61 Law and Contemp. Probs. 153 (1998)
Racial Disparity and the Death Penalty

handle is hein.journals/lcp61 and id is 825 raw text is: RACIAL DISPARITY AND THE DEATH
We should, generally, want fairness in all areas of public policy. We should
especially want fairness with regard to the death penalty, since the stakes are so
high. Yet the opponents of the death penalty make a most peculiar argument
about fairness. They argue that if the death penalty is not administered fairly,
and especially not administered with racial fairness, it must be abolished!
Nobody would even think of trying to apply this principle in a consistent
way. If we find that black neighborhoods get less police protection than white
neighborhoods, would we withdraw cops from both black and white neighbor-
hoods? If banks are discriminating against black home buyers in mortgage
lending, would we demand they stop all mortgage lending? If we find the IRS
discriminating against middle-class and poor taxpayers, would we want to
abolish the IRS?
The first question, of course, is whether the death penalty is administered
unfairly. Among right-thinking, politically correct people, the phrase racial
unfairness is a mere tautology. It is difficult to imagine that anything .in
American society is administered with racial fairness. But, in fact, the oppo-
nents of capital punishment have both a mass market version of the racial
disparity argument and a specialist version,2 and the two versions are flatly
contradictory. In what follows, I will first examine the rhetoric and data sup-
porting the mass market version of the racial disparity thesis. I will then look
at the best studies of racial disparity, which lead to a discussion of the
(empirically superior) specialist version of the thesis. Next, I will present a
new statistical analysis (based on previously published data) that attempts to
Copyright © 1998 by Law and Contemporary Problems
This article is also available at http://www.law.duke.edu/journals/61LCPMcAdams.
* Associate Professor of Political Science, Marquette University.
1. See, e.g., Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Blackmun, J., dissenting from denial of
certiorari to Callins v. Collins, 998 F.2d 269 (5th Cir. 1993)); Furman v. Georgia, 408 U.S. 238, 257
(1972) (Brennan, J., concurring); id. at 314 (Marshall, J., concurring); American Bar Ass'n, Resolution
of the House of Delegates (Feb. 1997), reprinted in Appendix, 61 LAW & CONTEMP. PROBS. 219
(Autumn 1998); Leslie Harris, The ABA Calls for a Moratorium on the Death Penalty: The Task
Ahead-Reconciling Justice with Politics, Focus L. STUD., Spring 1997, at 2; Christine Wiseman, Rep-
resenting the Condemned: A Critique of Capital Punishment, 79 MARQUETTE L. REV. 731 (1996).
2. See John McAdams, Wisconsin Should Adopt the Death Penalty, 79 MARQUETTE L. REV. 719

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