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The Baldus Study

Adam Liptak has this story in the NYT on David Baldus, who died Monday at the age of 75.  Baldus was the lead researcher in the study on race and the death penalty that went to the U.S. Supreme Court in McCleskey v. Kemp.  Regrettably, Liptak's story perpetuates the myth that Baldus's findings are unquestioned fact.

The study's findings have often been misunderstood. They did not show that blacks were significantly more likely to be sentenced to death than whites. What the study found was that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. In other words, a death sentence often hinged not on the race of the defendant but on the race of the victim.

But what a study "found" is not necessarily the reality of the matter.  Baldus's study was the subject of a full-blown trial in Federal District Court.  The court found that the models purporting to show race-of-victim bias were invalid for omission of legitimate variables.  Include those variables, and you get a different result.
Neither model produces a statistically significant race of the defendant effect at the level where the prosecutor is trying to decide if the case should be advanced to a penalty trial. Neither model produces any evidence that race of the victim or race of the defendant has any statistically significant effect on the jury's decision to impose the death penalty. The significance of this table cannot be overlooked. The death penalty cannot be imposed unless the prosecutor asks for a penalty trial and the jury imposes it. The best models which Baldus was able to devise which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either of those decisions in the State of Georgia.
McCleskey v. Zant, 580 F. Supp. 338, 367-368 (ND Ga 1984) (emphasis in original).

On appeal, the Court of Appeals took the unusual step of assuming the study's validity despite the factual finding to the contrary in the District Court.  The Supreme Court did the same.  That step facilitated resolution of the legal question, but it distorted public perception of the facts.  Later studies have mostly followed the same pattern.  A "race of victim" effect appears at first blush, but it is dramatically reduced or disappears altogether when relevant, legitimate variables are considered.  For more on this, see my 2003 Engage article.

Have you ever printed a color photograph on an ink-jet printer, only to discover that one of the color jets is empty or clogged?  Everything in the picture is true, yet the picture is distorted because of what is not there.  To report the findings of the Baldus study without mentioning it was found invalid is like printing a picture of a field of sunflowers with no yellow.

Update:  From an email comment, it appears that my statement about what the Court of Appeals assumed may not be clear to nonlawyers.  The Court of Appeals definitely did not accept that Baldus's findings actually were true.  On the contrary, they were skeptical.  What they did, though, was hold as a matter of law that even if the findings were true they would not result in overturning the sentence.  The Supreme Court did the same on certiorari.  This "even if" exercise is commonly phrased in appellate opinions as assuming the facts in favor of one party.  The Court of Appeals said, "we decide that this particular study, assuming its validity and that it proves what it claims to prove, is insufficient to either require or support a decision for petitioner."

This kind of assumption is standard practice where one party claims it is entitled to judgment without a trial.  It is rare in an appeal that follows a trial in which the facts are actually adjudicated.

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