Disentangling Disparity: Exploring Racially Disparate Effect and Treatment in Capital Charging

73 Pages Posted: 16 Oct 2020

See all articles by Sherod Thaxton

Sherod Thaxton

University of California, Los Angeles (UCLA) - School of Law; University of California, Los Angeles (UCLA) - Luskin School of Public Affairs; University of California, Los Angeles (UCLA) - Department of Sociology

Date Written: October 6, 2017

Abstract

One hundred and thirty years ago, in Yick Wo v. Hopkins, the U.S. Supreme Court ruled that racially discriminatory enforcement of facially-neutral laws violated defendants ' equal protection rights. Since then, a voluminous body of research has documented persistent and unjustified racial disparities in charging and sentencing. Yet not a single claimant has prevailed in a race-based discriminatory prosecution action in federal court since Yick Wo. This seeming conflict-widespread evidence of racial discrimination coupled with claimants' inability to satisfy the Courts' evidentiary thresholds to prevail on the discriminatory prosecution claim can be attributed to deep disagreements among the Supreme Court Justices over a uniform and workable evidentiary standard for social scientific evidence of discrimination. Although the Court has increasingly signaled its willingness to rely. on statistical evidence to demonstrate racial discrimination, the majority of Justices have simultaneously found such evidence lacking in particular cases and failed to specify what types of evidence would be sufficient. Recently, members of the Court most skeptical of statistical evidence of discrimination have emphasized that claimants must show racial differences in outcomes are connected to racial differences in process, and not merely that there was an opportunity for discriminatory decision-making.

This article contributes to the understanding of discriminatory prosecutorial charging behavior by carefully disentangling the racial disparity into two separate components: the part that is explained by racial differences in case characteristics predictive of the charging decision (disparate effect) and the part explained by the racial differences in prosecutors' behavioral response to those characteristics (disparate treatment). By way of illustration, I apply the analytical approach to data on capital charging decisions in Georgia. I discover that between 60%-80% of the race-of-victim gap in capital charging behavior in Georgia is attributable to disparate treatment. I further show how prosecutors' differential treatment of specific case characteristics based on the victim's race contributes to the overall racial disparity, thereby providing a more granular analysis of discriminatory decision-making than previously available. I conclude by discussing the legal implications of my findings in light of the Court's governing equal protection and anti-discrimination jurisprudence.

Keywords: capital punishment, death penalty, prosecutorial discretion, plea bargaining, racism, discrimination, equal protection

Suggested Citation

Thaxton, Sherod, Disentangling Disparity: Exploring Racially Disparate Effect and Treatment in Capital Charging (October 6, 2017). American Journal of Criminal Law, Vol. 25, No. 1, 2018, UCLA School of Law, Public Law Research Paper No. 18-46, Available at SSRN: https://ssrn.com/abstract=3710318

Sherod Thaxton (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

HOME PAGE: http://law.ucla.edu/faculty/faculty-profiles/sherod-thaxton

University of California, Los Angeles (UCLA) - Luskin School of Public Affairs

3250 Public Affairs Building
Los Angeles, CA 90095-1656
United States

HOME PAGE: http://luskin.ucla.edu/person/sherod-thaxton

University of California, Los Angeles (UCLA) - Department of Sociology ( email )

264 Haines Hall
375 Portola Plaza
Los Angeles, CA 90095
United States

HOME PAGE: http://soc.ucla.edu/people/sherod-thaxton

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