DISPARITIES IN DEATH PENALTY PROSECUTION AND PUNISHMENT: A Review of Recent Research and an Expanded Agenda

Capital murder is the most serious criminal offense, and capital sentencing entails the most consequential punishment decisions in society. This review will focus on contemporary empirical research on disparity in death penalty case processing and sentencing decisions, focusing on the race/ethnicity of defendants and victims, gender, defense representation, and differences between local courts. We first briefly recall key US Supreme Court decisions involving disparity, and provide a short overview of the case processing structure and key discretionary decision points of capital murder cases. We then review research on disparity conducted over the past three decades, delineated by prosecutorial discretion as compared to judicial or jury discretion. We conclude by framing research on the death penalty in terms of prominent theories of sentencing in general and outlining new directions for research. Such research will hopefully fill important gaps in scholarly understanding of punishment and provide guidance for law and policy efforts to come to gain traction on issues of fairness, arbitrariness, and equal protection surrounding the death penalty.