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Prosecutorial Discretion in Seeking Death: An Analysis of Racial Disparity in the Pretrial Stages of Case Processing in a Midwestern County

NCJ Number
Justice Quarterly Volume: 16 Issue: 3 Dated: September 1999 Pages: 559-578
Jon Sorensen; Donald H. Wallace
Date Published
20 pages
This article examines pretrial decisions to determine whether they had been influenced by race.
In the 1987 case of McCleskey v. Kemp, the US Supreme Court appeared to foreclose the possibility of challenging racial bias in capital sentencing by using statistically based claims of discrimination. McCleskey, however, does not prevent a challenge to decisions made by particular individuals during the capital punishment process. This article examined pretrial decisions made by, or under the direction of, one prosecutor in a midwestern county from 1991 through 1996. Homicide cases involving black defendants and white victims fared worse than other racial combinations in all pretrial decisions. They were more likely to result in first-degree murder charges, to be served notice of aggravating circumstances and to proceed to capital trial. The disparity was statistically significant even after controlling for legally relevant considerations, suggesting that the disparity was unwarranted and hence discriminatory. Notes, tables, references, cases cited, appendix