Leigh Buchanan Bienen: Works

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Year: 1988
Author: Leigh Buchanan Bienen
Publisher:  Journal of Criminal Law and Criminology
Issue: Volume 79, Issue 1, Article 6
Description: The Arbitrariness of the Death Penalty was published a few months before the United States Supreme Court handed down McCleskey v. Kemp, the case challenging the imposition of capital punishment in Georgia on the basis of a comprehensive statistical study conducted by Professor David Baldus and his colleagues at The State University of Iowa. The five member majority in McCleskey rejected a statis­tical offer of proof of racial discrimination based upon a sophisticated analysis of over two thousand homicide cases.2 Why, then, do we need another study of capital punishment in yet an­other jurisdiction? Isn’t it all now beside the point? The United States Supreme Court has rejected once and for all the argument that statistics can prove that the death penalty is applied arbitrarily. Hasn’t this case ruled out statistical arguments that race is a signifi­cant factor in death penalty decision making? The answer is yes and no.

The Arbitrariness of the Death Penalty is a study of North Carolina homicide cases from June 1, 1977 to May 31, 1978, the first year of the reimposition of the death penalty in North Carolina. The statis­tical analysis begins with 604 identified defendants and proceeds to analyze 489 defendant-victim case units. There were eight death sentences in the group. Barry Nakell and Kenneth Hardy contribute an entirely new data set and a fresh statistical approach to the con­stitutional questions addressed in McCleskey. A different state, a dif­ferent time period, a somewhat different methodology, and a totally independent research team are some of the factors unique to their study. Yet the conclusions do not contradict the Baldus study. Race of the victim and race of defendant and victim combined were not insignificant effects.

There now have been a number of totally independent studies finding a race of victim effect in capital case processing…


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