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53 DePaul L. Rev. 1411 (2003-2004)
Race Discrimination and the Legitamacy of Capital Punishment: Reflections on the Interaction of Fact and Perception

handle is hein.journals/deplr53 and id is 1421 raw text is: RACE DISCRIMINATION AND THE
David C. Baldus**
George Woodworth***
This Article focuses on the interaction between the empirical evi-
dence of racial discrimination in the administration of the death pen-
alty, community perceptions of the existence of such discrimination,
and the impact of those perceptions on the perceived legitimacy of
capital punishment.
Our analysis builds on the usual distinction between race-of-defen-
dant and race-of-victim discrimination.1 Both forms of discrimination
violate the principle of comparative justice, which requires compa-
rable treatment of offenders who are similarly situated in terms of
criminal culpability and deathworthiness.2 Racially discriminatory ad-
ministration of the death penalty violates comparative justice because
it: (a) differentiates among offenders on the basis of morally and le-
gally irrelevant factors, and (b) results in the similar treatment of of-
fenders who materially differ in terms of their criminal culpability.3
* We acknowledge with thanks the many helpful suggestions and comments on an earlier
draft of this Article by Catherine M. Grosso, Robert F. Schopp, Gerald B. Wetlaufer, and David
Zuckerman. Beau Brindley, Jeffrey L. Powell, and Ryan S. Struve provided valuable research
assistance. We are also grateful for data and advice from Dale Jones, Mark H. Friedman, and
Vance Hagins for the New Jersey segment of the Article and from Susan Balliet, Joseph Hood,
Edward C. Monahan, and Bette Niemi for the Kentucky segment of the Article.
** Joseph B. Tye Professor, College of Law, University of Iowa
*   Professor, Statistics and Actuarial Science, University of Iowa
1. Race-of-defendant discrimination refers to the more punitive charging and sentencing deci-
sions of black or Hispanic offenders because of their race or ethnicity, while race-of-victim dis-
crimination refers to the more punitive treatment of offenders whose victims are white.
2. Robert F. Schopp, Justifying Capital Punishment in Principle and in Practice: Empirical
Evidence of Distortions in Application, 81 NEB. L. REV. 805, 826-27 (2002) (Dissimilar treat-
ment of similarly situated offenders constitutes comparative injustice, as does similar treat-
ment of those who materially differ in terms of their criminal culpability and deathworthiness.).
In contrast to comparative justice, noncomparative justice requires that each individual receive
treatment appropriate to that individual's merit or desert. Id. at 826.
3. Schopp, supra note 2, at 827. Schopp stated:


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