Equal justice under law? Prosecutor demographics and the death penalty

Abstract

Prior research has established that crime victims’ and defendants’ demographic traits affect the sentence that criminal defendants receive. In addition, previous studies have found that judges’ and juries’ biases affect the outcomes in criminal cases. Yet, despite significant scholarly attention to the effect of race and gender on criminal sentencing, no previous study has explored whether prosecutors’ demographic traits influence the outcome of criminal cases. This is surprising, given that prosecutors are responsible for determining what crimes defendants are charged with and whether to pursue the death penalty in eligible cases. Here, we utilize data on federal death penalty‐eligible cases and the prosecutors who tried those cases to explore whether federal prosecutors’ demographic traits have an effect on whether the death penalty is imposed. We find that both race and gender have statistically significant effects on whether a defendant receives the death penalty, even when case‐specific effects including victim and defendant characteristics are controlled for.

The prosecutor gender gap in Texas death penalty cases

“…As the masculine focal concerns premise suggests, the baseline assumptions these prosecutors have about the death penalty vary by gender in such a way that would render men more disposed than women to seek the death penalty. Gunderson (2022) and Robertson and Bell (2022) contribute rare studies that consider the relationship between prosecutor gender and legal outcomes. Gunderson finds a relationship between county prosecutor gender and incarceration, such that women prosecutors were associated with a lower incarceration rate.…”

“…Gunderson (2022) and Robertson and Bell (2022) contribute rare studies that consider the relationship between prosecutor gender and legal outcomes. Gunderson finds a relationship between county prosecutor gender and incarceration, such that women prosecutors were associated with a lower incarceration rate.…”

“…Gunderson finds a relationship between county prosecutor gender and incarceration, such that women prosecutors were associated with a lower incarceration rate. Focusing on federal prosecutions from 1988 to 2016, Robertson and Bell (2022) find that female prosecutors are associated with a lower death sentencing rate (see also Ward, Farrell, and Rousseau 2009).…”

“…Informed by a theory of masculine focal concerns and research that suggests women and men may prosecute differently, we respond to the call issued by Robertson and Bell (2022) who write that “considering prosecutors’ demographic traits may be necessary” in pursuit of fair sentencing because “prosecutors’ own biases may contribute to the disparities that have long been observed to exist within the criminal justice system” (p. 1303). Our analysis focuses on prosecutors in capital cases in Texas.…”

“…This power has not attracted commensurate scholarly analysis (Robertson and Bell 2022). “Studying prosecutors is a significant empirical challenge,” Gunderson (2022, p. 827) points out.…”