L. Rev. 237, 250 (2009) (focusing on a range of cognitive biases, including automatic in-group preference).
228. Robert G. Schwemm, Why Do Landlords Still Discriminate (and What Can Be Done About It)?, 40 J. Marshall L. Rev. 455, 500-07 (2007) (considering how implicit bias may help to explain continued housing discrimination).
229. Eric K. Yamamoto & Michele Park Sonen, Reparations Law: Redress Bias?, in Implicit Racial Bias Across the Law, at 244, 245-46 (critiquing reparations discourse for overlooking harms done to women of color due to implicit bias).
230. Susan K. Serrano & Breann Swann Nu'uhiwa, Federal Indian Law: Implicit Bias Against Native Peoples as Sovereigns, in Implicit Racial Bias Across the Law, at 209, 210-11.
231. Dorothy A. Brown, Tax Law: Implicit Bias and the Earned Income Tax Credit, in Implicit Racial Bias Across the Law, at 165.
232. Justin D. Levinson, Corporations Law: Biased Corporate Decision-Making?, in Implicit Racial Bias Across the Law, at 146.
233. See, e.g., L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035 (2011) (claiming that police behavior may be best explained by implicit racial bias rather than conscious animus).
234. L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Ind. L.J. 1143 (2012) (arguing that the "reasonable suspicion" standard for stop and frisk does little to eliminate problems of implicit bias).
235. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 384 (2006) (finding that the degree with which the offenders in the Philadelphia dataset possess stereotypically Afrocentric facial features predicts death-sentencing).
236. Phillip Atiba Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 304 (2008) (showing evidence of a bidirectional association between a Black individual and an ape).
237. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
238. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
239. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
240. Jeffrey J. Rachlinski et al., Does Unconscious Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1197 (2009) (finding that trial judges hold implicit racial biases).
241. But see Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1554 (2004) (questioning whether implicit racial bias influences trial judge decisionmaking).
242. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
243. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
244. We do not mean to exclude other areas, such as policing, prosecutorial discretion, judicial decisions, and parole decisions, but focus on topics connected to our jury-related hypotheses. For more on implicit bias and prosecutorial discretion, see Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012).
245. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
246. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
247. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
248. We build mainly on the acclaimed Story Model of juror decisionmaking, developed by Nancy Pennington and Reid Hastie in a series of articles. See Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 Cardozo L. Rev. 519, 520-21 (1991) [hereinafter Pennington & Hastie, A Cognitive Theory] ("[T]he Story Model includes three component processes: (1) evidence evaluation through story construction, (2) representation of the decision alternatives by learning verdict category attributes, and (3) reaching a decision through the classification of the story into the best fitting verdict category.... ").
249. Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. Personality & Soc. Psychol. 189, 189-90 (1992) [hereinafter Pennington & Hastie, Explaining the Evidence] (same).
250. Nancy Pennington & Reid Hastie, Practical Implications of Psychological Research on Juror and Jury Decision Making, 16 Personality & Soc. Psychol. Bull. 90, 95 (1990) (same).
251. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
252. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
253. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
254. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
255. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
256. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
257. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
258. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
259. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
260. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
261. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
262. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
263. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
264. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
265. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
266. Justin D. Levinson, Huajian Cai & Danielle Young, Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 204 (2010).
267. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
268. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
269. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
270. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
271. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
272. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
273. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
274. Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192, 192-93 (Reid Hastie ed., 1993) [hereinafter Pennington & Hastie, The Story Model] (same).
275. See Estelle v. Williams, 425 U.S. 501, 503 (1976) ("The presumption of innocence... is a basic component of a fair trial under our system of criminal justice. ").
276. Scott E. Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L.J. 457, 458 (1989).
277. Danielle M. Young et al., Innocent Until Primed: Mock Jurors' Racially Biased Response to the Presumption of Innocence, Plos One (forthcoming 2014) (on file with the New York University Law Review).
278. The instructions were based upon Ninth Circuit Jury Instructions Committee, Manual of Model Criminal Jury Instructions, U.S. Cts. for the Ninth Circuit (July 2010), http://www3.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/Criminal_ Jury_Instructions_2014_02.pdf.
279. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
280. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
281. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 384 (2006) (finding that the degree with which the offenders in the Philadelphia dataset possess stereotypically Afrocentric facial features predicts death-sentencing).
282. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 384 (2006) (finding that the degree with which the offenders in the Philadelphia dataset possess stereotypically Afrocentric facial features predicts death-sentencing).
283. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
284. At least 75 participants from each state completed the study, with 478 participants in total. The numbers ranged from a minimum of 75 participants in Alabama to a maximum of 82 participants in Florida. Participants who were ineligible to serve as jurors because they were not U.S. citizens (N = 2) or had been previously convicted of a felony (N = 27) were removed from the data. Similarly, data was excluded for participants who were not from the targeted states (N = 4).
285. These participants were part of a national database maintained by the private survey company.
286. they received minimal compensation for participating. Because the participants had chosen to receive survey solicitations from the soliciting company, the participant pool was not a random sample of the entire population. Nonetheless, as our reported statistics suggest, the diversity of the sample was notable.
287. These were groups that were not listed on the checklist the survey instrument provided. Some of the participants who were in this category separately indicated their ethnic identity on a line next to the check mark, including participants who checked one or more of the listed ethnicities in addition to marking "other. " The groups identified by those who marked "other" included Koreans, Samoans, Vietnamese, North Africans, Portuguese, Puerto Ricans, and others.
288. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) (holding that prospective jurors may be excluded if their personal views prevent them from following the law on capital punishment).
289. There were two conditions based on the race of defendant and two conditions based on the race of victim, known as a 2 * 2 study design. Each participant therefore read about either a White or Black defendant and a White or Black victim (thus, there were four possible conditions). Participants were randomly assigned to one of the four conditions.
290. Participants who answered that they would automatically vote for the death penalty (N = 53) were similarly not treated as death qualified and were removed from statistical analyses that concerned only death-qualified jurors.
291. See State v. Williams, 22 So. 3d 867, 872-74 (La. 2009) (describing the facts of the case, which involved a defendant accused of fatally shooting a police officer who confronted him for shoplifting).
292. These slides are attached as Appendix C.
293. The jurors were not presented with any aggravating or mitigating evidence.
294. This was substantially similar to a portion of the actual victim impact statement given at trial.
295. Appendix B contains this complete testimony.
296. Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4 (1995).
297. The stimuli words used for positive stereotypes were "ambitious, " "industrious, " "successful, " "calm, " "trustworthy, " "ethical, " and "lawful. " The stimuli words used for negative stereotypes were "lazy, " "shiftless, " "unemployed, " "hostile, " "dangerous, " "threaten, " and "violent. "
298. See John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in Prejudice, Discrimination, and Racism 91, 93-98 (John F. Dovidio & Samuel L. Gaertner eds., 1986) (defining the content and detailing the procedural aspects of the Modern Racism Scale, in contrast to older methods of measuring racism).
299. The stimuli words used for worth were "merit, " "worthwhile, " "worthy, " "value, " and "valuable. " The stimuli words used for worthless were "drain, " "expendable, " "worthless, " "waste, " and "valueless. "
300. See John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in Prejudice, Discrimination, and Racism 91, 93-98 (John F. Dovidio & Samuel L. Gaertner eds., 1986) (defining the content and detailing the procedural aspects of the Modern Racism Scale, in contrast to older methods of measuring racism).
301. See John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in Prejudice, Discrimination, and Racism 91, 93-98 (John F. Dovidio & Samuel L. Gaertner eds., 1986) (defining the content and detailing the procedural aspects of the Modern Racism Scale, in contrast to older methods of measuring racism).
302. A one-sample t-test tests whether a single population differs from a hypothesized value. See Ronald Christensen, Analysis of Variance, Design and Regression: Applied Statistical Methods 37-42 (1996) (explaining one-sample t-tests). In the case of the IAT, the hypothesized value is zero, or no bias. An IAT score that is significantly different from zero would indicate bias in the population. Thus, the one-sample t-test referenced here tested whether the study population's IAT score was significantly different than zero.
303. Generally ANOVA, or Analysis of Variance, is a series of statistical techniques that segment the observed variance in a dataset into the sources of variance, allowing for the comparison of the means between two or more groups. For example, is the variance in a sample (e.g., measured height) attributable to differences between two groups (such as Democrats and Republicans), or is it due to other, unexplained or unmeasured variation within the group (such as how much coffee they had this morning)? MANOVA is a special case of ANOVA that allows for the testing of several dependent variables while reducing Type 1 error, or the probability of finding a significant difference between groups when there is not a true difference. See Barbara G. Tabachnick & Linda S. Fidell, Using Multivariate Statistics 322-23 (4th ed. 2001) (describing the uses and advantages of MANOVA).
304. The regression controlled for the race and gender of the participant.
305. Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4 (1995).
306. 2 =.07. The results presented are for death-qualified jurors.
307. 2 =.08). We report the results here to demonstrate the trends in the data. The results reported are for death-qualified jurors.
308. 2) test of independence tests whether or not categorical variables are independent of each other. A. Aron & E. N. Aron, Statistics for Psychology 517 (2003). For example, in this case the chi-square test investigates if there is a relationship between gender and willingness to consider imposing the death penalty.
309. Due to our limited sample size, we combine jurors who would be excluded because they either could not vote to convict (traditionally called "nullifiers") or could not vote for death (traditionally called "Witherspoon excludables"). See Witherspoon v. Illinois, 391 U.S. 510, 520 (1968) (holding that jurors may be permissibly excluded for being unwilling to ever vote for a death sentence).
310. These two measures were moderately positively correlated (r(313) =.46, p <.001).
311. 2 =.04).
312. See Dawn Iacobucci, Mediation Analysis and Categorical Variables: The Final Frontier, 22 J. Consumer Psychol. 582, 589-93 (2012) (describing the use, advantages, and limitations of the zMediation method). We also used the distribution of the product to create confidence intervals for mediation effects. Those numbers are not reported here, but support the results of our zMediation analysis.
313. The direct effect of death qualification on value of life bias was, as in previous analyses, significant (B =.10, p =.04). As expected, the relationship between death qualification and the race of the individual (White/non-White) was significant (B =-1.01, SE =.29, p <.001), as was the relationship between race of the individual and value of life bias (B =.22, SE =.05, p <.001). Including the race of the individual in the model reduced the effect of death qualification to non-significance (B =.06, SE =.05, p =.18).
314. The direct effect of death qualification on stereotype bias was significant (B =.1, p =.05). The relationship between death qualification and race of the individual (White/non-White) was significant (B =-1.01, SE =.29, p <.001), as was the relationship between race of the individual and stereotype bias (B =.15, SE =.05, p =.006). Including race of the individual in the model reduced the effect of death qualification to non-significance (B =.08, SE =.05, p =.15).
315. The direct effect of death qualification on explicit racism was significant (B =.39, p <.001). The relationship between death qualification and race of the individual (White/non-White) was significant (B =-1.01, SE =.29, p <.001), as was the relationship between race of the individual and explicit bias (B =.43, SE =.11, p <.001). Including race of the individual in the model does not reduce the effect of death qualification to non-significance (B =.31, SE =.10, p =.002).
316. See Laurie A. Rudman & Richard D. Ashmore, Discrimination and the Implicit Association Test, 10 Group Processes & Intergroup Rel. 359, 365-67 (2007) (finding that implicit stereotypes predicted the allocation of funding to specific groups).
317. See Laurie A. Rudman & Richard D. Ashmore, Discrimination and the Implicit Association Test, 10 Group Processes & Intergroup Rel. 359, 365-67 (2007) (finding that implicit stereotypes predicted the allocation of funding to specific groups).
318. See Laurie A. Rudman & Richard D. Ashmore, Discrimination and the Implicit Association Test, 10 Group Processes & Intergroup Rel. 359, 365-67 (2007) (finding that implicit stereotypes predicted the allocation of funding to specific groups).
319. Phillip Atiba Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 304 (2008) (showing evidence of a bidirectional association between a Black individual and an ape).
320. Matthew D. Lieberman et al., An fMRI Investigation of Race-Related Amygdala Activity in African-American and Caucasian-American Individuals, 8 Nature Neuroscience 720, 722 (2005).
321. See generally Robert J. Smith, Justin D. Levinson & Zoe Robinson, Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism 1 (Jan. 25, 2014) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2385415 (arguing that "implicit white favoritism" operates throughout the criminal justice system).
322. See generally Robert J. Smith, Justin D. Levinson & Zoe Robinson, Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism 1 (Jan. 25, 2014) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2385415 (arguing that "implicit white favoritism" operates throughout the criminal justice system).
323. See James S. Liebman & Peter Clarke, David H. Bodiker Lecture on Criminal Justice: Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio St. J. Crim. L. 255, 272 (2012) (offering, for example, "Baltimore County, Maryland-the predominantly white, suburban donut that encircles the majority African-American Baltimore City").
324. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
325. We did not track whether study participants lived within a "donut jurisdiction".
326. our point here is that our findings are conceptually consistent with the spatial and cultural explanation. Further research is needed to test the proposition empirically.
327. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
328. Future research would be needed in this regard, as our regression did not significantly link this score to race-of-victim effects.
329. Claudia L. Cowan et al., The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53, 54-55 (1984) (explaining how death-qualifying jurors are "unusually punitive" and lack proportional representation, which may have adverse consequences on a jury's deliberation).
330. Samuel R. Gross, Determining the Neutrality of Death-Qualified Juries: Judicial Appraisal of Empirical Data, 8 Law & Hum. Behav. 7 (1984) (detailing the early academic and judicial critiques of death-qualified juries as conviction prone).
331. 476 U.S. 162 (1986).
332. 476 U.S. 162 (1986).
333. Susan D. Rozelle, The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation, 38 Ariz. St. L.J. 769, 784-85 (2006).
334. Benjamin Fleury-Steiner, Jurors' Stories of Death: How America's Death Penalty Invests in Inequality 24-25 (2004).
335. Lockhart, 476 U.S. at 167.
336. Lockhart, 476 U.S. at 167.
337. Lockhart, 476 U.S. at 167.
338. Brooke Butler has indeed found that death-qualified jurors are more likely than excluded jurors to believe that discrimination against Blacks is no longer a problem. Brooke Butler, Death Qualification and Prejudice: The Effect of Implicit Racism, Sexism, and Homophobia on Capital Defendants' Right to Due Process, 25 Behav. Sci. & L. 857, 865 (2007).
339. Lockhart, 476 U.S. at 173.
340. Lockhart, 476 U.S. at 173.
341. Lockhart, 476 U.S. at 173.
342. Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009) (questioning to what extent implicit racial bias operates to undermine racial equality in capital punishment).
343. Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 204 (2010) (finding that people implicitly associate Black with "Guilty").
344. Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 331-39 (2010) (finding that participants evaluated evidence differently based upon the skin tone of the perpetrator).
345. See Lockhart, 476 U.S. at 184 ("But the Constitution presupposes that a jury selected from a fair cross section of the community is impartial.... ").
346. Robert J. Smith & G. Ben Cohen, Capital Punishment: Choosing Life or Death (Implicitly), in Implicit Racial Bias Across the Law 229, 236-37 (Justin D. Levinson & Robert J. Smith eds., 2012). Others suggest that the dynamic might run in the opposite direction: Prosecutors devalue the worth of Black victims.
347. Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
348. See Gregg v. Georgia, 428 U.S. 153, 181 (1976) (plurality opinion) ("The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. ").
349. Roper v. Simmons, 543 U.S. 551, 616 (2005) (Scalia, J., dissenting) (internal quotation marks omitted).
350. See Gregg, 428 U.S. at 195 (plurality opinion) ("[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. ").
351. See Gregg, 428 U.S. at 195 (plurality opinion) ("[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. ").
352. See Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari) (arguing that no procedural or substantive safeguards could suffice to make the administration of the death penalty constitutional).
353. See McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987) ("[McCleskey] offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. ").
354. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim. L. Bull. 194, 214-15 (2003) [hereinafter Baldus & Woodworth, Administration] (documenting evidence revealing that while the defendant's race alone is not significant in capital sentencing, race-of-victim factors, particularly Black defendant-White victim cases, offer the greatest disparate treatment and impact in sentencing).