Prosecutorial discretion in seeking death: An analysis of racial disparity in the pretrial stages of case processing in a midwestern county

In the 1987 case of McCleskey v. Kemp, the U.S. Supreme Court appeared to foreclose the possibility of challenging racial bias in capital sentencing by using statistically based claims of discrimination. McCleskey, however, does not prevent a challenge to decisions made by particular individuals during the capital punishment process. In this study we examined pretrial decisions made by, or under the direction of, one prosecutor to determine whether those decisions had been influenced by race. We found that homicide cases involving black defendants and white victims fared worse than other racial combinations in all of the pretrial decisions made: They were more likely to result in first-degree murder charges, to be served notice of aggravating circumstances, and to proceed to capital trial.