The riots in Ferguson, Missouri continue to dominate headlines around the world. Even the brutal dictatorship of North Korea has got in on the act, accusing the United States of being a ‘human rights tundra’. The disturbances follow a grand jury decision not to indict a police officer for the fatal shooting of a black teenager, allegedly because of racial bias.
Liberal opinion everywhere appears to regard the American judicial system as being irredeemably racially biased. Amnesty International, for example, proclaimed that ‘African Americans are disproportionately represented among people condemned to death in the USA. While they make up 12 percent of the national population, they account for more than 40 percent of the country’s current death row inmates, and one in three of those executed since 1977’. But simple declarations such as this are no real use as evidence of bias. Violent crime rates are much higher amongst ethnic minorities than they are amongst whites. So the former will be convicted more frequently than the latter.
A sophisticated analysis of the decisions of courts in the US is published in the latest issue of the American Economic Review. Alberto Alesina of Harvard and Elena La Ferrara of the Universita Bocconi in Milan examine sentences of capital punishment for evidence either that blacks convicted of murder are more likely to be sentenced to death or, importantly, that such punishment is more likely if the victim is white. They use a very neat approach, which takes advantage of the appeal system in America. Capital sentences imposed by the initial court are automatically appealed, first to the state court and then, if they are upheld, in a federal habeas corpus petition. If the initial court is unbiased, Alesina and La Ferrara argue, the reversal rate of sentences by the upper courts should be the same, regardless of the race of the accused or the victim.
The overall finding is that there is indeed evidence which is consistent with racial prejudice. The lower courts do give more death sentences which are then reversed in cases which involve a minority defendant killing white victims. The reversal rates are 3 per cent higher for minority defendants at the first level of appeal than they are for whites, and 9 per cent at the highest level. These are not dramatic, but they do indicate some bias exists. The authors carry out extensive checks to make sure that their results are valid. An interesting one is that it does not matter whether the judge in the higher court has a Democrat or Republican background.
The most intriguing aspect is that the bias is entirely confined to the Southern states. Cultural attitudes can be remarkably persistent. It is 150 years since Americans fought each other over slavery, but the echo of the differences can still just be heard today. In the rest of the United States, justice does indeed appear to blind.
As published in City AM on Tuesday 2nd December