by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center June 1998 It is tempting to pretend that minorities on death 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 so easily confined. -Justice William Brennan (1987)
Table of Contents
The results of two new studies which underscore the continuing injustice of racism in the application of the death penalty are being released through this report. The first study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with time, nor is it restricted to a single region of the country. 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, capital punishment has always been deeply affected by race. Unfortunately, the days of racial bias in the death penalty are not a remnant of the past.
Two 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 death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as 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 excess of other defendants for similar crimes.
A second study by Professor Jeffrey Pokorak and researchers at St. Mary's University Law School in Texas provides part of the explanation for why the application of the death penalty remains racially skewed. Their study found 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 pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death 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 close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, 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 insufficient 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 have failed to pass civil rights laws regarding the death penalty for fear of stopping capital punishment 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 being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being 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 country struggles to adhere.
It is tempting to pretend that minorities on death 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 so easily confined. -Justice William Brennan (1987) 2
The Sounds of Racism
Blatant racism is seen and heard too often in courtrooms around the country. In death penalty cases, the use of derogatory slurs kindles the flames of prejudice and allows the jury to judge harshly those they wish to scapegoat for the problem of crime. A few examples illustrate the intensity of this racism:
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