Reviews of Sentencing Studies From the 1930s Through the 1960s Found That Most Were
The Death Penalisation in Black and White: Who Lives, Who Dies, Who Decides
Posted on Jun 04, 1998
- Race
- Executive Summary
- The Sounds of Racism
- The Raw Data
- Taking Into Business relationship the Severity of Murders
- Mid-Range Cases Versus Farthermost Cases
- Black Defendants and the Race of the Victims
- Philadelphia Study: Conclusions
- National Patterns of Race Discrimination
- Effigy seven: Statistical Data in Death Punishment States Showing a Take a chance of Racial Discrimination 23
- No Relief in the Courts
- Report 2: The Race of the Determination-Makers
- Racial Bias Permeates the System
- Public Reaction
- Decision
- Appendix
It is tempting to pretend that minorities on expiry row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they dice. Such an illusion is ultimately corrosive, for the reverberations of injustice are not and so easily confined.
–Old U.Due south. Supreme Courtroom Justice William Brennan (1987)
Executive Summary Up
The results of two new studies which underscore the continuing injustice of racism in the application of the death punishment are being released through this report. The first written report documents the infectious presence of racism in the death penalization, and demonstrates that this problem has not slackened with fourth dimension, nor is it restricted to a single region of the country. The other study identifies one of the potential causes for this continuing crunch: those who are making the critical decease penalisation decisions in this country are almost exclusively white.
From the days of slavery in which black people were considered belongings, through the years of lynchings and Jim Crow laws, capital punishment has always been deeply affected past race. Unfortunately, the days of racial bias in the capital punishment are non a remnant of the past.
Ii of the country's foremost researchers on race and capital punishment, law professor David Baldus and statistician George Woodworth, along with colleagues in Philadelphia, have conducted a careful analysis of race and the death penalty in Philadelphia which reveals that the odds of receiving a capital punishment are virtually four times (3.9) higher if the defendant is black. These results were obtained afterward analyzing and controlling for case differences such every bit the severity of the crime and the background of the defendant. The information were subjected to various forms of analysis, but the conclusion was clear: blacks were being sentenced to decease far in backlog of other defendants for similar crimes.
A second study past Professor Jeffrey Pokorak and researchers at St. Mary'due south University Law Schoolhouse in Texas provides function of the explanation for why the application of the death penalty remains racially skewed. Their report constitute that the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United states, nearly 98% are white and only 1% are African-American.
These new empirical studies underscore a persistent design of racial disparities which has appeared throughout the country over the by 20 years. Examinations of the relationship between race and the death sentence, with varying levels of thoroughness and composure, take at present been conducted in every major expiry penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the shut connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to bear upon expiry sentencing than smoking affects the likelihood of dying from eye disease. The latter show has produced enormous changes in constabulary and societal practice, while racism in the expiry penalization has been largely ignored.
Despite overwhelming evidence of bigotry, the response of the courts has been to deny relief on the grounds that patterns of racial disparities are insufficient to bear witness racial bias in private cases. With the single exception of Kentucky which recently passed a version of the Racial Justice Deed, legislatures have turned their dorsum on corrective measures. Despite the prior case of legislation in response to similar discrimination in such areas as employment and housing, legislatures on both the federal and state level have failed to pass civil rights laws regarding the decease penalty for fear of stopping death penalty entirely. Then, the sore festers even as executions accelerate and appeals are curtailed.
The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The expiry penalization presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at blackness defendants by the prosecution and even by the defence force. Information technology results in blackness jurors beingness systematically barred from service, and in the devoting of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks. Such a system of injustice is not merely unfair and unconstitutional—it tears at the very principles to which this land struggles to adhere.
It is tempting to pretend that minorities on death row share a fate in no mode connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they dice. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.
– U.Southward. Supreme Court Justice William Brennan (1987) [2]
The Sounds of Racism Up
Blatant racism is seen and heard too ofttimes in courtrooms around the country. In death sentence cases, the use of derogatory slurs kindles the flames of prejudice and allows the jury to gauge harshly those they wish to scapegoat for the trouble of crime. A few examples illustrate the intensity of this racism:
- "One of you two is gonna hang for this. Since you're the nigger, you're elected."3 These words were spoken by a Texas police officer to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was after exonerated in 1990 subsequently ten years on death row.
- In preparing for the punishment phase of an African-American accused'due south trial, a white judge in Florida said in open court: "Since the nigger mom and dad are here anyhow, why don't we become alee and do the penalty phase today instead of having to subpoena them back at cost to the state."four Anthony Peek was sentenced to expiry and the sentence was upheld by the Florida Supreme Court in 1986 reviewing his claim of racial bias.
- A prosecutor in Alabama gave every bit his reason for hitting several potential jurors the fact that they were affiliated with Alabama State University — a predominantly black institution. This pretext was considered race neutral by the reviewing court. 5
- During the 1997 election campaign for Philadelphia's Commune Attorney, information technology was revealed that one of the candidates had produced, as an Banana D.A., a preparation video for new prosecutors in which he instructed them about whom to exclude from the jury, noting that "young black women are very bad" on the jury for a prosecutor, and that "blacks from low-income areas are less likely to convict."six The preparation tape likewise instructed the new recruits on how to hide the racial motivation for their jury strikes.
- In Missouri, Gauge Earl Blackwell issued a signed press release about his judicial ballot announcing his new amalgamation with the Republican Party while presiding over a death penalty case against an unemployed African-American defendant. The press release stated, in role: "[T]he Democrat political party places far too much accent on representing minorities … people who dont' (sic) want to work, and people with a pare that's any color but white … ."7 The judge denied a motion to recuse himself from the trial. The accused, Brian Kinder, was convicted and sentenced to death, and Missouri's Supreme Court affirmed in 1996.8
These examples are symbolic of a more systemic racism, and they provide a sense of how dissentious racial prejudice and insensitivity can be when someone is facing execution. Empirical studies which provide the national evidence of racism in capital punishment are disquisitional to understanding that this problem goes far across individual examples of prejudice.
The Raw Data Upwards
The first step in determining the presence of racial discrimination in the death penalty is to look at the raw data: from amidst the eligible homicides, how often are blackness defendants sentenced to decease and how often are others sentenced to death?
The raw data of death sentences in Philadelphia betwixt 1983 and 1993, provide the first piece of agonizing evidence that race discrimination may exist operating. The rate at which eligible black defendants were sentenced to death was about twoscore% higher than the rate for other eligible defendants. A sentencing rate is but a ratio of the number of decease sentences for a item group compared to the total number of cases of that group which would be eligible for a death judgement. In the chart below, a death sentencing rate of .18 for blacks means that for every 100 eligible blackness defendants, 18 will be sentenced to expiry. For other defendants, only 13 out of 100 volition be similarly sentenced.
Taking Into Business relationship the Severity of Murders Upward
In club to determine whether race influences death sentencing, the researchers turned to the same techniques used in medical research to determine whether cigarette smoking causes cancer, or frequent practise and good diet reduces heart attacks. Murder cases get death eligible through the beingness of sure aggravating factors which brand one murder "worse" than another. In deciding whether the death sentence should be sought, the prosecutor is supposed to consider the presence of such factors as whether a murder was committed with grave chance to the life of others, whether the murder was committed in the course of some other serious crime such as robbery or rape, whether torture was used in the commission of the murder, or whether the accused had a significant violent history. The jury is similarly told to consider such factors when deciding whether the judgement should exist life or death, once a guilty verdict is rendered.12
Through an analysis of murders in which the death penalty could have been sought, information technology is possible, through an assay of the defendants that were and were not sentenced to decease, to assign a predictive score, or coefficient, to various aggravating factors to measure how heavily each influences the likelihood of a death penalty. The researchers screened hundreds of factors, statutory and not-statutory, to develop models to explain how the system works. All statutory factors, and those not-statutory factors which significantly correlated with the issue were included.
Comparing the coefficients permits an average assessment of how much reliance was placed on the factor past the decision-makers. For example, the fact that the murder was committed in the class of some other felony has less impact than the fact that the defendant caused great harm, fear or pain. Statistically, in this study committing another felony had a relative predictive value of 0.8. On the other manus, if the murder was accompanied past torture, that factor was very pregnant and registered a predictive value of i.9. A murder committed with grave risk of death to others had a relatively high predictive value of 1.5. A factor which had no apparent effect would take a value of 0. The written report looked at a large class of such variables.
The race of the defendant is non supposed to influence whether a person is sentenced to expiry, but in Philadelphia it clearly does. (See Chart beneath.) Murders by blacks are treated as more severe and "deserving" of the death penalty because of the defendant's race. Existence a black defendant merits a score of 1.4 in predicting whether a decease sentence will ultimately upshot. This extra burden for black defendants is comparable to such legitimate aggravating factors every bit torture or "causing nifty impairment, fear or pain," which earned scores of ane.9 and 1.0 respectively, in predicting the sentence. Stated differently, in Philadelphia, the majuscule sentencing statute has operated as though being black was non just a concrete attribute, but as if it were one of the well-nigh important aggravating factors actually justifying the expiry penalisation.
The race of the defendant is a much stronger predictor that a instance volition outcome in a death judgement than the fact that the criminal offence was committed forth with some other felony (0.viii) or that the defendant killed with multiple stab wounds (0.9). Either when the prosecutor decides to seek the death penalisation in a particular case, or when the jury decides that death is the advisable sentence, on average, black defendants are considered "worse," regardless of the other factors in their case.
Mid-Range Cases Versus Extreme Cases Up
Race does non affect all cases every bit. Notorious series killers similar Ted Bundy or John Wayne Gacy, both white, are nearly sure to receive the death sentence regardless of their race. In the nigh highly aggravated cases, the fact that the accused is black is less of a factor pushing a case toward a death sentence. The aforementioned can be said for cases of very low severity: race is less likely to exist a factor in cases where there is petty inflammatory evidence.
But in the "mid-range" of severity (or aggravation), race plays a very significant role. When cases were ranked from i to viii in increasing severity, cases in categories 1 (least severe) and viii (about astringent) showed piddling or no discrimination against black defendants. Only in the center categories iii through seven, the disproportionate treatment of blackness defendants, as compared to all other defendants, was quite pronounced. For instance, in cases of level 5 severity, 25% of the blackness defendants received the death penalty, only merely five% of the other defendants received death, and the difference between these sentencing rates is twenty percentage points. At level 6 severity, the deviation was 15 pct points, and at level iv severity, the difference in death sentencing rates was 11 percentage points higher for black defendants. These results are summarized in the graph beneath.
In other areas of society, such as employment or housing, racial disparities similar to those shown in this capital punishment written report take raised deep concerns and take prompted civil rights legislation to protect the rights of minorities.13 Just with the expiry penalty, this articulate evidence of racial bias has gone uncorrected.
Black Defendants and the Race of the Victims Upwardly
Some other measure of race's impact on the death sentence is the combined event of the race of the defendant and the race of the victim. In the Philadelphia study, the racial combination which was most likely to upshot in a death sentence was a blackness defendant with a nonblack victim, regardless of how severe the murder committed. Black-on-black crimes were less probable to receive a death penalty, followed past crimes by other defendants, regardless of the race of their victims.
As noted higher up, in cases deemed to be least astringent and those found to be most severe, the connection between race and the likelihood of a death sentence tends to lessen. For example, few defendants of whatsoever race are likely to get the decease penalty in a case involving defendants with no prior record and where the killing may have been accidental. But for the bulk of crimes which are in the mid-level of severity, blacks who kill nonblacks are more probable to receive the expiry penalization than blacks who kill blacks, and they have a death sentencing rate much larger than the charge per unit for defendants of other races who commit similarly severe murders of black victims.
It is important to notation that these mid-range cases are precisely the ones in which prosecutors and jurors take the well-nigh discretion on seeking and imposing the death punishment. And when discretion is more prevalent, race may more hands become the deciding cistron in who lives and who dies.
These results are summarized in the graph below. Reading the graph from left to right, black defendants, regardless of their victims' race, are consistently more likely to receive a death sentence than other defendants, and this holds true to varying degrees throughout the increasing levels of crime severity. Similarly, black victim cases are less likely to receive the death penalization, regardless of the race of the accused.
Philadelphia Study: Conclusions Up
Later on controlling for levels of crime severity and the accused's criminal groundwork, the average death sentencing rates in Philadelphia were .18 for black defendants and .thirteen for other defendants, which amounts to a 38% college rate for blacks (coincidentally, these rates were approximately the same equally the unadjusted rates on p.8). The disparities for various racial combinations of defendant and victim were even wider and are shown in the table beneath.
Whichever measures the researchers employed, the statistics pointed to the aforementioned conclusion: blackness defendants on boilerplate face a distinctly higher take a chance of receiving a death penalty than all other similarly situated defendants. The various independent tests were and so thoroughly consequent that they pointed to race discrimination as the underlying cause. The researchers stated: "In the face of these results, we consider it implausible that the estimated disparities are a product of adventure or reverberate a failure to control for important omitted case characteristics… . In short, nosotros believe it would exist extremely unlikely to observe disparities of this magnitude and consistency if there were substantial equality in the treatment of defendants in this system."14
For those on death row from Philadelphia, these numbers translate into a harsh and deadly reality: if the death penalty were applied to blacks as it is to others, there would be far fewer blacks facing execution.
National Patterns of Race Bigotry Up
When people of colour are killed in the inner city, when homeless people are killed, when the "nobodies" are killed, district attorneys practise non seek to avenge their deaths. Black, Hispanic, or poor families who have a loved one murdered non only don't await the district attorney's part to pursue the expiry penalty—which, of grade, is both costly and time consuming—only are surprised when the case is prosecuted at all. -Sister Helen Prejean, CSJxv
If the racial disparities documented in the written report of capital cases in Philadelphia were unique, they might be dismissed every bit simply a local problem requiring a local solution. Only such racial patterns accept appeared in study after study all over the state and over an all-encompassing period of fourth dimension.
In the late 1980s, Congress asked the General Accounting Function (GAO) to review the empirical studies on race and the capital punishment which had been conducted up to that time. The agency reviewed 28 studies regarding both race of defendant and race of victim discrimination. Their review included studies utilizing various methodologies and degrees of statistical composure and examined such various states equally California, Florida, Georgia, Illinois, Kentucky, Louisiana, Mississippi, New Jersey, and Texas. Their conclusion in 1990, based on the vast amount of data nerveless, was unequivocal:
In 82% of the studies, race of victim was plant to influence the likelihood of being charged with uppercase murder or receiving a capital punishment, i.e., those who murdered whites were found to exist more likely to exist sentenced to decease than those who murdered blacks. This finding was remarkably consequent beyond information sets, states, information collection methods, and analytic techniques. The finding held for loftier, medium, and depression quality studies.sixteen
One of the most sophisticated of the studies reviewed by the GAO was the report of race and the capital punishment in Georgia. This study looked at 2400 cases candy in Georgia over a seven year menstruum. Information technology showed that, even when controlling for the many variables which might make one example worse than another, defendants whose victims were white, faced, on average, odds of receiving a capital punishment that were 4.three times higher than similarly situated defendants whose victims were black.17 The report controlled for hundreds of variables such as the level of violence in the criminal offence and the prior criminal tape of the accused.
The significance of this racial disparity is highlighted by comparing information technology to a smoker'southward increased odds of dying from coronary artery illness. A pivotal study establish their odds of dying were approximately one.7 times higher than for non-smokers of similar ages,18 a factor smaller than that linking race and the expiry penalisation. Such statistical evidence about the dangers of smoking led the Surgeon General to conclude that "cigarette smoking is a cause of coronary heart affliction,"19 which, in plow, helped trigger legislation and significant reform. Even so the correlation between race and the death penalty is much stronger and has been met with virtual silence.
The written report of racial disparities in Georgia was the basis for the nearly important case brought before the U.S. Supreme Courtroom on the outcome of race and the death sentence, McCleskey v. Kemp (1987).twenty The enquiry was conducted past David Baldus, Professor of Police at the University of Iowa College of Law, and George Woodworth, Professor of Statistics also at the University of Iowa, both of whom participated in the Philadelphia report discussed in a higher place. For their work in what has become known as "the Baldus study," these researchers were awarded the Harry Kalven Prize for distinguished scholarship by the Police and Lodge Association.
In a recent report prepared for the American Bar Clan, Professors Baldus and Woodworth have expanded on the GAO's review of studies on race discrimination in capital cases.21 They found that at that place are some relevant information in three-quarters of the states with prisoners on expiry row. In 93% of those states, there is show of race-of-victim disparities, i.east., the white race of the person murdered correlated with whether a death sentence will exist given in a particular case. In near half of those states, the race of the defendant as well served as a predictor of who received a expiry judgement. The disparities in 9 states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are particularly notable considering of their reliance on well-controlled studies.
These disparities reveal a disturbing and consistent trend indicating race-of-victim discrimination. For case, in Florida, a defendant's odds of receiving a death sentence are 4.8 times college if the victim was white than if the victim is black in similarly aggravated cases. In Illinois, the multiplier is 4, in Oklahoma it is 4.3, in North Carolina 4.4, and in Mississippi it is 5.5.22 The tabular array below shows how frequently race-of-victim discrimination has been detected, equally well as the states where race-of-defendant disparities take been shown.
Effigy 7: Statistical Data in Death Penalisation States Showing a Gamble of Racial Discrimination 23 Upward
Merely studies whose results were statistically significant, or where the ratio between death sentencing (or prosecutorial charging) rates (east.g., between white victim and blackness victim cases) was one.5 or larger and with a sample size of at least ten cases in each group, were included. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are based on well-controlled studies. The results in the other states are from less well-controlled studies and are simply suggestive.
All of the race of victim disparities except 1 (Delaware) were in the direction of more death sentences in white victim cases.
All of the race of accused disparities except two (Florida and Tennessee) were in the direction of more death sentences for blackness defendants.
A especially egregious instance of race of victim discrimination was revealed in a recent review of the cases from Kentucky'due south death row. Researchers at the University of Louisville had found in 1995 that, as in other states, blacks who killed whites were more likely to receive the death penalty than any other offender-victim combination.24 In fact, looking at the makeup of Kentucky's death row in 1996 revealed that 100% of the inmates were there for murdering a white victim, and none were there for the murder of a black victim, despite the fact that there have been over 1,000 African-Americans murdered in Kentucky since the decease penalty was reinstated.25This gross disparity amidst capital cases sends a message that the taking of a white life is more serious than the taking of a black life, and that Kentucky's courts manus out death sentences on that ground.
This biased utilize of the death punishment for the murder of those in the white community, merely not those in the black community, led to the introduction of legislation allowing consideration of such patterns of racial disparities. The bill, referred to as the "Racial Justice Act," failed in the Kentucky legislature in 1996,26 but was passed in 1998. It will allow race-based challenges to prosecutorial decisions to seek a decease sentence.
No Relief in the Courts Up
Despite these pervasive patterns implying racial bigotry, courts have been closed to challenges raising this result. In McCleskey v. Kemp, the U.South. Supreme Court held that the defendant had to show that he was personally discriminated against in the course of the prosecution. "Merely" showing a agonizing pattern of racial disparities in Georgia over a long flow of time was not sufficient to prove bias in his case.27
The federal courts have taken their cue from McCleskey and have non granted relief based on a racial application of the death sentence in any case.28 When such claims of racial bias are raised in ceremonious rights suits alleging employment or housing discrimination, ceremonious rights legislation instructs the courts to apply a more utilitarian burden of proof and provides a risk for relief.29 In criminal cases, still, the courts require the defense force to "get within" the listen of the prosecutor or jury and prove purposeful race discrimination directed at the accused, an almost incommunicable task.
Report Two: The Race of the Decision-Makers Up
The death penalty is essentially an capricious penalty. In that location are no objective rules or guidelines for when a prosecutor should seek the capital punishment, when a jury should recommend it, and when a judge should requite information technology. This lack of objective, measurable standards ensures that the application of the decease punishment will be discriminatory confronting racial, gender, and ethnic groups. -Rev. Jesse Jackson (1996)thirty
Every bit the analysis above indicates, racially biased decisions tin can readily enter the criminal justice system through the discretion given to prosecutors to selectively seek the death penalty in some cases but not others. The GAO review of race discrimination noted that "race of victim influence was establish at all stages of the criminal justice process" and that "[t]he testify for the race of victim influence was stronger for the before stages of the judicial procedure (e.one thousand., prosecutorial decision to charge the defendant with a capital letter criminal offence, decision to proceed to trial rather than plea deal) than in later stages."31
The decease penalty could be sought in far more cases than it actually is, and prosecutors use a diverseness of factors to decide which cases are deserving of the land'southward worst penalisation. That discretion more than likely results in capital prosecutions when the victim in the underlying murder is white, and in some states, when the defendant is blackness. Except for extreme cases, as when a blackness police officer is killed, the murder of people of colour is not treated as seriously as the murder of white people.
One of the probable reasons for this discrepancy is that almost all the prosecutors making the key decision about whether death will be sought are white. According to a new study soon to be published in the Cornell Law Review, only 1 percent of the District Attorneys in decease penalty states are black. This staggering imbalance in the racial makeup of the life and decease determination-makers may partially explicate the persistent racial imbalance in the utilise of the death penalization.
Professor Jeffrey Pokorak of St. Mary'southward University School of Constabulary collected data regarding the race and gender of the regime officials empowered to prosecute criminal offenses, and in particular, capital offenses from all 38 states that use the capital punishment. The report was ended in February, 1998.
It revealed that simply 1% of the District Attorneys in death penalty states in this state are black and only one% are Hispanic. The remaining 97.5% are white, and almost all of them are male. The nautical chart below Fig. 9) summarizes the racial findings of Professor Pokorak'south study.
The implications of this report go far beyond the shocking numbers and racial isolation of those in this fundamental police enforcement position. When a prosecutor is faced with a crime in his community, he often consults with the family of the victim as to whether the death sentence should be sought. If the victim's family is prominent, white, and likely to back up him in his side by side election, there may be a greater willingness to expend the extensive financial resources and time which a death penalty prosecution will take. Justice Harry A. Blackmun
The manner that racial bias can play out in practice is illustrated by ane of the central death penalty jurisdictions in the country: Georgia's Chattahoochee Judicial District, which has sent more people to expiry row than whatever other district in the state. In a contempo law review article, Stephen Bright, of the Southern Center for Human Rights in Atlanta, described the prosecutor'south practice in that location:
- [A]n investigation of all murder cases prosecuted … from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim's family and discussed whether to seek the expiry penalty. In a example involving the murder of the girl of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the expiry penalization at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for estimate in the adjacent ballot. The contribution was the largest received by the District Attorney. At that place were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty afterwards coming together with the family of a white victim. But prosecutors failed to see with African-Americans whose family members had been murdered to decide what sentence they wanted. Most were not fifty-fifty notified that the example had been resolved. Every bit a consequence of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the upper-case letter cases were white victim cases.33
Racial Bias Permeates the System Upward
Even under the virtually sophisticated capital punishment statutes, race continues to play a major role in determining who shall live and who shall die. -Justice Harry Blackmun, 1994 34
Prosecutors not simply make up one's mind who should be charged with a particular level of offense, they also have a significant affect on the way the trial is conducted. When a prosecutor refers to an Hispanic accused as "a chili-eating bastard,"35 as happened in a Colorado death penalty case, information technology sets a tone of credence of racial prejudice for the entire trial. Similarly, the selection of juries is an essential part of this procedure, and some prosecutors have fabricated a practice of eliminating blacks from their prospective juries, thereby increasing the likelihood of a race-based decision.
Jack McMahon, for example, was an Assistant District Attorney for many years in Philadelphia. During his recent campaign for the District Attorney's position, it was revealed that he advisedly instructed new prosecutors in his office on the importance of keeping many blacks off loftier level criminal cases. His training video for prosecutors stated that "young blackness women are very bad" on the jury for a prosecutor, and that "blacks from low-income areas are less likely to convict."36
If a new prosecutor did not follow his directives, he or she faced dismissal: "And if you become in there and any one of you remember you're going to exist some noble ceremonious libertarian and try to get jurors [who say they'll be off-white], that's ridiculous. You lot'll lose and you'll be out of the office; … ."37
His tape urged his fellow prosecutors to pick juries that they knew would be unfair: "[T]he merely fashion you're going to do your best is to become jurors that are every bit unfair and more probable to convict than everyone else in that room."38
Mr. McMahon, himself, prosecuted 36 murder cases and some of those defendants are presently on death row in Pennsylvania. In selecting juries, McMahon proficient what he preached. In a review of 16 first-caste murder cases prosecuted by McMahon, black jurors were struck iv times equally often equally other jurors, and black women jurors were struck 6 times as oft as non-African-American males.39
But McMahon was certainly not alone in this practice of racial bigotry in jury selection. Statistics from the race study in Philadelphia discussed higher up showed that from 1983 to 1993 prosecutors struck 52% of all black potential jurors, just only 23% of other potential jurors.
These same practices are common in other jurisdictions. According to a recent federal court conclusion in Alabama reviewing a death penalty instance, the Tuscaloosa District Attorney's Part had a "standard operating procedure … to utilise the peremptory challenges to strike equally many blacks as possible from the venires in cases involving serious crimes." xl
In the Chattahoochee Judicial Commune of Georgia, described above, prosecutors used 83% of their peremptory jury strikes against African-Americans. Six black defendants were tried by all-white juries.41
In the Ocmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases betwixt 1974 and 1994. Twenty-four were confronting black defendants. In cases in which the defendant was black and the victim was white, Briley used 96 out of his 103 jury challenges against African-Americans.42
In Chambers Canton, Alabama, the prosecutor kept lists dividing prospective jurors into four categories: "strong," "medium," "weak," and "black." Such a process led to hitting 26 African-American jurors, resulting in 3 all-white juries in the death sentence prosecution of Albert Jefferson, a black defendant whose victim was white. An Alabama court constitute that no racial discrimination had occurred.43
The U.S. Supreme Court in Batson 5. Kentucky ruled that it is unconstitutional to strike jurors solely on the basis of race. Prosecutors, however, sometimes circumvent this ruling by providing race-neutral reasons as a pretext for eliminating unwanted blackness jurors. In Philadelphia, Banana D.A. Jack McMahon prepared his new prosecutors for only such manipulation in his training tape mentioned in a higher place:
- In the futurity, nosotros're going to accept to be aware of [Batson], and the best way to avert any bug with it is to protect yourself. And my communication would exist in that situation is when you exercise have a black jury, y'all question them at length. An on this little sheet that you lot have, mark something downward that yous can articulate later on if something happens … .
So if—let'due south say y'all strike three blacks to start with, the first three people. And then it'south like the defense attorney makes an objection proverb that yous're striking blacks. Well, yous're not going to exist able to go back and say, oh— and make up something about why you did it. Write it down correct then and at that place… . And question them [the blackness jurors], say, "Well, he had a —had a" — "Well the adult female had a kid about the aforementioned age as the accused and I thought she'd be sympathetic to him" or "She's unemployed and I just don't similar unemployed people" … .
So sometimes under that line you may want to ask more questions of those people so it gives y'all more armament to make an articulable reason equally to why y'all are hitting them, not for race.45
In some other jurisdiction, prosecutors followed McMahon'southward strategy precisely. Their spurious reasons for excluding black jurors were exposed past the Florida Supreme Courtroom in reviewing the death sentence confidence of Robert Roundtree. At trial, the judge just accepted the state's explanations at face value as the prosecutor eliminated ten blackness jurors from the jury puddle. The first two black jurors were dismissed because they were "inappropriately dressed" and one had on "pointy New York shoes." At the aforementioned time, a similarly dressed white juror was accepted. Another black juror was rejected because she was thirty years old and unemployed, but a white unemployed female was accepted. Iii blacks were excused, in part, considering they were unmarried, just five white unmarried jurors were accepted. And the reason given for hit some other blackness woman was that the state preferred a predominantly male jury, although the land had accepted 13 white females, 6 of whom sat on the final jury. The reviewing court constitute that "the proffered reasons were a pretext for racial discrimination" and reversed the conviction.46
Prosecutors are not lone in interim out of racial prejudice. Judges, defense attorneys and jurors can as well display harmful racial bias. Information technology is the accused, however, who suffers the consequences. In the death penalty trial of Ramon Mata in Texas, the prosecutor and the defence force attorney agreed to alibi all prospective minority race jurors, thereby ensuring an all white jury. The U.S. Courtroom of Appeals for the 5th Circuit found this to be harmless fault.47
In the Georgia trial of Wilburn Dobbs, a black homo charged with the murder of a white human, both the judge and his chaser referred to Dobbs as a "colored boy." The defense chaser expressed his opinion that "blacks are uneducated and would non make good teachers, but practise make good basketball players," and referred to the black community in Chattanooga as "black male child jungle."48 Dobbs was sentenced to death, and his conviction has been upheld by the Georgia courts.
In Utah, African-American William Andrews was executed despite the presence of a annotation establish past a juror depicting a stick figure on a gallows with the inscription: "Hang the Nigger'southward (sic)." Even after seeing this testify of racial prejudice inside the all-white jury, the trial judge never sought to determine who wrote the note or how many jurors saw information technology.49
William Henry Hance, a mentally impaired blackness man was sentenced to death in Georgia despite the fact that one of the jurors said she did not vote for death. The only black person on the jury stated that she had voted for a life sentence considering of Hance's mental condition, just her vote was ignored. In the courtroom, she was intimidated against speaking out, but she later revealed her vote and the strong racial overtones in the jury room. Some other juror signed an affirmation confirming the black juror's story, simply Mr. Hance was executed anyway in 1994.50
Public Reaction Upwards
Past reserving the penalization of death for black defendants, or for the poor, or for those convicted of killing white persons, we perpetrate the ugly legacy of slavery— teaching our children that some lives are inherently less precious than others. -Rev. Joseph E. Lowery, one-time President, Southern Christian Leadership Conference, 1989 51
After the Civil War and the emancipation of the slaves, lynchings of black people were mutual in the U. South. From the late 1800s, at least 4,743 people were killed by lynch mobs, with 90% of the lynchings occurring in the South, and most of the victims existence blackness people.52 Lynchings were praised as necessary and just, and even some governors deferred to the public demand for vengeance. Georgia populist Tom Watson observed that "Lynch law is a expert sign; it shows that a sense of justice withal lives among the people."53
Revulsion at the spectacle and gross injustices of the lynching era eventually led to the formation of the National Association for the Advancement of Colored People so to the demise of lynching.54 Just the disparities axiomatic in today'southward capital punishment indicate that prejudice and racism remain a potent force infecting our organization of justice.
These racial disparities in death sentence have drawn increasingly disquisitional reaction from legal and civil rights groups both nationally and internationally. Subsequently the Supreme Court narrowly rejected a challenge to the racially biased application of the death punishment in Georgia,55 civil rights groups and many newspaper editorials chosen for the passage of the Racial Justice Act to remedy this injustice on a national level. Although this proposed legislation was passed by the U.Southward. House of Representatives in 1994 and 1990, it was ultimately defeated on the theory that such a racial research would "abolish" the expiry punishment. Only Kentucky has passed similar legislation on the state level.
Equally a result of this and other inequities in the administration of death sentence, the ABA, which had earlier recommended the passage of the Racial Justice Human activity,56 has called for a complete moratorium on executions until such bug tin be fairly addressed. Other bar associations such as the Pennsylvania Bar, the Ohio Bar, the Chicago Council of Lawyers, the Massachusetts Bar and the Philadelphia Bar have either endorsed the ABA's resolution or passed similar resolutions. Over 100 other organizations have also endorsed motions to finish executions, at least until a greater sense of justice tin be restored to the process.57
Evidence of racial discrimination in the U.S. death penalty system has attracted worldwide attention. In 1996, the International Commission of Jurists, whose members include respected judges from around the world, visited the United states and researched the utilise of the capital punishment. Their report was sharply disquisitional of the way the expiry penalty is existence applied, particularly in regards to race: "The Mission is of the stance that … the administration of uppercase punishment in the United States continues to be discriminatory and unjust — and hence 'capricious' —, and thus not in consonance with Articles 6 and 14 of the Political Covenant and Article 2(c) of the Race Convention."58
In a March, 1998 decision,59 the Inter-American Commission on Homo Rights concluded that the U.S. had violated international law and should compensate the relatives of William Andrews, who was executed in Utah in 1992, because of racial bias in his instance (discussed above).
And most recently, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions filed a report with the U.N. Commission on Human Rights after his visit to the U.Due south. stating that "race, ethnic origin and economic condition announced to exist fundamental determinants of who will, and will non, receive a sentence of decease."60
In Philadelphia, the Secretarial assistant General of Amnesty International criticized Pennsylvania'due south expiry penalty as "one of the well-nigh racist and unfair in the U.S."61 Hours after his speech, the Philadelphia Bar voted in favor of a resolution calling for a moratorium on the expiry penalty in that state. The Governor's function responded past pointing out that the only ii persons executed in Pennsylvania in recent times were both white. However, these men were the exception, having been executed before others only because they waived their appeals. The overwhelming majority of those on the country'south death row are black, and 84% of those on death row from Philadelphia are black.62
Religious opposition to the death punishment has also cited the racial unfairness in its application. Recently, all the Catholic Bishops in Texas signed a argument calling for an finish to the death penalty, noting: "The imposition of the death penalty has resulted in racial bias. In fact, the race of the victim has proven to be the determining gene in deciding whether to prosecute capital cases."63 Similar concerns have been voiced by the National Conference of Catholic Bishops and the leaders of other denominations.
The public in this country is very aware of the part race plays in the death penalisation. A recent poll by Newsweek Mag revealed that about half of all Americans believe that a blackness person is more likely to receive the death penalty than a white person for the aforementioned crime.65 When such public reaction will result in a challenge to this injustice is not articulate. Until then, information technology remains a serious source of partitioning among the races and an embarrassment to the U.S.'s pursuit of international human being rights.
Conclusion Up
Those whom we would banish from society or from the man customs itself oftentimes speak in too faint a voice to exist heard above society'due south need for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not solitary dictate the conditions of social life. -Justice William Brennan, 198766
The influence of race on the death penalty is pervasive and corrosive. In other areas of the law, protections have been built in to limit the effects of systemic racism when the evidence of its impact is clear. With the capital punishment, however, such cosmetic measures have been blocked past those who claim that capital penalty would bog downwards if racial fairness was required. And so, the sore festers.
The new studies revealed through this report add to an overwhelming body of evidence that race plays a decisive part in the question of who lives and dies past execution in this country. Race influences which cases are chosen for upper-case letter prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries which determine the sentence. Racial furnishings have been shown not just in isolated instances, simply in virtually every state for which disparities take been estimated and over an extensive period of time.
Those who die because of this racism are not the kind of people who usually evoke the public's sympathy. Many have committed horrendous crimes. Only crimes no less horrendous are committed by white offenders or against black victims, and yet the killers in those cases are generally spared decease. The death penalty today is a system which vents society'southward acrimony over the problem of crime on a select few. The existing information conspicuously suggest that many of the decease sentences are a production of racial discrimination. In that location is no way to maintain our avowed adherence to equal justice under the law, while ignoring such racial injustice in the state's taking of life.
Appendix Upwards
Source: https://deathpenaltyinfo.org/facts-and-research/dpic-reports/in-depth/the-death-penalty-in-black-and-white-who-lives-who-dies-who-decides
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