Reviews of Sentencing Studies From the 1930s Through the 1960s Found That Most Were
The Decease Punishment in Blackness 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
- Figure 7: Statistical Data in Capital punishment States Showing a Hazard of Racial Discrimination 23
- No Relief in the Courts
- Study II: The Race of the Determination-Makers
- Racial Bias Permeates the Organisation
- Public Reaction
- Conclusion
- Appendix
It is tempting to pretend that minorities on expiry row share a fate in no style connected to our ain, that our treatment of them sounds no echoes across the chambers in which they dice. Such an illusion is ultimately corrosive, for the reverberations of injustice are non then easily confined.
–Former U.Southward. Supreme Courtroom Justice William Brennan (1987)
Executive Summary Up
The results of 2 new studies which underscore the continuing injustice of racism in the application of the capital punishment are being released through this written report. The outset study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with fourth dimension, nor is it restricted to a single region of the state. The other study identifies one of the potential causes for this continuing crisis: those who are making the critical death penalty decisions in this country are almost exclusively white.
From the days of slavery in which black people were considered property, through the years of lynchings and Jim Crow laws, death penalty has always been deeply affected by race. Unfortunately, the days of racial bias in the decease penalty are not a remnant of the past.
Two of the country'southward foremost researchers on race and death sentence, law professor David Baldus and statistician George Woodworth, along with colleagues in Philadelphia, have conducted a careful assay of race and the capital punishment in Philadelphia which reveals that the odds of receiving a expiry sentence are nearly four times (three.nine) college if the accused is black. These results were obtained after analyzing and decision-making for case differences such equally the severity of the crime and the background of the defendant. The data were subjected to various forms of analysis, but the conclusion was clear: blacks were being sentenced to death far in backlog of other defendants for like crimes.
A 2d study by Professor Jeffrey Pokorak and researchers at St. Mary'southward University Law Schoolhouse in Texas provides office of the explanation for why the awarding of the capital punishment remains racially skewed. Their study found that the key decision makers in expiry cases effectually the land are virtually exclusively white men. Of the principal District Attorneys in counties using the capital punishment in the United States, most 98% are white and only i% are African-American.
These new empirical studies underscore a persistent design of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the human relationship betwixt race and the capital punishment, with varying levels of thoroughness and sophistication, have now been conducted in every major capital punishment 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 close connection between race and the capital punishment is shown when compared to studies in other fields. Race is more probable to bear on death sentencing than smoking affects the likelihood of dying from centre disease. The latter evidence has produced enormous changes in police and societal practise, while racism in the death penalty has been largely ignored.
Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief on the grounds that patterns of racial disparities are bereft to prove racial bias in individual cases. With the single exception of Kentucky which recently passed a version of the Racial Justice Act, legislatures have turned their back on corrective measures. Despite the prior example of legislation in response to similar discrimination in such areas as employment and housing, legislatures on both the federal and state level take failed to pass civil rights laws regarding the decease penalty for fear of stopping death penalty entirely. And so, 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 beingness made along racial lines by a about all white grouping of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In private cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even past the defense force. It results in blackness jurors being systematically barred from service, and in the devoting of more than resources to white victims of homicide at the expense of black victims. And it results in a death penalisation in which blacks are frequently put to death for murdering whites, merely whites are virtually never executed for murdering blacks. Such a organization of injustice is not merely unfair and unconstitutional—it tears at the very principles to which this country struggles to adhere.
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 die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not and so easily confined.
– U.Due south. Supreme Court Justice William Brennan (1987) [2]
The Sounds of Racism Up
Breathy racism is seen and heard too often in courtrooms around the country. In death sentence cases, the utilize of derogatory slurs kindles the flames of prejudice and allows the jury to gauge harshly those they wish to scapegoat for the problem 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 lot're elected."three These words were spoken by a Texas police officeholder to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was later exonerated in 1990 afterwards ten years on death row.
- In preparing for the penalty phase of an African-American defendant's trial, a white judge in Florida said in open court: "Since the nigger mom and dad are here anyhow, why don't we become ahead and do the penalization phase today instead of having to amendment them back at toll to the state."iv Anthony Peek was sentenced to death and the sentence was upheld past the Florida Supreme Court in 1986 reviewing his claim of racial bias.
- A prosecutor in Alabama gave as his reason for striking several potential jurors the fact that they were affiliated with Alabama Country University — a predominantly black establishment. This pretext was considered race neutral past the reviewing court. 5
- During the 1997 election campaign for Philadelphia'due south Commune Attorney, it was revealed that one of the candidates had produced, as an Assistant D.A., a training 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."6 The training tape also instructed the new recruits on how to hide the racial motivation for their jury strikes.
- In Missouri, Judge Earl Blackwell issued a signed press release well-nigh his judicial election announcing his new amalgamation with the Republican Party while presiding over a death penalty case confronting an unemployed African-American defendant. The press release stated, in part: "[T]he Democrat party places far besides much emphasis on representing minorities … people who dont' (sic) want to piece of work, and people with a pare that'south whatever color but white … ."7 The judge denied a motility to recuse himself from the trial. The defendant, Brian Kinder, was bedevilled and sentenced to death, and Missouri'due south Supreme Court affirmed in 1996.8
These examples are symbolic of a more systemic racism, and they provide a sense of how damaging racial prejudice and insensitivity can be when someone is facing execution. Empirical studies which provide the national evidence of racism in death sentence are critical to understanding that this problem goes far beyond individual examples of prejudice.
The Raw Information Up
The get-go step in determining the presence of racial discrimination in the death penalty is to wait at the raw data: from among the eligible homicides, how often are black defendants sentenced to death and how oftentimes are others sentenced to death?
The raw data of death sentences in Philadelphia between 1983 and 1993, provide the first slice of agonizing evidence that race bigotry may be operating. The charge per unit at which eligible black defendants were sentenced to expiry was nearly xl% higher than the charge per unit for other eligible defendants. A sentencing rate is simply a ratio of the number of death sentences for a particular grouping compared to the total number of cases of that group which would exist eligible for a capital punishment. In the chart beneath, a decease sentencing rate of .18 for blacks ways that for every 100 eligible black defendants, 18 will be sentenced to expiry. For other defendants, only thirteen out of 100 will be similarly sentenced.
Taking Into Account the Severity of Murders Upwardly
In order to determine whether race influences death sentencing, the researchers turned to the same techniques used in medical research to make up one's mind whether cigarette smoking causes cancer, or frequent exercise and good diet reduces middle attacks. Murder cases get decease eligible through the existence of certain aggravating factors which make one murder "worse" than another. In deciding whether the death penalty should be sought, the prosecutor is supposed to consider the presence of such factors as whether a murder was committed with grave risk to the life of others, whether the murder was committed in the course of another serious crime such equally robbery or rape, whether torture was used in the commission of the murder, or whether the defendant had a significant violent history. The jury is similarly told to consider such factors when deciding whether the sentence should exist life or expiry, once a guilty verdict is rendered.12
Through an assay of murders in which the death sentence could have been sought, information technology is possible, through an assay of the defendants that were and were not sentenced to death, to assign a predictive score, or coefficient, to various aggravating factors to measure how heavily each influences the likelihood of a capital punishment. The researchers screened hundreds of factors, statutory and non-statutory, to develop models to explain how the organisation works. All statutory factors, and those not-statutory factors which significantly correlated with the result were included.
Comparing the coefficients permits an average assessment of how much reliance was placed on the factor by the conclusion-makers. For example, the fact that the murder was committed in the course of another felony has less impact than the fact that the accused caused great impairment, fear or pain. Statistically, in this study committing some other felony had a relative predictive value of 0.8. On the other hand, if the murder was accompanied by torture, that gene was very significant and registered a predictive value of 1.9. A murder committed with grave gamble of death to others had a relatively loftier predictive value of 1.5. A cistron which had no credible issue would accept a value of 0. The study looked at a large class of such variables.
The race of the defendant is not supposed to influence whether a person is sentenced to death, but in Philadelphia it clearly does. (See Chart below.) Murders by blacks are treated every bit more than severe and "deserving" of the death penalty considering of the accused's race. Beingness a black accused merits a score of 1.4 in predicting whether a death judgement volition ultimately consequence. This actress burden for black defendants is comparable to such legitimate aggravating factors as torture or "causing great damage, fearfulness or pain," which earned scores of i.nine and 1.0 respectively, in predicting the sentence. Stated differently, in Philadelphia, the uppercase sentencing statute has operated as though being black was not merely a concrete attribute, merely as if it were i of the about of import aggravating factors actually justifying the death penalisation.
The race of the defendant is a much stronger predictor that a case will issue in a death sentence than the fact that the crime was committed along with another felony (0.8) or that the defendant killed with multiple stab wounds (0.9). Either when the prosecutor decides to seek the death penalty in a particular case, or when the jury decides that decease is the appropriate sentence, on boilerplate, black defendants are considered "worse," regardless of the other factors in their instance.
Mid-Range Cases Versus Extreme Cases Upwards
Race does not affect all cases as. Notorious serial killers like Ted Bundy or John Wayne Gacy, both white, are almost certain to receive the death sentence regardless of their race. In the nigh highly aggravated cases, the fact that the defendant is blackness is less of a cistron pushing a case toward a death sentence. The same tin be said for cases of very low severity: race is less likely to be a factor in cases where at that place is little inflammatory prove.
But in the "mid-range" of severity (or bedevilment), race plays a very significant role. When cases were ranked from 1 to eight in increasing severity, cases in categories i (least severe) and eight (well-nigh astringent) showed little or no discrimination against black defendants. Only in the center categories 3 through vii, the disproportionate treatment of black defendants, as compared to all other defendants, was quite pronounced. For instance, in cases of level 5 severity, 25% of the black defendants received the capital punishment, simply but v% of the other defendants received death, and the difference between these sentencing rates is 20 percentage points. At level half-dozen severity, the difference was 15 percentage points, and at level 4 severity, the difference in death sentencing rates was 11 percentage points higher for black defendants. These results are summarized in the graph below.
In other areas of order, such equally employment or housing, racial disparities similar to those shown in this death sentence written report take raised deep concerns and have prompted ceremonious rights legislation to protect the rights of minorities.13 Just with the death penalty, this articulate evidence of racial bias has gone uncorrected.
Black Defendants and the Race of the Victims Up
Another measure out of race's impact on the capital punishment is the combined effect of the race of the defendant and the race of the victim. In the Philadelphia study, the racial combination which was most likely to result in a decease sentence was a black defendant with a nonblack victim, regardless of how severe the murder committed. Black-on-black crimes were less likely to receive a decease sentence, followed past crimes by other defendants, regardless of the race of their victims.
Every bit noted above, in cases deemed to be to the lowest degree severe and those plant to be virtually severe, the connection between race and the likelihood of a death sentence tends to lessen. For example, few defendants of any race are probable to become the expiry 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 likely to receive the death sentence than blacks who kill blacks, and they take a death sentencing rate much larger than the rate for defendants of other races who commit similarly severe murders of black victims.
It is of import to note that these mid-range cases are precisely the ones in which prosecutors and jurors have the most discretion on seeking and imposing the death penalty. And when discretion is more than prevalent, race may more hands go the deciding factor 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 penalty 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 capital punishment, regardless of the race of the defendant.
Philadelphia Study: Conclusions Upward
Later controlling for levels of crime severity and the defendant's criminal background, the average expiry 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 accused and victim were even wider and are shown in the tabular array below.
Whichever measures the researchers employed, the statistics pointed to the same conclusion: blackness defendants on average face a distinctly higher risk of receiving a capital punishment than all other similarly situated defendants. The various contained tests were then thoroughly consistent that they pointed to race discrimination equally the underlying cause. The researchers stated: "In the face of these results, we consider it implausible that the estimated disparities are a production of risk or reflect a failure to control for of import omitted instance characteristics… . In brusque, we believe it would be extremely unlikely to observe disparities of this magnitude and consistency if there were substantial equality in the handling of defendants in this system."xiv
For those on death row from Philadelphia, these numbers translate into a harsh and deadly reality: if the death penalization were applied to blacks equally it is to others, in that location would be far fewer blacks facing execution.
National Patterns of Race Bigotry Up
When people of color are killed in the inner metropolis, when homeless people are killed, when the "nobodies" are killed, district attorneys do non seek to avenge their deaths. Black, Hispanic, or poor families who have a loved one murdered not simply don't expect the district chaser's function to pursue the death penalty—which, of class, is both costly and time consuming—but are surprised when the case is prosecuted at all. -Sis Helen Prejean, CSJxv
If the racial disparities documented in the written report of capital cases in Philadelphia were unique, they might be dismissed as but a local problem requiring a local solution. Just such racial patterns have appeared in report after report all over the country and over an all-encompassing period of fourth dimension.
In the late 1980s, Congress asked the General Bookkeeping Office (GAO) to review the empirical studies on race and the decease penalty which had been conducted upwardly 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 every bit California, Florida, Georgia, Illinois, Kentucky, Louisiana, Mississippi, New Jersey, and Texas. Their decision in 1990, based on the vast amount of information collected, was unequivocal:
In 82% of the studies, race of victim was found to influence the likelihood of existence charged with capital letter murder or receiving a death sentence, i.e., those who murdered whites were found to be more probable to exist sentenced to decease than those who murdered blacks. This finding was remarkably consistent across information sets, states, information collection methods, and analytic techniques. The finding held for high, medium, and low quality studies.16
1 of the most sophisticated of the studies reviewed by the GAO was the report of race and the death penalty in Georgia. This written report looked at 2400 cases processed in Georgia over a 7 year period. It showed that, fifty-fifty when controlling for the many variables which might brand one case worse than another, defendants whose victims were white, faced, on average, odds of receiving a death judgement that were 4.3 times higher than similarly situated defendants whose victims were black.17 The study controlled for hundreds of variables such as the level of violence in the crime and the prior criminal record of the defendant.
The significance of this racial disparity is highlighted by comparing it to a smoker's increased odds of dying from coronary avenue illness. A pivotal study constitute their odds of dying were approximately 1.seven times higher than for non-smokers of similar ages,xviii a factor smaller than that linking race and the capital punishment. Such statistical bear witness about the dangers of smoking led the Surgeon General to conclude that "cigarette smoking is a cause of coronary heart disease,"19 which, in turn, helped trigger legislation and significant reform. Yet the correlation between race and the death sentence is much stronger and has been met with virtual silence.
The report of racial disparities in Georgia was the basis for the most important example brought earlier the U.S. Supreme Courtroom on the issue of race and the capital punishment, McCleskey five. Kemp (1987).twenty The research was conducted by David Baldus, Professor of Law at the University of Iowa Higher of Law, and George Woodworth, Professor of Statistics also at the University of Iowa, both of whom participated in the Philadelphia report discussed above. 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 Law and Society Clan.
In a recent report prepared for the American Bar Clan, Professors Baldus and Woodworth accept expanded on the GAO'south review of studies on race bigotry in majuscule cases.21 They plant that there are some relevant data in three-quarters of the states with prisoners on death row. In 93% of those states, there is evidence of race-of-victim disparities, i.east., the white race of the person murdered correlated with whether a death penalty will be given in a particular case. In nearly one-half of those states, the race of the defendant also served equally a predictor of who received a capital punishment. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are particularly notable because of their reliance on well-controlled studies.
These disparities reveal a agonizing and consistent trend indicating race-of-victim discrimination. For example, in Florida, a defendant'south 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.three, in North Carolina 4.4, and in Mississippi it is five.5.22 The table below shows how frequently race-of-victim discrimination has been detected, every bit well as u.s. where race-of-defendant disparities have been shown.
Figure 7: Statistical Data in Expiry Penalisation States Showing a Risk of Racial Bigotry 23 Up
Only studies whose results were statistically significant, or where the ratio between death sentencing (or prosecutorial charging) rates (e.g., between white victim and blackness victim cases) was ane.5 or larger and with a sample size of at least 10 cases in each grouping, 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 only suggestive.
All of the race of victim disparities except one (Delaware) were in the direction of more death sentences in white victim cases.
All of the race of defendant disparities except 2 (Florida and Tennessee) were in the direction of more than death sentences for black defendants.
A especially egregious case 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 constitute in 1995 that, every bit in other states, blacks who killed whites were more likely to receive the death punishment than whatsoever other offender-victim combination.24 In fact, looking at the makeup of Kentucky'southward death row in 1996 revealed that 100% of the inmates were there for murdering a white victim, and none were in that location for the murder of a black victim, despite the fact that there have been over 1,000 African-Americans murdered in Kentucky since the death sentence was reinstated.25This gross disparity among uppercase cases sends a bulletin that the taking of a white life is more than serious than the taking of a black life, and that Kentucky's courts hand out death sentences on that basis.
This biased utilise of the death penalty for the murder of those in the white customs, but not those in the black community, led to the introduction of legislation allowing consideration of such patterns of racial disparities. The bill, referred to equally the "Racial Justice Act," failed in the Kentucky legislature in 1996,26 just was passed in 1998. It will permit race-based challenges to prosecutorial decisions to seek a capital punishment.
No Relief in the Courts Upward
Despite these pervasive patterns implying racial discrimination, courts have been closed to challenges raising this issue. In McCleskey v. Kemp, the U.Due south. Supreme Court held that the defendant had to show that he was personally discriminated against in the course of the prosecution. "Just" showing a agonizing pattern of racial disparities in Georgia over a long period of time was not sufficient to testify bias in his case.27
The federal courts have taken their cue from McCleskey and have not granted relief based on a racial application of the death penalty in whatsoever instance.28 When such claims of racial bias are raised in civil rights suits alleging employment or housing discrimination, civil rights legislation instructs the courts to employ a more than utilitarian burden of proof and provides a chance for relief.29 In criminal cases, yet, the courts require the defense to "go inside" the heed of the prosecutor or jury and show purposeful race bigotry directed at the defendant, an near impossible job.
Report Ii: The Race of the Decision-Makers Up
The death sentence is essentially an arbitrary punishment. In that location are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a estimate should give it. This lack of objective, measurable standards ensures that the application of the death sentence will be discriminatory against racial, gender, and indigenous groups. -Rev. Jesse Jackson (1996)30
As the analysis higher up 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 found at all stages of the criminal justice process" and that "[t]he evidence for the race of victim influence was stronger for the earlier stages of the judicial procedure (eastward.k., prosecutorial conclusion to charge the defendant with a majuscule offense, decision to go along to trial rather than plea bargain) than in after stages."31
The death sentence could exist sought in far more cases than it actually is, and prosecutors apply a variety of factors to decide which cases are deserving of the country's worst punishment. 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 black. Except for farthermost cases, every bit when a black police officer is killed, the murder of people of color is not treated as seriously equally the murder of white people.
I of the probable reasons for this discrepancy is that almost all the prosecutors making the key decision about whether expiry will be sought are white. According to a new written report soon to exist published in the Cornell Law Review, merely 1 percent of the Commune Attorneys in capital punishment states are black. This staggering imbalance in the racial makeup of the life and death determination-makers may partially explain the persistent racial imbalance in the use of the death penalty.
Professor Jeffrey Pokorak of St. Mary'southward University School of Police collected information regarding the race and gender of the government officials empowered to prosecute criminal offenses, and in detail, capital offenses from all 38 states that use the death penalty. The report was concluded in February, 1998.
It revealed that just ane% of the District Attorneys in death punishment states in this country are black and only 1% are Hispanic. The remaining 97.v% are white, and almost all of them are male. The chart beneath Fig. ix) summarizes the racial findings of Professor Pokorak's written report.
The implications of this written report get far beyond the shocking numbers and racial isolation of those in this key police enforcement position. When a prosecutor is faced with a crime in his community, he frequently consults with the family of the victim equally to whether the death penalization should be sought. If the victim'south family unit is prominent, white, and probable to back up him in his next election, in that location may be a greater willingness to expend the extensive financial resources and time which a decease penalty prosecution volition take. Justice Harry A. Blackmun
The style that racial bias can play out in practice is illustrated by 1 of the key death penalty jurisdictions in the country: Georgia's Chattahoochee Judicial District, which has sent more than people to decease row than whatever other district in the state. In a recent constabulary review article, Stephen Brilliant, of the Southern Center for Human Rights in Atlanta, described the prosecutor'southward 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 oft met with the victim's family and discussed whether to seek the death penalty. In a case involving the murder of the daughter 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 penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for gauge in the next ballot. The contribution was the largest received by the District Chaser. There were other cases in which the Commune Chaser issued press releases announcing that he was seeking the capital punishment after meeting with the family unit of a white victim. But prosecutors failed to run across with African-Americans whose family unit members had been murdered to determine what sentence they wanted. Most were non fifty-fifty notified that the case had been resolved. As a consequence of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial Commune, 85% of the capital cases were white victim cases.33
Racial Bias Permeates the System Up
Even under the almost sophisticated expiry penalty statutes, race continues to play a major role in determining who shall live and who shall die. -Justice Harry Blackmun, 1994 34
Prosecutors not just decide who should exist charged with a particular level of law-breaking, they likewise accept a significant impact on the way the trial is conducted. When a prosecutor refers to an Hispanic defendant as "a chili-eating bounder,"35 as happened in a Colorado death penalty instance, it sets a tone of acceptance of racial prejudice for the entire trial. Similarly, the selection of juries is an essential office of this process, and some prosecutors have made a practice of eliminating blacks from their prospective juries, thereby increasing the likelihood of a race-based decision.
Jack McMahon, for instance, was an Assistant Commune Chaser for many years in Philadelphia. During his recent campaign for the District Attorney's position, it was revealed that he carefully instructed new prosecutors in his part on the importance of keeping many blacks off high 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 depression-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 go in there and any one of you think you lot're going to be some noble civil libertarian and endeavour to get jurors [who say they'll be fair], that'south ridiculous. Yous'll lose and you'll be out of the part; … ."37
His tape urged his fellow prosecutors to pick juries that they knew would be unfair: "[T]he only way yous're going to practice your best is to get jurors that are every bit unfair and more likely to convict than anybody else in that room."38
Mr. McMahon, himself, prosecuted 36 murder cases and some of those defendants are soon on death row in Pennsylvania. In selecting juries, McMahon practiced what he preached. In a review of 16 first-degree murder cases prosecuted by McMahon, black jurors were struck four times as frequently as other jurors, and black women jurors were struck six times every bit ofttimes as non-African-American males.39
Only McMahon was certainly not alone in this practice of racial discrimination in jury option. Statistics from the race report in Philadelphia discussed above showed that from 1983 to 1993 prosecutors struck 52% of all blackness potential jurors, but but 23% of other potential jurors.
These aforementioned practices are common in other jurisdictions. According to a recent federal courtroom decision in Alabama reviewing a death sentence example, the Tuscaloosa District Attorney's Office had a "standard operating procedure … to employ the peremptory challenges to strike as many blacks as possible from the venires in cases involving serious crimes." 40
In the Chattahoochee Judicial District of Georgia, described to a higher place, prosecutors used 83% of their peremptory jury strikes against African-Americans. Vi black defendants were tried by all-white juries.41
In the Ocmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases between 1974 and 1994. Twenty-iv were against black defendants. In cases in which the defendant was blackness 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 striking 26 African-American jurors, resulting in three all-white juries in the death penalization prosecution of Albert Jefferson, a black defendant whose victim was white. An Alabama courtroom found that no racial bigotry had occurred.43
The U.S. Supreme Courtroom in Batson five. 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 black jurors. In Philadelphia, Assistant D.A. Jack McMahon prepared his new prosecutors for just such manipulation in his training tape mentioned above:
- In the future, we're going to accept to exist aware of [Batson], and the best mode to avoid any issues with it is to protect yourself. And my communication would be in that situation is when you practice accept a black jury, you question them at length. An on this little canvass that yous have, mark something downwards that you can articulate afterward if something happens … .
So if—let's say you strike iii blacks to showtime with, the outset iii people. And so it's similar the defense chaser makes an objection saying that y'all're striking blacks. Well, you're not going to exist able to get dorsum and say, oh— and brand up something virtually why yous did information technology. Write information technology down right then and there… . And question them [the black jurors], say, "Well, he had a —had a" — "Well the woman had a kid virtually the same age as the defendant and I thought she'd be sympathetic to him" or "She's unemployed and I but don't like unemployed people" … .
So sometimes nether that line yous may desire to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, non for race.45
In some other jurisdiction, prosecutors followed McMahon's strategy precisely. Their spurious reasons for excluding blackness jurors were exposed by the Florida Supreme Court in reviewing the death penalisation conviction of Robert Roundtree. At trial, the judge simply accepted the state's explanations at face value as the prosecutor eliminated x blackness jurors from the jury pool. The first two black jurors were dismissed because they were "inappropriately dressed" and one had on "pointy New York shoes." At the same time, a similarly dressed white juror was accustomed. Another black juror was rejected because she was xxx years old and unemployed, only a white unemployed female was accepted. Three blacks were excused, in part, because they were single, simply v white single jurors were accustomed. And the reason given for striking another blackness adult female was that the state preferred a predominantly male jury, although the state had accustomed 13 white females, vi of whom sat on the final jury. The reviewing court found that "the proffered reasons were a pretext for racial discrimination" and reversed the confidence.46
Prosecutors are not lone in interim out of racial prejudice. Judges, defence force attorneys and jurors tin can also brandish harmful racial bias. It is the defendant, withal, who suffers the consequences. In the death penalty trial of Ramon Mata in Texas, the prosecutor and the defense chaser agreed to excuse all prospective minority race jurors, thereby ensuring an all white jury. The U.Southward. Court of Appeals for the Fifth Circuit establish this to be harmless error.47
In the Georgia trial of Wilburn Dobbs, a black human charged with the murder of a white man, both the gauge and his attorney referred to Dobbs as a "colored male child." The defense chaser expressed his opinion that "blacks are uneducated and would not make skilful teachers, but do make good basketball game players," and referred to the black community in Chattanooga as "black boy 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 note found by a juror depicting a stick figure on a gallows with the inscription: "Hang the Nigger's (sic)." Even afterwards seeing this evidence of racial prejudice within the all-white jury, the trial gauge never sought to make up one's mind who wrote the note or how many jurors saw information technology.49
William Henry Hance, a mentally impaired black man was sentenced to death in Georgia despite the fact that i of the jurors said she did non vote for death. The only blackness person on the jury stated that she had voted for a life sentence because of Hance'due south mental condition, but her vote was ignored. In the court, she was intimidated confronting speaking out, but she subsequently revealed her vote and the stiff racial overtones in the jury room. Some other juror signed an affidavit confirming the blackness juror's story, only Mr. Hance was executed anyhow in 1994.50
Public Reaction Up
By reserving the penalty 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 East. Lowery, onetime President, Southern Christian Leadership Conference, 1989 51
After the Ceremonious War and the emancipation of the slaves, lynchings of black people were common in the U. S. From the belatedly 1800s, at to the lowest degree 4,743 people were killed past lynch mobs, with 90% of the lynchings occurring in the South, and most of the victims being blackness people.52 Lynchings were praised equally necessary and just, and even some governors deferred to the public demand for vengeance. Georgia populist Tom Watson observed that "Lynch police force is a good sign; it shows that a sense of justice all the same 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 Simply the disparities evident in today'southward death penalisation indicate that prejudice and racism remain a potent force infecting our system of justice.
These racial disparities in capital punishment have drawn increasingly critical reaction from legal and civil rights groups both nationally and internationally. Subsequently the Supreme Court narrowly rejected a challenge to the racially biased awarding of the death penalty in Georgia,55 civil rights groups and many newspaper editorials called 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.S. House of Representatives in 1994 and 1990, information technology was ultimately defeated on the theory that such a racial inquiry would "abolish" the death penalty. Only Kentucky has passed similar legislation on the land level.
Equally a result of this and other inequities in the administration of death penalty, the ABA, which had before recommended the passage of the Racial Justice Deed,56 has called for a complete moratorium on executions until such problems tin be adequately addressed. Other bar associations such equally 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 take also endorsed motions to stop executions, at least until a greater sense of justice can be restored to the process.57
Evidence of racial bigotry in the U.S. expiry penalty system has attracted worldwide attending. In 1996, the International Commission of Jurists, whose members include respected judges from around the earth, visited the United states and researched the use of the death penalty. Their report was sharply disquisitional of the mode the death penalization is being applied, specially in regards to race: "The Mission is of the opinion that … the administration of capital penalization in the United States continues to be discriminatory and unjust — and hence 'arbitrary' —, and thus not in consonance with Manufactures 6 and 14 of the Political Covenant and Article 2(c) of the Race Convention."58
In a March, 1998 determination,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.North. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions filed a report with the U.Northward. Commission on Human Rights subsequently his visit to the U.Southward. stating that "race, ethnic origin and economic status appear to be primal determinants of who will, and will not, receive a judgement of death."60
In Philadelphia, the Secretary General of Amnesty International criticized Pennsylvania's death sentence as "1 of the most racist and unfair in the U.Southward."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 office responded past pointing out that the only ii persons executed in Pennsylvania in recent times were both white. Still, these men were the exception, having been executed earlier others only because they waived their appeals. The overwhelming majority of those on the state'due south death row are black, and 84% of those on expiry row from Philadelphia are black.62
Religious opposition to the death penalty has also cited the racial unfairness in its application. Recently, all the Cosmic 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 factor in deciding whether to prosecute capital cases."63 Similar concerns have been voiced by the National Briefing of Catholic Bishops and the leaders of other denominations.
The public in this country is very enlightened of the role race plays in the capital punishment. A recent poll by Newsweek Magazine revealed that about half of all Americans believe that a black person is more likely to receive the death penalization than a white person for the same offense.65 When such public reaction will result in a claiming to this injustice is non clear. Until then, it remains a serious source of division amidst the races and an embarrassment to the U.S.'due south pursuit of international homo rights.
Decision Upwards
Those whom we would blackball from social club or from the human customs itself often speak in too faint a vocalization to be heard above lodge's demand for punishment. Information technology is the particular function of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not lone 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 death penalty, yet, such corrective measures accept been blocked past those who claim that capital punishment would bog downwardly 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 office in the question of who lives and dies by execution in this land. Race influences which cases are chosen for capital letter prosecution and which prosecutors are allowed to brand those decisions. Too, race affects the makeup of the juries which determine the sentence. Racial effects have been shown not just in isolated instances, but in almost every state for which disparities accept been estimated and over an all-encompassing period of fourth dimension.
Those who die considering of this racism are not the kind of people who usually evoke the public's sympathy. Many have committed horrendous crimes. But crimes no less horrendous are committed by white offenders or against black victims, and yet the killers in those cases are generally spared expiry. The death sentence today is a organisation which vents order's anger over the problem of crime on a select few. The existing data clearly suggest that many of the decease sentences are a production of racial discrimination. There is no way to maintain our avowed adherence to equal justice under the law, while ignoring such racial injustice in the state'due south taking of life.
Appendix Up
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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