Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

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Catherine M. Grosso is a Professor at the Michigan State University College of Law.

Barbara O’Brien is a Professor at the Michigan State University College of Law.

Julie C. Roberts is an Assistant Federal Public Defender in the Capital Habeas Unit for the Southern District of Ohio.

Anthony Amsterdam urged litigators and scholars to focus on individual prosecutors’ offices or counties and to identify “a set of local institutions, conventions, and practices which are manifestly the residues of classic Southern apartheid”; to “conduct analyses of the impact of race in the sentencing patterns . . . in those specific counties or venues”; and to “investigate, analyze, and prepare evidence of the legacy of apartheid embedded in the counties’ political, economic, and social life, particularly as it bears on law enforcement, prosecution, and courthouse customs.” The goal, Amsterdam says, is “to build a case not solely on statistical evidence of discrimination but to supplement it with evidence of anecdotes and local custom.”

Hamilton County, Ohio, lies technically just north of the South, but it is close. Its history reflects the emblematic segregation and overt racism associated with the South. This paper documents this history. It also remains in the top 2% of counties producing a majority of executions nationally. This history and ongoing use of the death penalty made it an ideal candidate for the kind of hyper-localized inquiry that Amsterdam suggested.

This article reports a study of all cases charged with aggravated murder in Hamilton County from January 1992 to August 2017, including controlled analyses on three outcome measures. The model for the prosecutor’s decision to charge a case capitally showed, after taking into account potentially relevant race-neutral factors, that a case with at least one white victim faced odds of being charged capitally that were 4.54 times the odds of a similarly situated case with no white victims. The model of the decision to impose a death sentence overall (combining the charging and sentencing decisions) found that a black defendant who killed at least one white victim faced odds of receiving a death sentence that were 3.79 times those of all other similarly situated defendants. Finally, in a model of the death sentencing decisions limited to death-specified cases (that is, the cases in which the state sought death), a black defendant with at least one white victim faced odds of receiving a death sentence that were 5.33 higher than all other cases.

These findings are both theoretically and statistically significant (p < .01). The local practice and history, bolstered by the statistical analysis, makes a strong case that race has influenced the administration of capital punishment in Hamilton County, Ohio.

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