NO. 15-650

In the Supreme Court of the United States
________________
SHONDA WALTER,
Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA,
Respondent.
________________

On Petition for Writ of Certiorari to
the Supreme Court of Pennsylvania
________________

BRIEF AMICI CURIAE OF SOCIAL SCIENTISTS
IN SUPPORT OF PETITIONER
________________
CATHERINE M. GROSSO
Assoc. Professor of Law
Michigan St. University
College of Law
648 N. Shaw Lane #417
East Lansing, MI 48824
(517) 432-6962
grosso@law.msu.edu
*Counsel of Record
(additional Amici Curiae
listed on inside cover)

JULES EPSTEIN*
Visiting Professor of Law
Temple Beasley School of
Law
1719 N. Broad Street
Philadelphia, Pa. 19122
(215) 204-6288
jules.epstein@temple.edu

 Amici curiae:
Social scientists:
Professor Katherine Y. Barnes
James E. Rogers College of Law
Associate Dean Barbara O’Brien
Michigan State University College of Law
Professor Ray Paternoster
University of Maryland
Associate Professor Scott Phillips
University of Denver
Professor Michael L. Radelet
University of Colorado
Associate Professor Mary R. Rose
The University of Texas at Austin
Associate Professor Samuel R. Sommers
Tufts University
Associate Professor Isaac Unah
University of North Carolina
The Stephen and Sandra Sheller Center for Social
Justice at Temple University Beasley School of Law
Pennsylvania Association of Criminal Defense
Lawyers

 TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 3
I.

II.

Social Scientific Evidence Shows That Race
Plays a Significant Role in Capital Charging
and Sentencing Decisions ................................ 4
A.

Nationwide Evidence ............................ 4

B.

Pennsylvania Evidence ...................... 10

Social Scientific Evidence Shows That Race
Plays a Significant Role in the Exercise of
Peremptory Challenges in Capital Jury
Selection ........................................................ 11
A.

Nationwide Evidence .......................... 12

B.

Pennsylvania Evidence ...................... 17

CONCLUSION.......................................................... 17

 ii

TABLE OF AUTHORITIES
CASES

Batson v. Kentucky, 476 U.S. 79 (1986) ................ 11
Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014).11
Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 17
Gregg v. Georgia, 428 U.S. 153 (1976) ..................... 3
McCleskey v. Kemp, 481 U.S. 279 (1987) ............ 3, 8
State v. Marshall, 613 A.2d 1059 (N.J. 1992) .......... 7
OTHER AUTHORITIES
Scott Anderson, As Flies to Wanton Boys: DeathEligible Defendants in Georgia and Colorado, 40
TRIAL TALK (1991) .................................................. 6
DAVID S. BAIME, REPORT TO THE SUPREME COURT
SYSTEMIC PROPORTIONALITY REVIEW PROJECT 20002001 TERM (JUNE 1, 2001) ....................................... 7
DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE
DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS
(1990) ………………………………………………….6, 8
David C. Baldus et al., The Use of Peremptory

Challenges in Capital Murder Trials: A Legal and
Empirical Analysis, 3 U. PA. J. CONST. L. 3

(2001) .............................................................. 13, 17
David C. Baldus et al., Arbitrariness and

Discrimination in the Administration of the Death
Penalty: A Legal and Empirical Analysis of the
Nebraska Experience (1973–1999), 81 NEB. L. REV.

486 (2002) .............................................................. 7

 iii
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 (1998) ...................................................... 7, 11

Katherine Barnes et al., Place Matters (Most): An

Empirical Study of Prosecutorial Decision-Making
in Death-Eligible Cases, 51 ARIZ. L. REV. 305

(2009) ..................................................................... 6

Leigh Bienan et al., The Reimposition of Capital

Punishment in New Jersey: The Role of
Prosecutorial Discretion, 41 RUTG. L. REV. 27

(1988) ...................................................................... 7
PEG BORTNER & ANDY HALL, ARIZONA FIRST-DEGREE
MURDER CASES SUMMARY OF 1995-1999
INDICTMENTS: DATA SET II RESEARCH REPORT TO
ARIZONA CAPITAL CASE COMMISSION (2002) .......... 6
Deon Brock et al., Arbitrariness in the Imposition of

Death Sentences in Texas: An Analysis of Four
Counties by Offense Seriousness, Race of Victim,
and Race of Offender, 28 AM. J. OF CRIM. L. 43

(2000) ...................................................................... 7

John Clark et al., Five Factor Model Personality

Traits, Jury Selection, and Case Outcomes in
Criminal and Civil Cases, 34 CRIM. JUST. & BEHAV.

641 (2007) ............................................................. 13
John J. Donohue III, An Empirical Evaluation of the

Connecticut Death Penalty System Since 1973: Are
There Unlawful Racial, Gender, and Geographic
Disparities?, 11 J. EMPIRIC. L. STUD. 637 (2014) .. 6

 iv
Jennifer L. Eberhardt et al., Looking Deathworthy:

Perceived Stereotypicality of Black Defendants
Predicts Capital-Sentencing Outcomes, 17

PSYCHOLOG. SCI. 383 (2006) .................................... 9

Catherine M. Grosso et al., Race Discrimination and

the Death Penalty: An Empirical and Legal
Overview, in AMERICA’S EXPERIMENT WITH CAPITAL

PUNISHMENT at 525 (James R. Aker et al. eds.,
2014) ....................................................................... 5

Catherine M. Grosso & Barbara O’Brien, A Stubborn

Legacy: The Overwhelming Importance of Race in
Jury Selection in 173 Post-Batson North Carolina
Capital Trials, 97 IOWA L. REV. 1531

(2012) .............................................................. 12, 15

Stephanie Hindson et al., Race, Gender, Religion and
Death Sentencing in Colorado, 1980–1999, 77 U.
COLO. L. REV. (2006) ............................................... 6
JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION
OF THE VIRGINIA GENERAL ASSEMBLY, REVIEW OF
VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT (2002). 7
Thomas J. Keil & Gennardo F. Vito, Race and the

Death Penalty in Kentucky Murder Trials: 19761991, 20 AM. J. CRIM. JUST. 17 (1995) ................... 6

David Keys & Teresa Guess, The Prevailing

Injustices in the Application of the Death Penalty
in Missouri (1978–1996), 32 SOC. JUST. 151 (2005). 6

Stephen P. Klein & John E. Rolph, Relationship of

Offender and Victim Race to Death Penalty
Sentences in California, 32 JURIMETRICS J. 33

(1991) ...................................................................... 6

 v
Justin D. Levinson et al., Devaluing Death: An

Empirical Study of Implicit Racial Bias on JuryEligible Citizens in Six Death Penalty States, 89

N.Y.U. L. REV. 513 (2014) .................................... 10

Michael Lenza et al., The Prevailing Injustices in the

Application of the Death Penalty in Missouri

(1978–1996), 32 SOC. JUST. 151 (2005) .................. 6
Barbara O’Brien et al., Untangling the Role of Race

in Capital Charging and Sentencing in North
Carolina, 1990-2009, N.C. L. REV. (forthcoming

2016) ................................................................. 7, 10
Raymond Paternoster & Robert Brame, Reassessing
Race Disparities in Maryland Capital Cases, 46
CRIMINOLOGY 971 (2008) ........................................ 6
Raymond Paternoster & Ann Marie Kazyaka, The

Administration of the Death Penalty in South
Carolina: Experiences Over the First Few Years, 39

S.C. L. REV. 245 (1988) ........................................... 7

Scott Phillips, Continued Racial Disparities in the

Capital of Capital Punishment: The Rosenthal Era,

50 HOUS. L. REV. 131 (2012) ................................. 7

Scott Phillips, Racial Disparities in the Capital of
Capital Punishment, 45 HOUS. L. REV. 807
(2008) ...................................................................... 7
Glenn L. Pierce & Michael L. Radelet, Race, Region

and Death Sentencing in Illinois, 1988-1997,
Report of the Governor’s Commission on Capital
Punishment, tech. app. I, Report A (April 14, 2002). 6

 vi
Glenn Pierce & Michael Radelet, The Impact of

Legally Inappropriate Factors on Death Sentencing
for California Homicides, 1990–1999, 46 SANTA

CLARA L. REV. 1 (2005–2006) ................................. 6

Glenn Pierce & Michael Radelet, Death Sentencing
in East Baton Rouge Parish, 1990–2008, 71 LA. L.
REV. 647 (2010–2011) ............................................. 6
Mary R. Rose, The Peremptory Challenge Accused of

Race or Gender Discrimination? Some Data from
One County, 23 LAW & HUM. BEHAV. 695

(1999) .................................................................... 13
John M. Scheb II et al., Race, Prosecutors, and
Juries: The Death Penalty in Tennessee, 29 JUST.
SYS. J. 338 (2008) ................................................... 7
Steven F. Shatz & Terry Dalton, Challenging the

Death Penalty with Statistics: Furman, McCleskey,
and A Single County Case Study, 34 CARDOZO L.

REV. 1227 (2012) ................................................ 6, 7
Samuel R. Sommers & Michael I. Norton, Race-

Based Judgments, Race-Neutral Justifications:
Experimental Examination of Peremptory Use and
the Batson Challenge Procedure, 31 LAW & HUM.

BEHAV. 261 (2007) ................................................. 16

Michael Songer & Isaac Unah, The Effect of Race,

Gender, and Location on Prosecutorial Decisions to
Seek the Death Penalty in South Carolina, 58 S.C.

L. REV. 161 (2006) .................................................. 7

Billy M. Turner et al., Race and Peremptory

Challenges During Voir Dire: Do Prosecution and
Defense Agree?, 14 J. CRIM. JUST. 61 (1986) ....... 12

 vii

U.S. GEN. ACCT. OFF., GAO/GGD-90-57, DEATH
PENALTY SENTENCING: RESEARCH INDICATES
PATTERN OF RACIAL DISPARITIES (1990) ............. 4, 5

 1
INTEREST OF AMICI CURIAE 1
Amici curiae include university professors,
trained in the social sciences, each of whom has
conducted empirical studies on the role of race in
capital punishment. The interest of the amici is to
provide the Court with empirical evidence from
social science research, so that the Court may be
better able to assess whether petitioner’s claim that,
in all cases, the imposition of a sentence of death
violates the Eighth Amendment’s prohibition against
cruel and unusual punishments.
The Stephen and Sandra Sheller Center for Social
Justice at Temple University Beasley School of Law
is a hub for social justice inquiry and advocacy at the
Law School and the University. Building on Temple’s
long-standing and deep commitment to social justice,
the Center works in collaboration with Temple Law
faculty and students, community groups, the legal
community, and other schools and departments
within the University to promote justice for
underserved populations in Philadelphia and across
Pennsylvania. The Center is especially committed to
the advancement of racial and ethnic equality in the
City of Philadelphia, which has a well-documented
and troubling history of disparate treatment of
Pursuant to Rule 37.6 of the Rules of this Court, amici state
that no counsel for a party authored this brief in whole or in
part. No person or entity, other than amici, made any monetary
contribution to the preparation or submission of this brief.
Petitioner and Respondent have consented to the filing of this
brief.
1

.

 2

African-American capital defendants. The Sheller
Center submits this brief in order to assist the Court
in obtaining a picture of the role that race currently
plays in the imposition of capital punishment, both
locally and nationally.
The Pennsylvania Association of Criminal
Defense Lawyers (“PACDL”) is a professional
association of attorneys admitted to practice before
the Supreme Court of Pennsylvania and who are
actively engaged in providing criminal defense
representation. As Amicus Curiae, PACDL presents
the perspective of experienced criminal defense
attorneys who aim to protect and ensure by rule of
law those individual rights guaranteed by the
Pennsylvania and United States Constitutions, and
work to achieve justice and dignity for defendants.
PACDL’s membership currently includes 904 private
criminal defense practitioners and public defenders
throughout the Commonwealth. PACDL members
have a direct interest in certiorari being granted in
this case because of their concern for ensuring that
the race of an accused plays no part in the criminal
justice system, including the prosecution’s charging
decisions; jury selection; and the jury’s verdict. That
interest and concern is especially heightened when
the prosecution seeks to impose capital punishment.
SUMMARY OF ARGUMENT
Social science research provides compelling
evidence that race continues to play a significant role
in the administration of capital punishment. In
particular, and as amici detail below, data
nationally, including from Pennsylvania, confirm a
recurring problem in three areas critical to capital

 3

case litigation: the decision by prosecuting
authorities whether to charge the case as capital; the
decision by those same authorities as to which
prospective jurors will be peremptorily struck; and in
the punishment choice made by the selected jurors.
In study after study, in jurisdiction after jurisdiction,
and after controlling for race-neutral factors, race
remains a statistically significant factor, an arbitrary
“thumb on the scale.”
Race discrimination compromises fairness and
imposes arbitrariness. Race of the defendant or the
victim constitutes an arbitrary basis for imposing a
death sentence because it does not relate to the
culpability of the defendant or the nature of the
crime. This Court has said that an arbitrary system
is cruel and unconstitutional. Gregg v. Georgia, 428
U.S. 153, 188 (1976). For these reasons amici bring
the findings of social science research to the
attention of the Court and, given the powerful
impact race has played and continues to play in
capital punishment, urges the Court to grant a writ
of certiorari in the instant matter.
ARGUMENT
In McCleskey v. Kemp, 481 U.S. 279, 301 (1987),
this Court confirmed that the Eighth Amendment is
violated where “the death penalty [is] so irrationally
imposed that any particular death sentence could be
presumed excessive [and] . . . there was no basis for
determining in any particular case whether the
penalty was proportionate to the crime[.]” Id. (citing
Furman v. Georgia, 408 U.S. 238 (1972)). The Court
went on to affirm that where the “capital
punishment system operates in an arbitrary and

 4

capricious manner” a constitutional violation has
occurred. Id. at 306. While the Court concluded in
McCleskey that the proof of arbitrariness arising
from race was inadequate, 40 years of continued
study show that to no longer be the case.

Amici support the Petition for Writ of Certiorari

because, as is demonstrated herein, the continuing,
pervasive, and substantial impact of race on at least
three critical stages in the capital case process—the
charging decision, the selection of jurors, and the
determination of punishment—profoundly raises
concerns and demonstrates that the “capital
punishment system operates in an arbitrary and
capricious manner[.]” Id.
I.

Social Scientific Evidence Shows That Race
Plays a Significant Role in Capital Charging
and Sentencing Decisions
A.

Nationwide Evidence

An extensive body of academic literature has
developed over the last forty years evaluating the
influence of race in the administration of the death
penalty. The research focuses on the degree to which
the race of the defendant or the victim influences
discretionary decisions of prosecutors or jurors.
Research has also analyzed the extent to which
prosecutors rely on race during jury selection.
In 1990, the United States General Accounting
Office undertook a systematic review of the empirical
studies of capital charging and sentencing systems
conducted in the 1970s and early 1980s. U.S. GEN.
ACCT. OFF., GAO/GGD-90-57, DEATH PENALTY
SENTENCING: RESEARCH INDICATES PATTERN OF

 5

RACIAL DISPARITIES (1990). The review sought to
evaluate the extent to which the existing literature
supported claims that black defendants are treated
more punitively than similarly situated non-black
defendants, and claims that defendants whose
victims are white are treated more punitively than
similarly situated defendants whose victims are
black. The review reported that in “82% of the
studies . . . [defendants] who murdered whites were
found to be more likely to be sentenced to death than
those who murdered blacks.” GAO reported this
finding “remarkably consistent across data sets,
states, data collection methods, and analytic
techniques.” Id. at 5-6.
Catherine Grosso and colleagues identified and
reviewed 36 empirical studies between the
publication of the GAO Study and 2013 and
concluded that the “post-1990 results are consistent
with those summarized in the GAO report.” An
overwhelming majority of the studies concluded that
defendants whose victims are white are treated more
punitively than similarly situated defendants whose
victims are black. Catherine M. Grosso et al., Race

Discrimination and the Death Penalty: An Empirical
and Legal Overview, in AMERICA’S EXPERIMENT WITH

CAPITAL PUNISHMENT at 525 (Charles S. Lanier,
Robert Bohm, & James Acker eds., 2014).
Studies with varying levels of detail and
methodological sophistication have been conducted
in numerous states. 2 While not universal, the
In alphabetical order by state: PEG BORTNER & ANDY HALL,
ARIZONA FIRST-DEGREE MURDER CASES SUMMARY OF 1995-1999
INDICTMENTS: DATA SET II RESEARCH REPORT TO ARIZONA
2

 6

CAPITAL CASE COMMISSION (2002); Stephen P. Klein & John E.
Rolph, Relationship of Offender and Victim Race to Death
Penalty Sentences in California, 32 JURIMETRICS J. 33 (1991);
Glenn Pierce & Michael Radelet, The Impact of Legally

Inappropriate Factors on Death Sentencing for California
Homicides, 1990–1999, 46 SANTA CLARA L. REV. 1 (2005–2006);
Steven F. Shatz & Terry Dalton, Challenging the Death Penalty
with Statistics: Furman, McCleskey, and a Single County Case
Study, 34 CARDOZO L. REV. 1227 (2012) (California); Scott
Anderson, As Flies to Wanton Boys: Death-Eligible Defendants
in Georgia and Colorado, 40 TRIAL TALK 9-16 (1991); Stephanie
Hindson et al., Race, Gender, Religion and Death Sentencing in
Colorado, 1980–1999, 77 U. COLO. L. REV. 549 (2006); John J.
Donohue III, An Empirical Evaluation of the Connecticut Death
Penalty System Since 1973: Are There Unlawful Racial,
Gender, and Geographic Disparities?, 11 J. EMPIRIC. L. STUD.
637 (2014); David C. Baldus et al., EQUAL JUSTICE AND THE
DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS (1990)
(Georgia); Glenn L. Pierce & Michael L. Radelet, Race, Region

and Death Sentencing in Illinois, 1988-1997, Report of the
Governor’s Commission on Capital Punishment, tech. app. I,
Report A (April 14, 2002); Thomas J. Keil & Gennardo F. Vito,

Race and the Death Penalty in Kentucky Murder Trials: 19761991, 20 AM. J. CRIM. JUST. 17 (1995); Raymond Paternoster &
Robert Brame, Reassessing Race Disparities in Maryland
Capital Cases, 46 CRIMINOLOGY 971 (2008); Glenn Pierce &
Michael Radelet, Death Sentencing in East Baton Rouge
Parish, 1990–2008, 71 LA. L. REV. 647 (2010–2011) (Louisiana);
David Keys & Teresa Guess, The Prevailing Injustices in the
Application of the Death Penalty in Missouri (1978–1996), 32
SOC. JUST. 151 (2005); Katherine Barnes et al., Place Matters
(Most): An Empirical Study of Prosecutorial Decision-Making in
Death-Eligible Cases, 51 ARIZ. L. REV. 305 (2009) (Missouri);
Michael Lenza et al., The Prevailing Injustices in the
Application of the Death Penalty in Missouri (1978–1996), 32
SOC. JUST. 151 (2005); David C. Baldus et al., Arbitrariness and
Discrimination in the Administration of the Death Penalty: A
Legal and Empirical Analysis of the Nebraska Experience
(1973–1999), 81 NEB. L. REV. 486 (2002); State v. Marshall, 613

A.2d 1059 (N.J. 1992); David S. Baime, REPORT TO THE

 7

overwhelming majority of these studies indicate that
the odds of receiving the death penalty are enhanced
if the victim is white as opposed to black or another
race. See also Steven F. Shatz & Terry Dalton,

Challenging the Death Penalty with Statistics:
Furman, McCleskey, and A Single County Case
Study, 34 CARDOZO L. REV. 1227, 1246-1251 (2013)

(reviewing the literature on race and capital
punishment). The authors concluded:

SUPREME COURT SYSTEMIC PROPORTIONALITY REVIEW PROJECT
2000-2001 TERM (June 1, 2001) (New Jersey); Leigh Bienan et
al., The Reimposition of Capital Punishment in New Jersey:
The Role of Prosecutorial Discretion, 41 RUTG. L. REV. 27
(1988); Barbara O’Brien et al., Untangling the Role of Race in
Capital Charging and Sentencing in North Carolina, 1990-2009,
N.C. L. REV. (forthcoming 2016); 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 (1998) (Pennsylvania);
Raymond Paternoster & Ann Marie Kazyaka, The
Administration of the Death Penalty in South Carolina:
Experiences Over the First Few Years, 39 S.C. L. REV. 245
(1988); Michael Songer & Isaac Unah, The Effect of Race,
Gender, and Location on Prosecutorial Decisions to Seek the
Death Penalty in South Carolina, 58 S.C. L. REV. 161 (2006);
John M. Scheb II et al., Race, Prosecutors, and Juries: The
Death Penalty in Tennessee, 29 JUST. SYS. J. 338 (2008); Deon
Brock et al., Arbitrariness in the Imposition of Death Sentences
in Texas: An Analysis of Four Counties by Offense Seriousness,
Race of Victim, and Race of Offender, 28 Am. J. OF CRIM. L. 43
(2000); Scott Phillips, Continued Racial Disparities in the
Capital of Capital Punishment: The Rosenthal Era, 50 HOUS. L.
REV. 131 (2012) (Texas); Scott Phillips, Racial Disparities in the
Capital of Capital Punishment, 45 HOUS. L. REV. 807 (2008)

(Texas); and JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION
OF THE VIRGINIA GENERAL ASSEMBLY, REVIEW OF VIRGINIA’S
SYSTEM OF CAPITAL PUNISHMENT (2002).

 8

These empirical studies of racial
disparities in death-charging and deathsentencing—done in different jurisdictions,
with differing methodologies, covering a
variety of time periods—produced results
remarkably consistent with the Baldus study
findings in Georgia a quarter of a century
ago: 1) there is little or no disparity based on
race of the defendant alone; 2) there is a
statistically significant disparity based on
race of the victim(s) alone; and 3) there is an
even greater disparity based on the
combination of race of the defendant and race
of the victim.

Id. at 1250.
This is true across decades of study. The Baldus
study of the administration of capital punishment in
Georgia from 1973-1980 (litigated in McCleskey v.
Kemp, 481 U.S. 279 (1987)) found that, after
adjusting for the presence or absence of legitimate
case characteristics, including the level of violence
and the defendant’s prior record, defendants whose
victims were white faced odds of receiving a death
sentence that were on average 4.3 times higher than
similarly situated defendants whose victims were
black. DAVID C. BALDUS ET AL., EQUAL JUSTICE AND
THE DEATH PENALTY: A LEGAL AND EMPIRICAL
ANALYSIS 319-320 (1990).
Professor Eberhardt and colleagues used the data
from the Baldus study to show that among
defendants convicted of murdering a white victim,
defendants
whose
appearance
was
more
stereotypically black (e.g. darker skinned, with a

 9

broader nose and thicker lips) were sentenced more
harshly and, in particular, were more likely to be
sentenced to death than if their features were less
stereotypically black. This finding held even after the
researchers controlled for the many non-racial
factors that might account for the results. Jennifer
L. Eberhardt et al., Looking Deathworthy: Perceived

Stereotypicality of Black Defendants Predicts
Capital-Sentencing Outcomes, 17 PSYCHOLOG. SCI.
383 (2006).

Subsequent charging and sentencing studies find
lower odds but consistent and statistically significant
disparities. A recent study of capital charging and
sentencing decisions in North Carolina between 1990
and 2009 used a very similar methodology to that in
the Baldus study discussed above and reported
similar findings. The primary model analyzing death
sentencing among all death-eligible cases showed
that—even after controlling for multiple measures of
culpability—cases with at least one white victim face
odds of receiving a death sentence that were 2.17
times the odds faced by all other cases. The evidence
further suggested that this effect arises primarily in
charging decisions, where prosecutors systematically
disregard cases in which black defendants kill black
victims. The odds of a black defendant/black victim
case advancing to a capital trial are 2.6 times lower
than the odds faced by all other cases. The study
found that white victim cases and black
defendant/black victim cases pulled strongly in the
opposite direction. In both instances, race—a factor
unrelated to culpability and repugnant to the
criminal justice system—plays a significant role.
Barbara O’Brien et al., Untangling the Role of Race

 10

in Capital Charging and Sentencing in North
Carolina, 1990-2009, N.C. L. REV. (forthcoming

2016).

Recent research has contributed to our
understanding of possible ways that race infects
capital decision-making. One field of research
suggests that the human mind may unwittingly
inject bias into the seemingly neutral concepts and
processes of death penalty administration. This area
of research is less well developed, but new research
suggests that jury-eligible citizens harbor implicit
racial stereotypes about blacks and whites generally,
as well as implicit associations between race and the
value of life. This research also found that deathqualified jurors harbored stronger racial biases than
excluded jurors. Justin D. Levinson et al., Devaluing

Death: An Empirical Study of Implicit Racial Bias on
Jury-Eligible Citizens in Six Death Penalty States,
89 N.Y.U. L. REV. 513 (2014).
B.

Pennsylvania Evidence

Social science researchers have also turned their
attention to Pennsylvania. One study on the role of
race in capital charging and sentencing found that
that African Americans in Philadelphia receive the
death penalty at a substantially higher rate than
defendants of other races prosecuted for similar
murders. This well-controlled study of 600 deatheligible cases and 384 penalty trial cases in
Philadelphia County during the period 1983-1993
documented significant black-defendant effects after
controlling for the culpability of the defendant and
the nature of the crimes. David C. Baldus, et al.,

Racial Discrimination and the Death Penalty in the

 11

Post-Furman Era: An Empirical and Legal Overview,
with Recent Findings from Philadelphia, 83 CORNELL
L. REV. 1638 (1998).

Baldus and colleagues later updated this research
to include cases through 2000 for litigation in 2003.
Professor Baldus testified at a post-trial evidentiary
hearing in Philadelphia that he had reviewed 338
capital cases in which Philadelphia juries weighed
aggravating factors against mitigating factors, and
that a statistical analysis indicated that “there is
substantial, consistent and statistically significant
discrimination
against
African–American
defendants.” Commonwealth v. Arrington, 86 A.3d
831, 854-55 (Pa. 2014) cert. denied sub nom.
Arrington v. Pennsylvania, 135 S.Ct. 479, 190
L.Ed.2d 363 (2014).
II.

Social Scientific Evidence Shows That Race
Plays a Significant Role in the Exercise of
Peremptory Challenges in Capital Jury
Selection

Nearly thirty years ago, this Court made clear
that racial discrimination in jury selection violates
the guarantee of Equal Protection because
“[s]election procedures that purposefully exclude
black persons from juries undermine public
confidence in the fairness of our system of justice.”
Batson v. Kentucky, 476 U.S. 79, 87 (U.S. 1986). In
the Eighth Amendment setting, purposeful exclusion
is found in the recurring and systemic exclusion of
African-American venire persons who are otherwise
death-qualified and fit to serve as capital case jurors.
As a starting point, this “undermine[s] public
confidence.” In addition, however, the pattern of

 12

exclusion compounds the race-effect in jury weighing
and penalty determination, increasing the arbitrary
and capricious nature of the death penalty
punishment system.
A.

Nationwide Evidence

Researchers have consistently found racial
disparities in strike decisions. 3 An early study by
Billy Turner and colleagues examined strikes by both
the prosecution and defense in 121 criminal trials in
one Louisiana parish from 1976-1981. The authors
compared the percentage of struck jurors who were
black (44%) to the percent of the population in the
Louisiana parish that was black at the time of the
study (18%), and inferred from this 26-point
disparity that jury selection was not race neutral.
Billy M. Turner et al., Race and Peremptory

Challenges During Voir Dire: Do Prosecution and
Defense Agree?, 14 J. CRIM. JUST. 61 (1986).
The pattern has continued over time and to the
present. In thirteen non-capital felony trials in North
Carolina, prosecutors used 60% of their strikes
against black jurors, who constituted only 32% of the
venire. In comparison, defense attorneys used 87% of
their strikes against white jurors, who made up 68%
of the venire. Mary R. Rose, The Peremptory

Challenge
Accused
of
Race
or
Gender
Discrimination? Some Data from One County, 23
LAW & HUM. BEHAV. 695 (1999).

See Catherine M. Grosso & Barbara O’Brien, A Stubborn
Legacy: The Overwhelming Importance of Race in Jury
Selection in 173 Post-Batson North Carolina Capital Trials, 97
3

IOWA L. REV. 1531 (2012) (collecting studies discussed herein).

 13

John Clark and colleagues more recently
analyzed jury selection in 28 civil and criminal trials
in two adjacent counties in a southeastern state.
Across the eleven criminal trials they examined, race
was a statistically significant predictor of both
prosecution and defense strikes. John Clark et al.,

Five Factor Model Personality Traits, Jury Selection,
and Case Outcomes in Criminal and Civil Cases, 34
CRIM. JUST. & BEHAV. 641 (2007).

Similar results were reported in at least four
other county-level studies: RICHARD BOURKE & JOE
HINGSTON, BLACK STRIKES: A STUDY OF THE RACIALLY
DISPARATE USE OF PEREMPTORY CHALLENGES BY THE
JEFFERSON PARISH DISTRICT ATTORNEY’S OFFICE 5
(2003) (Louisiana) (noting that in both six- and
twelve-person juries, prosecutors struck “black
prospective jurors at more than three times the rate”
they struck their white counterparts); URSULA NOYE,
BLACK STRIKES: A STUDY OF THE RACIALLY DISPARATE
USE OF PEREMPTORY CHALLENGES BY THE CADDO
PARISH DISTRICT ATTORNEY’S OFFICE (2015)
(Louisiana) (finding that prosecutors chose to strike
black prospective jurors at three times the rate of
non-blacks, a finding which is statistically
significant); David C. Baldus et al., The Use of

Peremptory Challenges in Capital Murder Trials: A
Legal and Empirical Analysis, 3 U. PA. J. CONST. L.

3, 10 (2001) (discussed below); Steve McGonigle et
al., A Process of Juror Elimination: Dallas

Prosecutors Say They Don’t Discriminate, but
Analysis Shows They Are More Likely to Reject
Black Jurors, DALL. MORNING NEWS, Aug. 21, 2005,
at 2005 WLNR 24658335 (finding that prosecutors
“excluded eligible blacks from juries at more than

 14

twice the rate they rejected eligible whites” even
after the researchers controlled for non-racial
characteristics of the jurors). 4
Grosso and O’Brien examined the influence of
race on the exercise of peremptory challenges in
capital trials of all defendants on death row in North
Carolina as of July 1, 2010. They found substantial
disparities about which potential jurors prosecutors
struck. Over the twenty-year period under review,
prosecutors struck eligible black venire members at
about 2.5 times the rate they struck eligible venire
members who were not black. These disparities
remained consistent over time and across the state,
and did not diminish when researchers controlled for
race-neutral factors. Catherine M. Grosso & Barbara
O’Brien, A Stubborn Legacy: The Overwhelming

Importance of Race in Jury Selection in 173 PostBatson North Carolina Capital Trials, 97 IOWA L.
REV. 1531 (2012).

4 The Dallas Morning News published the results of this
research in a set of feature stories between Sunday, August 21
and Tuesday, August 23. See About the Series, DALL. MORNING
NEWS, Aug. 21, 2005, at 19A, 2005 WLNR 24658085 (describing
the series); How the Analysis Was Done, DALL. MORNING NEWS,
Aug. 21, 2005, at 9A, 2005 WLNR 2457224 (reporting study
design and methodology). The Dallas Morning News published
a similar study on jury selection in Dallas County in 1986. See
Steve McGonigle & Ed Timms, Race Bias Pervades Jury
Selection, DALL. MORNING NEWS, Mar. 9, 1986, at 1986 WLNR
1683009. This study analyzed the impact of peremptory strikes
on jury composition in 10 randomly selected felony jury trials in
1983 and 1984 and found blacks largely excluded from jury
service. Id.

 15

The finding of race as a factor in jury strikes is
robust. In several of these studies disparities
persisted even where researchers included raceneutral factors about jurors that might bear on a
party’s decision to strike. 5
An additional body of research has examined the
role of race in jury selection in an experimental
setting. This type of research is limited by the
artificial nature of the decision making. Its strength,
however, is that it allows researchers greater control
over the variables in question in order to identify
causal factors. These studies also offer substantial
confirming evidence that race plays a significant role
in jury selection, especially when evaluated in
conjunction with the research from actual trials
reviewed above.
An excellent example of this work was conducted
by Michael Norton and Samuel Sommers. The
researchers presented three groups of study
participants—college students, law students, and
trial attorneys—with the facts of a criminal case
involving a black defendant. The researchers told
participants to assume the role of the prosecutor, and
This is to rule out the possible explanation that racial
disparities in strike rates arise because race is associated with
other race-neutral factors that drive strike decisions. If
members of one race are disproportionately less supportive of
the death penalty, for example, prosecutors’ disproportionately
high strike rates against that group may be driven by group
members’ views rather than their race. Controlling for various
race-neutral factors that may bear on the decision to strike
allows the researcher to rule out at least some alternative
explanations of racial disparities.
5

 16

that they had only one peremptory strike left to use
in deciding which of two prospective jurors to strike.
The prospective jurors each had qualities that
pretesting suggested would be troubling to
prosecutors: one was a journalist who had
investigated police misconduct and the other had
indicated skepticism about statistics relevant to
forensic evidence that the state would offer.
Participants were randomly assigned to one of two
conditions: one in which the first prospective juror
was black and the second white, and another in
which the race of the prospective jurors was
reversed.
Participants challenged the black juror more
often than the white juror, regardless of whether the
juror was presented as the journalist or the statistics
skeptic. Yet, when asked to explain why they struck
the juror they did, the study participants almost
never mentioned race; participants tended to offer
the first juror’s experience writing about police
misconduct when striking him, and cited the second
juror’s skepticism about statistics when striking him.
Samuel R. Sommers & Michael I. Norton, Race-

Based Judgments, Race-Neutral Justifications:
Experimental Examination of Peremptory Use and
the Batson Challenge Procedure, 31 LAW & HUM.
BEHAV. 261 (2007).
B.

Pennsylvania Evidence

David Baldus and colleagues analyzed 317 capital
murder cases tried by jury in Philadelphia between
1981 and 1997. The research evaluated each side’s
decision to strike or accept a qualified venire
member. The research found that prosecutors struck

 17

on average 51% of the black jurors they had the
opportunity to strike, compared to only 26% of
comparable non-black jurors, and that defense
strikes exhibited a nearly identical pattern in
reverse, even after researchers controlled for various
non-racial characteristics of the jurors, such as age,
occupation, education, and responses to certain
questions asked in voir dire David C. Baldus et. al.,

The Use of Peremptory Challenges in Capital
Murder Trials: A Legal and Empirical Analysis, 3 U.
PA. J. CONST. L. 3, 121-23 (2001).

CONCLUSION
After several dozen studies and more than four
decades of research, there is compelling proof that
race influences decision makers responsible for
administering the capital punishment system. Race
influences charging and prosecuting decisions, jury
selection,
and
sentencing.
This
influence
compromises fairness, creates arbitrariness, and
undermines confidence in the criminal justice
system.
The consistency and power of these findings raise
the fundamental question of whether the death
penalty is imposed arbitrarily, i.e., without the
“reasonable
consistency”
required
by
the
Constitution’s commands. Eddings v. Oklahoma, 455
U.S. 104, 112 (1982). That question, last examined
more than four decades ago, warrants reexamination now.
For these reasons amici bring the findings of
social science research to the attention of this Court
and, given the powerful impact race has played and
continues to play in capital punishment, urge this

 18
Court to grant a writ of certiorari in the instant
matter.
CATHERINE M. GROSSO
Assoc. Professor of Law
Michigan St. University
College of Law
648 N. Shaw Lane #417
East Lansing, MI 48824
(517) 432-6962
grosso@law.msu.edu

*Counsel of Record

JULES EPSTEIN*
Visiting Professor of Law
and Director of Advocacy
Programs
Temple Beasley School of
Law
1719 N. Broad Street
Philadelphia, Pa. 19122
(215) 204-6288
Jules.Epstein@temple.edu