Wednesday, October 20, 2010

Law Review Article: The racial geography of the death penalty (Cohen, 2010)

The above titled law review article has now been added to the Law Review Article blogroll at this blog.


Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal
death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This
attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast
majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the
racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the
expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of
the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors
and peers - a discussion begun well before the founding of our Constitution - continues to have relevance today. This
Article documents the historical and racial relationships between place and the ability to seat an impartial jury. We then
discuss the unique impact demographic shifts in the jury pool have on death penalty decision making. Finally, we
propose three possible solutions: (1) a simple, democracy-enhancing fix through a return to the historical conception of
the county as the place of vicinage in federal capital trials; (2) a Batson-type three-step process for rooting out the
influence of race on the decision to prosecute federally; and/or (3) voluntary measures by the Attorney General to mask
demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a
return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or
through the authority of a fair-minded Attorney General) prospectively limits the impact of race on the operation of the
federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe
that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney
General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of
the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when
and whether to prosecute in federal court.