Tuesday, February 2, 2010
Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers - a discussion begun well before the founding of our Constitution - continues to have relevance today. After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.