Who challenges disparities in capital punishment?: An analysis of state legislative floor debates on death penalty reform

Abstract

In McCleskey v. Kemp, the Supreme Court tasked legislatures, rather than courts, with redressing racial disparities in capital punishment. Elected officials must then decide to amend disparate death penalty procedures. Analyzing floor debates, we explore why legislators make arguments for racial disparity or fairness in deliberations of death penalty reforms. Results suggest views on race and the death penalty are products of partisanship, constituency composition, and the race/ethnicity of legislators, with the interaction of these factors being most predictive of argumentation. Findings illuminate who leads discourse on fairness in criminal justice and the limits of legislative responses to racial injustice.

Keywords:

• race
• capital punishment
• criminal law
• legal issues

Acknowledgements

Our thanks to Anna Law of Brooklyn College for her thoughtful comments on a previous draft, and to Elizabeth Law and Ariel Barat for invaluable research assistance.

Notes

1 A concurring opinion by Justice Douglas posited that racial bias contributed to these unconstitutional sentences.

2 Previous research by Wozniak (2012) on death penalty debates for Maryland and New Jersey required the author’s transcription of audio or video recordings. Official transcripts ensure the accuracy of the legislators’ comments and allow other researchers to access statements presented in our floor debate analyses.

3 In 2007, two men perpetrated a horrific home invasion, sexually assaulting and murdering a mother and her two daughters in Cheshire, Connecticut. The case drew national and international media attention and was, not surprisingly, a frequently discussed topic when the repeal effort was renewed in 2009 (D’Agostino, 2015). While the State House of Representatives (90-56) and State Senate (19-17) did vote to repeal the death penalty, Connecticut Governor Jodi Rell (Republican) vetoed the repeal, and the Senate lacked the votes to override the veto.

4 The Cheshire case was again a significant factor in the legislative debate, with some legislators moved to oppose the bill based on the depravity of the crime, and others satisfied by a provision in the repeal bill that maintained the death sentences for the two men convicted in the Cheshire case and for nine others on death row. That provision was later overturned by the Connecticut Supreme Court, resulting in life without parole sentences for the eleven men who had been on death row (Griffin & Kauffman, 2016).

5 This analysis was repeated using two separate dichotomous measures, one reflecting the use or non-use of the racial disparity argument, and the other the use or non-use of the racial fairness/reverse disparity argument. Analyzing the data in this fashion produced substantially the same results as are presented here where we employ one ordinal measure to capture the three possible outcomes.

6 We considered including gender as a variable in the analysis based on research that suggests gender plays an important role in lawmaking (for example, Thomas & Welch, 1991), such that women legislators demonstrate certain distinct preferences and priorities relative to their male colleagues (Poggione, 2004). Recent studies of public opinion further suggest males express greater support for the death penalty than females (Lambert et al., 2018). When we explored the role of gender in the present case, however, both the bivariate and multivariate data revealed inconsiderable effects on speech behavior.

7 Invoking other personal considerations, Senator Kissel also noted in his remarks, “My wife strongly supports the death penalty. My son does not” (Connecticut General Assembly, Senate Session, on April 4, 2012).

Additional information

Notes on contributors

David Niven

David Niven is an associate professor of political science at the University of Cincinnati. David’s research on death penalty policy has been published in several scholarly outlets including Social Science Quarterly, the Journal of Criminal Justice and Popular Culture, and the Washington Law Review. David has been invited to testify on death penalty policy before Ohio House of Representatives and Ohio Senate committees.

Ellen A. Donnelly

Ellen A. Donnelly is an assistant professor of Sociology and Criminal Justice at the University of Delaware. Her research examines racial/ethnic disparities in the U.S. criminal and juvenile justice systems. Ellen’s recent publications appear in the Journal of Criminal Law and Criminology, Justice Quarterly and Youth Violence, and Juvenile Justice. In Delaware, Ellen's research on improving fairness in the courts has been supported by the Access to Justice Commission and the State Administrative Office of the Courts.