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18 Law & Soc'y Rev. 437 (1984)
Prosecutorial Discretion in Requesting the Death Penalty: A Case of Victim-Based Racial Discrimination

handle is hein.journals/lwsocrw18 and id is 439 raw text is: PROSECUTORIAL DISCRETION IN REQUESTING THE DEATH PENALTY: A CASE OF VICTIM-BASED RACIAL DISCRIMINATION RAYMOND PATERNOSTER* Data from 300 homicides involving an aggravating felony were examined to determine what factors influence the prosecutor's decision to seek the death penalty. It was found that the race of the victim was significantly related to the decision to seek the death penalty even when several legally relevant factors were taken into account. The data also revealed that black killers of whites were more likely and black killers of blacks less likely to have the death penalty requested. A breakdown of homicides into those involving a single aggravating felony and those involving multiple felonies revealed that racial effects were stronger in the former category. There was some evidence that this difference in the effects of race reflected a different threshold of tolerance for white and black murders. Black victim homicides resulted in a death request only when they crossed a threshold of aggravation that was higher than that found for white deaths. I. INTRODUCTION In a landmark decision in its 1975 term the United States Supreme Court ruled that the death penalty may be applied in a constitutionally approved manner (Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas).1 This decision overturned the * This study would not have been possible were it not for the assistance and untiring support of numerous friends and co-workers. The South Carolina research team of Soozie Caulfield, June Skinner, Tim Walker, and Diana Gamble was instrumental in transcribing, coding, and editing the data. For these efforts they were paid nothing but my respect and awe for their dedication and energy. I wnuld also like to thank countless attorneys in the state of South Carolina for answering my unending queries about cases they assumed were gone and forgotten, especially David Bruck of the South Carolina Office of Appellate Defense and Vance Cowden and Lewis Burke of the University of South Carolina School of Law. The latter three were responsible for securing a good part of the data analyzed here, and without their efforts the reported findings would not have come to light. Finally, I would like to thank LeeAnn Iovanni of the Maryland research team, Richard Lempert and two anonymous reviewers of the Law & Society Review for their careful reading of and comments on the paper. What is of value in it reflects in part their efforts. 1 In the same session the Court struck down mandatory death penalty statutes in Woodson v. North Carolina and Roberts v. Louisiana. Although the Texas statute allows the jury to consider factors in aggravation and mitigation, there are fundamental differences between it and the Georgia and Florida LAW & SOCIETY REVIEW, Volume 18, Number 3 (1984)

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