Term Paper on "Death Penalty in U.S. How Does Race Impact Its Application"

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Death Penalty & Race in America

Death Penalty: How Does Race Impact its Application?

The death penalty and the race / ethnicity of those who are actually put to death - and those on death row today - have a long and unfortunate history of linkage, and the issues spawned therein have generated countless debates, research studies, and court decisions. The built-in anti-African-American bias that has existed in the capital punishment milieu for years has many facets and many unfortunate realities. What's more, the U.S. criminal justice system that is institutionally prejudiced against people of color is flawed to the point that, on a regular basis, men on death row are being dismissed from incarceration because, upon deeper investigation, they were innocent to begin with. The subject of this paper is how race impacts capital punishment, and how - and why - capital punishment is powered by a system of justice that, in the view of many, is heavily stacked against people of color.

INTRODUCTION:

On December 30, 1970, Arkansas governor Winthrop Rockefeller commuted the death sentences of 15 men who were on death row, awaiting their executions; the governor ordered that the 15 be sentenced to life imprisonment.

Ostensibly, Rockefeller was acting on his personal moral convictions against taking the life of another person; "What earthly mortal has the omnipotence to say who among us shall live and who shall die?" (The New York Times, 1970) he asked. "I do not," he continued, adding that he could not "turn my back on life-long Christian teachings and beliefs... [and] let history run out its course on a fallible and failing theory of punitive justice."

But did the fact that 11 of the 15 men on death row in Arkansas were African-American have anything to do with his decision? "I'm not going to philosophize on that," he answered. "It's fact."

What also is fact is that from the years 1930 to 1967, blacks "never made up more than 11.1% of the population" in the U.S., and never more than 24% in the South (Wicker, 1975). But though blacks were only 11.1% of the U.S. population, 48.8% of the men executed in that time frame were black, "and 67.5% of those put to death in the South were black."

Tom Wicker, writing in The New York Times in May, 1975, went on to point out that "even reprieve is discriminatory; in Pennsylvania, from 1914 to 1958, three times more white than black murderers had death sentences commuted."

Fast-forward to 2006: the U.S. Department of Justice (DOJ) Bureau of Justice Statistics ("Capital Punishment Statistics") reports that in 2005, sixty individuals were executed in sixteen different states, including "...19 in Texas; 5 each in Indiana, Missouri, and North Carolina; 4 each in Ohio, Alabama and Oklahoma; 3 each in Georgia, and south Carolina; 2 in California; and 1 each in Connecticut, Arkansas, Delaware, Florida, Maryland, and Mississippi" (www.ojp.usdog.gov/bjs/cp.htm).

Of the 60 persons executed in 2005, according to DOJ, 41 were white and 19 were black. And of those on death row in 2004, already sentenced to die and awaiting their executions, 1,850 were white, and 1,390 were black, according to the DOJ data. To give an indication of the rise in numbers of prisoners condemned to death over the past 38 years, the number of blacks on death row in 1968 was 271, and the number of whites on death row in 1968 was 243, the DOJ reports.

In 2003, the DOJ reports, there were 38 states with capital punishment laws and 65 persons were executed; of those, 41 were white, 20 black, one Native American and three Hispanics. Of those 38 states embracing the death penalty in 2003, six changed their statutes "to exclude the mentally retarded from capital sentencing or execution," according to the DOJ.

Meanwhile, the American Civil Liberties Union (www.aclu.org,2003) statistics show that in 2003, death row in U.S. military prisons was comprised of 86% minorities; 80% of death row inmates in Colorado were minority; 72% sentences to death in Louisiana and 70% in Pennsylvania were minorities. The ACLU also reports (www.aclu.org,2005) that since 1976, Texas has executed by far the most individuals, 338; Virginia is next with 94, followed by Florida with 59 executions.

LITERATURE REVIEW:

In "Death By Discretion: Who Decides Who Lives and Dies in the United States of America" (American Journal of Criminal Law), the author asserts that "approximately thirty-four percent of people executed in the United States since 1976 have been black" (Adams, 2005). Thirty-four percent doesn't sound too unbalanced until one is confronted with the fact that African-Americans make up about 12% of the U.S. population. Adams goes on to point out that "seventy-nine percent of victims for whom alleged defendants have been executed have been white, despite [Caucasians] comprising only fifty percent of all those murdered."

And, Adams continues, of the 221 people "executed for interracial murders, 189 - ninety-four percent - have been black." Is there a pattern of blatant racial bias reflected in these data? Adams insists that "racism...pervades America's criminal justice system," and she wonders, "How is it that racism, as one of the most deplorable features of contemporary society, is able to establish a position in the purported beacon of objectivity and neutrality that is the law?" In her research article, Adams argues that since the death penalty was "reinvented" (Furman v. Georgia in 1972), the "arbitrariness and caprice" of the "pre-Furman" era is back.

And, moreover, Adams insists that the "discretionary use of the death penalty" by prosecutors at the state and federal level plays the "single greatest role in introducing discriminatory societal subjectivity into the ostensibly objective decision to impose a death sentence." Taking that assertion further, Adams writes that it can be "unequivocally be stated" that the death penalty is "more likely to be sought and imposed for an offender if the victim was white."

Adams draws that conclusion based on a 1998 research study by David Baldus & George Woodworth ("Race Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent findings from Philadelphia"), in which it was revealed that "the probability of receiving a death sentence is 3.9 times greater if the defendant is black."

This finding is "dramatic," Adams observes, given that Philadelphia is well outside the deep South; also known as the "notorious 'Death Belt'" of the United States, the deep South (Texas, Florida, Louisiana, Georgia, Virginia, Alabama, Mississippi, North Carolina and South Carolina) accounts for "ninety percent of all executions carried out since 1976," the article explains. But returning to the issue of prosecutors, Adams finds it "difficult to ignore" when reviewing the racial dynamics of capital punishment, that "97.5% of total prosecutors in America's death penalty states are white."

Moreover, in eighteen of the thirty-eight states that have capital punishment, "one hundred percent of those in a position to make 'quasi-judicial decisions' as to whether a person may be deserving of a death sentence are white," Adams continues.

An objective question in response to that last paragraph might be, "Well, just because prosecutors and others charged with making decisions about death sentence applicability are overwhelmingly Caucasian, why is there an assumption of bias against people of color?" Adams writes that "a white prosecutor may - consciously or subconsciously - perceive a crime to be more 'outrageously or wantonly vile, horrible, or inhuman' if it is alleged to have been committed against a white victim," and if the community's outrage and corresponding "desire for vengeance" is "palpable." The fact that district attorneys (DAs) are elected, not appointed, is entirely germane to this discussion. When the public is outraged over a crime that involves racial dynamics, the DA most often will pursue the toughest possible penalties.

Adams notes that jury selection "provides a second opportunity" for prosecutors to flex their political muscles; indeed, if potential jurors are found to be "consciously opposed to the death penalty" they may be excluded from sitting on a capital trial. Also, beyond the just-mentioned reasons for disqualifying potential jurors, the DAs (and defense attorneys) have a "preemptory strike" option - for which no reason need be given. And albeit "preemptory strikes" based "solely on the basis of race" are unconstitutional, there are ways around being caught red-handed showing bias to blacks who are potential jurors.

For example, Adams mentions the Jefferson Parish in Louisiana; in 390 jury trials, the DA used "preemptory strikes" to block blacks from juries "at more than three times the rate it does to exclude whites." And in Georgia's Chattahoochee Judicial Circuit Court, prosecutors have played the "preemptory strike" card eighty-three percent of the time to dump blacks from juries - albeit blacks make up just 34% of the population in that region of Georgia.

In an article titled "Minority Threat and Punishment: A Cross-National Analysis" (Justice Quarterly), the authors suggest that understanding "...why we carry out punitive crime control practices" is a vital first step in the building of justice systems "that are both just… READ MORE

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