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53 DePaul L. Rev. 1557 (2003-2004)
Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide

handle is hein.journals/deplr53 and id is 1567 raw text is: CONDEMNING THE OTHER IN DEATH PENALTY
TRIALS: BIOGRAPHICAL RACISM, STRUCTURAL
MITIGATION, AND THE EMPATHIC DIVIDE
Craig Haney*
It is tempting to pretend that minorities on death row share a fate in
no way connected to our own, that our treatment of them sounds no
echoes beyond the chambers in which they die. Such an illusion is
ultimately corrosive, for the reverberations of injustice are not so eas-
ily confined.
-Justice William J. Brennan1
INTRODUCTION
I have three modest points to make in this brief Article. The first is
that most analyses of racial discrimination in the administration of the
death penalty-despite their importance to the critical debate over
the fairness of capital punishment-are not able to address the effects
of many of the most pernicious forms of racism in American society.
In particular, they cannot examine biographical racism-the ac-
cumulation of race-based obstacles, indignities, and criminogenic in-
fluences that characterizes the life histories of so many African-
American capital defendants.
Second, I propose that recognizing the role of this especially perni-
cious form of racism in the lives of capital defendants has significant
implications for the way we estimate fairness (as opposed to parity) in
our analyses of death sentencing. Chronic exposure to race-based,
life-altering experiences in the form of biographical racism represents
a profoundly important kind of structural mitigation. Because of
the way our capital sentencing laws are fashioned, and the require-
ment that jurors must engage in a moral inquiry into the culpability
of anyone whom they might sentence to die,2 this kind of mitigation
provides a built-in argument against imposing the death penalty on
* Professor of Psychology, University of California, Santa Cruz. I am grateful to Professors
Susan Bandes and Andrea Lyon for organizing the excellent Race to Execution Symposium and
for being kind enough to invite me to participate.
1. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).
2. California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring).

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