Faculty Research Spotlight: Race and the Death Penalty

Fresh Intelligentsia: Upgrading the Courts

As questions about racial bias in the criminal justice system dominate the headlines, research by John J. Donohue III, C. Wendell and Edith M. Carlsmith Professor of Law, offers insight into one of the most fraught areas: the death penalty. An economist, lawyer, and world-renowned empirical researcher, Donohue employs large-scale statistical studies to illuminate the impact of law and public policy in a variety of areas while raising critical questions about how laws work—and don’t work.

One of his most notable projects involved an assessment of Connecticut’s death penalty law, which revealed that the system treated minority-on-white crimes much more harshly than crimes committed by white defendants, and that the disparate treatment could not be justified by the crimes’ egregiousness. That research resulted in the Connecticut legislature’s repeal of the law in 2012, and the Connecticut Supreme Court’s overturning the law a few years later as it applied to  pre-repeal, death-row inmates. Relying on Donohue’s findings, the court held not only that the law violated the state’s prohibition on cruel and unusual punishment, but also, as Donohue had demonstrated, that use of the death penalty was tainted by racial bias.

John J. Donohue III
Stanford Law Professor John J. Donohue III

Donohue now has turned his attention to another state’s death penalty law. “I’ve long been interested in Texas,” he says.

“When the United States Supreme Court struck down the death penalty in 1972, it instructed states to weed out the discretion in death penalty laws that had led to racial bias,” Donohue explains.  “But it was unclear what the appropriate approach should be, and states varied in their responses. Texas adopted an unusual statute and was among the states that aggressively ratcheted up its use of the death penalty.”

Under Texas law, a sentence of life-without-possibility-of-parole (LWOP) was not an alternative to execution. “If the jury found that the defendant had killed deliberately and ‘there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,’ a death sentence was virtually mandatory,” Donohue says.

But in 2005, the Texas legislature added LWOP as an option and suddenly things changed: “No white capital offender got the death penalty once life-without-the-possibility-of parole was available, but similar minority defendants did.”

To Donohue, the situation looked like Connecticut all over again, so he began an investigation into Harris County, Texas—the state’s largest county, home to Houston, and the third largest county in the country. “Based on a regression analysis that contains publicly available FBI data about the nature of the crime, the offender, and the victim, the statistically significant racial disparity in capital sentencing is not explained by lawful and legitimate considerations.  Minority death-eligible offenders appear to be treated more harshly than comparable death-eligible white offenders, and this is particularly the case for minority offenders who kill white victims,” Donohue says.

Donohue’s initial findings are striking, and he now plans to delve more deeply into the more than 1,000 death-eligible cases in Harris County to analyze their facts, as he did in Connecticut.  After teaming up with two other empirical researchers at Berkeley and Columbia, he has assembled a team that includes two full-time researchers and a group of law-student volunteers who will pore through probation reports, public records, news articles, and other sources to determine if anything other than racial bias can explain the  dramatic sentencing disparity.

But given the body of evidence that he has amassed thus far, Donohue doesn’t think that Harris County—or, indeed, any jurisdiction that retains capital punishment—requires any additional information to take remedial action at this moment.

“If you wanted to point to one thing that could be done immediately, would save billions in taxpayer dollars, would not jeopardize public safety, and would address one of the most horrific aspects of racial bias in America’s criminal justice system, you would just end the death penalty—now.”