 Welcome |
Racial Discrimination in Implementing the Death Penalty
By Ronald J. Tabak
There is a long history of racial discrimination in the use of the death penalty in this country. Indeed, racial discrimination based on both the race of the defendant and the race of the victim was a principal reason why Justice Thurgood Marshall joined the Supreme Court majority that held in 1972 that the death penalty was unconstitutional. (Furman v. Georgia, 408 U.S. 238, 364-65 (1972) (Marshall, J., concurring).)
Studies Show Continued Patterns of Racial Discrimination in Capital Punishment
Unfortunately, the modern (post-Furman) death penalty continues to be pervaded by racial discrimination based on the race of the victim and, in some places, the race of the defendant. This has been shown in numerous studies that the independent U.S. General Accounting Office (GAO) validated in 1990. (U.S. Gen. Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990).) The GAO found that in over 80 percent of the studies (23 of 28), the race of the victim correlated with getting the death penalty, i.e., that for otherwise similar homicides committed under otherwise similar circumstances and where defendants had similar criminal histories, a defendant was several times more likely to receive the death penalty if his victim were white than if his victim were African American. In the most validly conducted studies, the defendant was four or five times as likely to get the death penalty if the victim was white than if the victim was African American.
These results were remarkably consistent across data sets, time periods, states, and analytic techniques. The studies showed that race had its greatest impact in prosecutors’ decisions whether to seek the death penalty. Moreover, subsequent to the GAO analyses, it was revealed that the district attorney’s office in Philadelphia, Pennsylvania, used a training video to teach prosecutors how to improperly keep African Americans off of juries. (DATV Productions, Jury Selection with Jack McMahon, transcript at 45-46 (1987).) Then, in 1998, the Cornell Law Review published a study revealing a pernicious pattern of racial discrimination in Philadelphia capital punishment cases based on the race of the defendant and on the race of the victim. (David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998).)
The studies that the GAO found reliable have nevertheless been attacked by such groups as the Washington Legal Foundation for supposedly having failed to consider significant factors, such as the defendant’s criminal history and the heinousness of the crime. However, these attacks are unfounded. For example, contrary to the attackers’ assertions, the higher quality studies did consider these and other significant factors. In these studies, cases were not deemed similar if the nature of the crime or the background of the defendant were materially different. (See Conference, Death Penalty in the Twenty-First Century, 45 Am. U. L. Rev. 238, 322-23 (1995).)
Those who deny the existence of racial discrimination in capital sentencing frequently cite a study conducted by Stephen Klein funded by the Rand Corporation. Yet, as the GAO experts discovered, the Klein study’s conclusion of nondiscrimination is inconsistent with that same study’s tabular presentation and data, which showed that race was significant and that there was a racially discriminatory effect in capital sentencing! (Id. at 341.)
Another study often cited in efforts to deny racial discrimination in capital sentencing is the Katz study, submitted by the State of Georgia in McCleskey v. Kemp, 481 U.S. 279 (1987), which held that the imposition of the death penalty was constitutional despite evidence of a pattern of discrimination. The GAO concluded that the Katz study was far inferior to a study principally prepared by Professor David Baldus on behalf of Mr. McCleskey, which showed a pattern of racial discrimination in Georgia’s capital sentencing based on the race of the victim. (Id. at 341.) (Professor Baldus is also the principal author of the 1998 study, mentioned above, showing racial discrimination in capital sentencing in Philadelphia, Pennsylvania.)
Racial Discrimination in Capital Sentencing Persists: The Reasons
Pervasive patterns of racial discrimination in capital sentencing still persist. The reasons for this are manifold.
Prosecutorial discretion
The first factor is prosecutorial discretion, which is particularly great where, as in California and New York, the death penalty can be sought for any intentional murder committed during the course of a felony, and the "intent" to commit murder can be formed instantaneously before the killing—without premeditation. There are so many such murders that prosecutors have enormous discretion in determining when to seek death.
The following data from California illustrate this discretion. Each year in California, there are 3,000-4,000 willful homicides, about 20 percent of which also involve felonies. Thus, prosecutors have 600-800 such cases to choose from yearly. Each year, about two-thirds of those added to California’s death row (or about twenty-five death sentences) are for willful homicides committed in the course of felonies. Thus, prosecutors (and then juries) have great discretion in coming up with twenty-five death sentences out of the 600-800 willful murders involving felonies.
Most of these murders are in what Professor Baldus terms the "middle range"—not the most heinous but not the least heinous. The Baldus studies and others show the great disparities based on the race of the victim in middle range cases. The middle range problem could be eliminated by adopting pro-death penalty Ninth Circuit Judge Alex Kozinski’s idea of narrowing death eligibility to include only the most heinous murders. (Stuart Taylor, Jr., For the Record, Am. Law., Oct. 1995, at 69, 71 (interview of Judge Alex Kozinski).)
Ineffective assistance of counsel and procedural bars
Other key reasons for the persistence of racial discrimination in capital sentencing are the ineffectual representation too often provided for capital defendants, and the preclusion of meritorious racial discrimination claims because of counsel’s negligent failure to raise them at the required times. Moreover, the Supreme Court’s standard for proving ineffective assistance of counsel is structured in such a way that it is extremely difficult to show that a lawyer is ineffectual (see Strickland v. Washington, 466 U.S. 668 (1984)).
The trial of Georgia death row inmate Johnny Lee Gates illustrates the problems that can arise from ineffectual counsel. Gates, an African American from a community that is about 30 percent African American, was accused of killing and raping a white woman. His jury was all white. His trial lawyer failed to object to the jury selection process, which the Eleventh Circuit later concluded presented a prima facie case of unconstitutional racial discrimination. When this discrimination was eventually challenged in federal court, the claim was barred by trial counsel’s failure to object. Moreover, despite a wealth of readily available mitigation evidence, the trial lawyer presented no evidence about the defendant’s egregiously impoverished childhood, or his inability to function in a manner typical of a normal child. This lawyer was not found ineffective. (See Conference, supra, 45 Am. L. Rev. at 326-27; Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.), cert. denied, 493 U.S. 945 (1989).) (The author of this article, represented Mr. Gates in his Eleventh Circuit appeal.)
Another egregious example from Georgia concerns the case of Wiley Dobbs. Mr. Dobbs’s lawyer also failed to present mitigation evidence even though the evidence existed. Perhaps worse, counsel, during the trial, referred to his own client as a "colored boy," argued irrelevantly to the jury that the death penalty was unconstitutional under Furman, and then made several racist comments in postconviction testimony. For example, he stated that if he placed a phone call and a black person answered, he would hang up because he wouldn’t be able to get useful information; that if you hire a black person, things will be stolen from you; and that blacks are less educated and less intelligent than whites, either because of their nature or because "my granddaddy had slaves." Yet, he was held not to be ineffective. (See Panel Discussion, The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases, 31 Houston L. Rev. 1105, 1128 (1994); Dobbs v. Zant, 963 F.2d 1403, 1407 (11th Cir. 1992).)
Venue and jury selection
The manner and location in which juries are selected also lead to racial disparities in capital sentencing. For instance, unlike in the O.J. Simpson case, in which the jury was selected primarily from the central city, prosecutors in Los Angeles County frequently choose venues for African American capital defendants that result in all-white juries. (Id. at 584.)
Problems also arise when jurors are not individually questioned outside the presence of other prospective jurors during voir dire. Prospective jurors who give "politically correct" responses in group settings often reveal their true racism after sequestered individualized questioning.
In any event, jury selection is always distorted by Witherspoon questioning. (Witherspoon v. Illinois, 391 U.S. 510 (1968).) Under Witherspoon, potential jurors who during voir dire questioning state that they would never be willing to impose the death penalty, and those who, after a capital conviction, would always vote for the death penalty, can be automatically excluded. This questioning, conducted before the guilt/innocence phase of the trial, disproportionately leads to exclusion of African Americans, because a higher percentage of African Americans oppose the death penalty compared to the general public. Also, relatively few jurors are, in reality, excluded for being automatically pro-death penalty. Consequently, a lower proportion of African Americans participate in even the guilt/innocence phase of many capital cases.
In addition to these automatic exclusions for "cause," prosecutors often discriminate against African Americans when exercising their discretionary challenges. When pressed to explain such challenges, prosecutors often give pretext reasons such as "the juror reminds me of the [African American] defendant" or "the juror looks a bit slow to me." These reasons often do not withstand serious scrutiny, yet judges usually uphold them.
In the trial of Albert Jefferson in Alabama, for instance, the prosecutor exercised his discretionary challenges against twenty-four of the twenty-six African Americans among the prospective jurors, resulting in an all-white jury. Long after the trial, counsel for Jefferson discovered the district attorney’s juror ranking system: (a) Strong, (b) Medium, (c) Weak, and the least desirable category, (d) Black. Even in the wake of this discovery, the Alabama court did not grant Mr. Jefferson relief based on this blatant racial discrimination (although he did get relief on another issue). (See Bryan A. Stevenson & Ruth E. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. & Lee L. Rev. 509, 520, 527 n.45 (1994).)
Racism by jurors
The capital defendant’s fate is sometimes distorted by racial discrimination by jurors, even when at least one African American does serve on the jury. In William Hance’s case, the sole African American juror voted against death—a vote that, unbeknownst to her, would have meant a life verdict under Georgia law. However, the foreperson inaccurately stated to the court that the jury had unanimously voted for death, and the African American juror was too afraid to contradict this in public. She came forward belatedly when an execution date was set. But this was deemed to have been raised too late, even though other jurors verified her account, and there was uncontradicted evidence that some jurors had made racist remarks during deliberations. Accordingly, Mr. Hance was executed. (See Panel Discussion, The Death of Fairness?, supra, 31 Houston L. Rev. at 1190.)
Safeguards
There are two potential final safeguards against racial discrimination in capital punishment: proportionality review and clemency proceedings. Unfortunately, neither has been very effective in practice.
Proportionality review
Proportionality review is a means by which an appellate court can compare otherwise similar cases to evaluate whether a death sentence is disproportionate to sentences in other, similar cases. This could lead to relief being granted where, under otherwise similar circumstances, a defendant would have been unlikely to have gotten the death penalty if he had been white or if his victim had been African American.
The Supreme Court, in upholding the post-Furman Georgia death penalty statute in 1976, stressed the importance of proportionality review. (See Gregg v. Georgia, 428 U.S. 153, 204 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.). However, only a few years later, the Court held that such review is not constitutionally required. (Pulley v. Harris, 465 U.S. 37 (1984).) Thereafter, five states—Arizona, Maryland, Idaho, Connecticut, and Wyoming—totally abandoned any pretense of performing proportionality review. Other states significantly curtailed it, and many never even purported to engage in it.
Clemency
The other possible fail-safe against racial discrimination in capital punishment is executive clemency. However, these days clemency is granted far less frequently than in the pre-Furman era, due to elected officials’ fear of being attacked as "soft on crime." And when it is granted, it is usually due to compelling evidence of innocence (or to a very unusual circumstance, such as the Pope’s recent visit to Missouri), and not to any concern about racial discrimination.
An example of the many cases in which African Americans have been denied clemency under circumstances that literally cried out for such relief was the case of Dalton Prejean, who was executed in Louisiana in 1990. Prejean was an African American, convicted of killing a white state trooper. He was only seventeen years old at the time of the crime and was mentally retarded. He faced an all-white jury. In denying clemency, Governor Roemer stated, "I do not, as a representative of the people, have a choice." That was untrue. The pardon and parole board had recommended that he grant clemency, but Governor Roemer chose not to do so.
Redress for Racial Discrimination in Capital Sentencing
In 1987, the U.S. Supreme Court considered Professor Baldus’s Georgia study, assumed that it showed a pattern of racial discrimination in capital punishment based on the victim’s race, and held in a 5-4 decision, that this was constitutional. (McCleskey v. Kemp, 481 U.S. 279 (1987).) Interestingly, the author of the bare majority decision, Justice Powell, later told his biographer that McCleskey was the biggest mistake in his career and that if he had to do it over again, he would rule the death penalty always unconstitutional. (John C. Jeffries, Jr., Justice Lewis F. Powell, Jr.: A Biography, 451 (1994).)
McCleskey also held that Congress and the states could pass legislation if they chose to deal with racial discrimination in capital punishment. While the U.S. House of Representatives twice passed such legislation, it was defeated in the Senate and died in conference both times. The only state to pass such legislation is Kentucky, which passed a watered-down Racial Justice Act in 1998. (1998 Ky. Acts 252.) New York’s death penalty law, passed in 1995, requires the state’s highest court, in reviewing death sentences, to consider whether there has been a pattern of racial discrimination based on the race of the victim or the race of the defendant. However, this process may be foredoomed before the first case reaches the court, because the data being assembled do not include second degree murder cases that could have been first degree murder cases subject to the death penalty. Furthermore, New York Governor Patacki has proposed to eliminate from proportionality review consideration of any case in which the death penalty is not imposed. This would make it virtually impossible to analyze and determine a pattern of racial discrimination in death penalty sentencing because only cases where the death penalty is imposed would be compared. Meanwhile, no state court has granted relief on the basis of a systemic showing of racial discrimination in capital sentencing.
A 1995 Georgia case shows how judges, as well as legislators, can be intimidated by the political winds. That state’s supreme court initially invalidated by a 4-3 vote, a "2 Strikes and You’re Out" statute, because of its potential racially discriminatory impact. The court reversed itself, in a different 4-3 vote, thirteen days later, after Georgia’s attorney general and various district attorneys expressed concern that the initial holding could be a useful precedent for death row inmates and could threaten some Georgia death sentences. (Stephens v. State, 456 S.E.2d 560 (1995).)
Efforts to Rectify the Problem
Serious efforts to rectify racial discrimination in capital sentencing, such as the Racial Justice Act, are likely to be stymied for the foreseeable future by elected officials’ fears of doing anything that can be attacked as being soft on criminals. These same fears led Congress to pass the Antiterrorism and Effective Death Penalty Act of 1996, which to an extent not yet fully known, further curtails the effectiveness of the writ of habeas corpus as a means for providing relief to inmates convicted or sentenced in violation of the Constitution. Concern about the public’s perceptions also led Congress in 1996 to completely defund the capital punishment resource centers, which had endeavored to provide or find representation for indigent death row inmates.
The passage of the habeas-curtailment act and the defunding of the resource centers were the proverbial "straws that broke the camel’s back" that in 1997 led the American Bar Association to call for a moratorium on all executions in this country, until various ABA policies, including those designed to minimize racial discrimination in capital sentencing, are completely implemented. (See Randall Coyne and Lyn Entzeroth, Report Regarding Implementation of the American Bar Association’s Recommendations and Resolutions Concerning the Death Penalty and Calling for a Moratorium
on Executions, IV Georgetown J. on Fighting Poverty 3, 49 (1996).)Conclusion
With the curtailment of writs of habeas corpus and the defunding of resource centers, it is much less likely that instances of racial discrimination in the imposition of the death penalty will ever be uncovered or rectified. Instead, fewer resources, speeded-up schedules, substantial curtailment of federal evidentiary hearings, and greater deference to erroneous state court denials of federal constitutional claims make it inevitable that more victims of racial discrimination in the imposition of the death penalty will be executed.
Support Article:
Ronald J. Tabak is Special Counsel to Skadden Arps Slate Meagher & Flom, where he coordinates the firm’s pro bono program. He is a member of the IRR Council and chair of the Section’s Death Penalty Committee.
