95 Harv. L. Rev. 456 (1981-1982)
Race Bias in the Administration of the Death Penalty: The Florida Experience

handle is hein.journals/hlr95 and id is 474 raw text is: RACE BIAS IN THE ADMINISTRATION OF THE
Hans Zeisel*
T      WICE in the past fifteen years, federal courts of appeals
have been urged to reverse death sentences on the ground
that the death penalty was administered along racially discrim-
inatory lines. The first time, in Maxwell v. Bishop,1 a peti-
tioner submitted data to show discrimination against black
offenders. The second time, in Spinkellink v. Wainwright,2 a
petitioner submitted data to show bias against murderers of
white victims. The Spinkellink data indicated that such of-
fenders were substantially more likely to end up on death row
than were murderers of black victims.
Both times, the courts refused to find proof of racial dis-
crimination. Data that have since become available, provided
by the criminal justice system itself, make it clear that both
kinds of discrimination existed.
In 1972, in Furman v. Georgia,3 the Supreme Court in-
validated virtually all of the death penalty statutes then in
force, primarily on the ground that they failed to provide
sufficient safeguards against the arbitrary infliction of capital
punishment.4 All five of the Justices who supported this result
expressed concern that the pre-1972 statutes were not being
administered evenhandedly. Justices Douglas and Marshall
explicitly suggested that the death penalty was being discrim-
inatorily imposed against racial minority defendants.5 Justice
* Emeritus Professor of Law and Sociology and Associate of the Center for Crim-
inal Justice Studies, University of Chicago. The author thanks Anthony G. Amster-
dam, John Charles Boger, and Joel Berger for their critical readings of this Comment.
1 398 F.2d 138 (8th Cir. i968), vacated on other grounds, 398 U.S. 262 (1970).
2 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976 (i979). As noted by the
court of appeals, the correct spelling of the petitioner's name is Spenkelink, 578
F.2d at 582 n.i, and I will use that spelling when referring to the man.
3 408 U.S. 238 (1972).
4 As the Court's wholesale reversal of death sentences in pending cases from other
states indicated, its intent in Furman was to invalidate all state capital statutes in
force in 2972. See, e.g., Pope v. Nebraska, 408 U.S. 933 (1972) (mem.) (vacating
Nebraska death sentence); Johnson v. Louisiana, 408 U.S. 932 (1972) (mem.) (vacating
Louisiana death sentence); Stewart v. Massachusetts, 408 U.S. 845 (1972) (per curiam)
(vacating Massachusetts death sentence); Moore v. Illinois, 408 U.S. 786, 800 (1972)
(vacating Illinois death sentence).
5 408 U.S. at 255-57 (Douglas, J., concurring); id. at 364-66 (Marshall, J., con-

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