Racism in the Death Penalty

The issue of the death penalty is one of the most controversial social issues in the present world. One of the controversies surrounding this issue is whether the death penalty contains a pattern of racial bias. By examining numerous theories and facts presented from numerous studies, this article will examine the historical and present day laws and policies concerning the death penalty and show how a racist pattern has developed when utilizing the death penalty. This racial pattern that has developed can help educate the public on the inefficiencies and unfairness of this aspect of the justice system.

In September of 2000, the Justice Department published a study on racial discrimination on the prosecution of capital cases.[1] The results showed that a large majority of the defendants were minorities. Numerous reasons and theories have been presented in an attempt to explain this bias. These theories touch upon all areas of the criminal justice system.

Most studies done on defendants of capital punishment have shown a racial bias present. According to the study conducted by the U.S. Department of Justice, in July of 2000, 19 defendants were under a federal sentence of death. Out of those defendants, 79 percent were minorities.1 Other studies show that at any given time, over half of those on death row are people of color. Studies on inmates have also shown a common background. The inmates are mostly male, with little or no education, and no or lower status employment.[2] Most inmates also came from a lower-status background, often with broken families.

In order to understand how this pattern of racial bias occurred to bring these minorities to death row, one must examine the processes of the judicial system in determining the use of capital punishment. These processes include the prosecutor's decision to seek the death penalty, the defendant's right to proper legal counsel, plea bargaining, jury selections, and the method of which prosecutor's present their case.

In the first stage mentioned of the processes, studies show that race of the offender effects the prosecutor's decision to seek the death penalty. According to the 2000 study by the Department of Justice, from 1955 - 2000, 80 percent of the federal cases submitted by the U.S. Attorney's seeking the death penalty prosecution involved minority defendants. Out of that 80 percent, 72 percent were approved.1

Not only did the race of the offender play a role in the prosecutor's decision to pursue the death penalty, but also the race of the victim. When the victim is white and the defender is a minority, the death penalty is more likely to be imposed. This is especially true for African American defendants. For example, according to Randall G Sheldon in his book, Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice, "When a victim is white and the offender is African American, the death penalty will be given about 35 percent of the time, compares to only 14 percent when the relationship is reversed."(148).[3] Similarly, Roger Hood states in his book The Death Penalty: A World Wide Perspective that "It also appears that prosecutors may be prone to upgrade the white victim cases to felony-murders, especially when the defendant is black" (171).[4] Thus, prosecutors are more likely to push for the execution of the death penalty when the defendant is a minority and the victim is white.

One study in particular summarized the discrimination that is present during sentencing. In their article titled Race and Sentencing, authors Samuel Walker, Cassia Spohn, and Miriam Delone examine the causes of racial discrimination in sentencing. They conclude the bias results from two types of discrimination, direct and indirect discrimination. Indirect discrimination occurs when the offender is not guaranteed to a fair trial due to his or her background, such as their rights to proper legal counsel. Direct discrimination occurs when the judge or jury take the race of the offender into account when determining the appropriate sentence.[5]

According to the article, the two most important aspects in determining the sentence of the offender are not only the race of the offender but also of the victim. The article uses an example of that if a crime is borderline between the death penalty and life in prison, the judge will then take the offender's race into account, and also the race of the victim. The article states, "Crimes that threaten the power of the dominant class will therefore produce harsher penalties for African Americans who commit these crimes...crimes that pose little threat...to white authority...will not...result in more severe sanctions..."5 Therefore, minorities who commit crimes against other minorities will receive less harsh penalties than minorities who commit the same crimes against a white victim.

The article also takes into account the few studies in areas that show no discrimination when concerning sentencing. The authors conclude that "discrimination has not declined or disappeared but simply has become more subtle and difficult to detect....judges, in other words, continue to take race into account, either explicitly or implicitly, when determining the appropriate sentence.5

Studies have shown that a racist pattern is also present in the defendant's right to a lawyer. Because the backgrounds of most defendants on death row are from a low social status, most cannot afford to hire proper legal counsel. According to Charles L Black Jr. in his book Capital Punishment: The Inevitability of Caprice and Mistake, the fact that there is a high correlation between minorities and poverty affects the defendant's ability to obtain adequate legal guidance (85-90).[6] To make this issue more complicated, in 1995 the U.S Congress discontinued federal funding for organizations assisting death-sentenced prisoners.[7] This lack of funding and money to hire adequate legal guidance in turn increases the defendant's chance of being sentenced to capital punishment in all stages of court proceedings.

Plea-bargaining is another process in which a pattern of racial bias is present. Plea-bargaining is a negotiation in which the defendant agrees to enter a plea of guilty to a lesser charge and the prosecutor agrees to drop a more serious charge. Plea-bargaining is a stage which "...you need not just any lawyer...but a skillful lawyer."6 This, of course, requires vast amounts of money, which the defendants do not have. According to the justice department study, "A white defendant is almost twice as likely to be given a plea agreement resulting in a withdrawal of intent to seek the death penalty than any black or other defendants..."1 Out of the 159 defendants from 1995-2000 who entered into plea agreements, 48 percent of the agreements reached were for white defendants while only 25 percent of the agreements reached were for minority defendants. Prosecutors may even seek the wishes of the victim's family in plea-bargaining, whose decision may be influenced by race or class factors.

Moving on to the trial, studies have shown that racism is present throughout the proceedings of jury selection. When a jury is selected, potential jury members are interviewed and questioned "...in order to identify and reject those whose view on the death penalty are regarded as incompatible with their duty to apply the law..."4 In other words, jurors are selected according to their ability to apply the law conscientiously and consider not only the full affect of the punishment rendered but also to have knowledge of the other punishments available. However, as Hood points out, there still exits potential white male jurors, who have been thought able to apply the law consciously, yet were in sample cases were the defendant was a minority were still more likely to convict about 1.5 times more than other potential jurors of a minority backgrouond.4

It has also been found that the prosecution's use of preemptory challenges leads to minority defendants often being tried by all white jurors.7 In 1986, the US Supreme Court ruled in Batson vs. Kentucky that the removal of potential jurors on the ground of race was unconstitutional. However, this decision failed to stop these biased challenges, since it is nearly impossible to prove the discrimination. Prosecutors need only to provide a non-racial reason for dismissing the juror.[8] Thus, a pattern of racial bias in jury selection continues to exist.

Studies have also shown that a racist pattern is also present in the method that prosecutors use to present their case. When the death penalty is desired, the prosecutors must convince the jury that the offender deserves capital punishment. Many times they will encourage this thought by linking the offender to racial prejudices. For example, when African American activist Mumia Uba-Jamal was being convicted of murdering a white Philadelphia police officer, the prosecutor linked Uba-Jamal to the local chapter of the Black Panther party that existed twelve years before the trial. By doing this, the prosecutor was able to play on the minds of the jurors to create animosity towards the defendant.8

Studies have also shown that a racist pattern can also be seen in the sentences given for non-homicidal crimes. One example is the new laws in accordance to the drug war. According to Sheldon, crack became the target of this war with the implement of the Anti-Drug Abuse Acts of 1986 and 1988. This act creates mandatory sentences of five years for possession of five grams of crack cocaine, yet only probation for possession of five grams of powder cocaine. Sheldon points out "The former drug (crack cocaine) has been used mostly by poor African Americans, while the latter (powder cocaine) has been used by more affluent whites".3 Also, the Drug Kingpin Act of 1988 made the death penalty available for certain drug-related offenses.7 The utilization of the death penalty for drug offenses under this act was decided from case to case, with no guidance put in place. Therefore, any prosecutor could simply choose to ask the Attorney General for approval to seek the death penalty. From 1988 to 1994, US Attorneys sought the death penalty for drug offenses 52 times; they received approval 41 times.[9] Since the drug acts were more inclined towards the drug choice of poor African Americans, the majority of these cases involved minorities. These acts increased the chances of minorities receiving the death penalty for drug offenses instead of homicide offenses.

The racial bias pattern evident in the capital punishment is not a recent event. These consists a historical pattern of this bias that continues back to the time of slavery in the United States. For example, during the times of slavery in the U.S, if a slave was to murder or even harm his owner, he was immediately executed. However, if an owner were to murder or harm his slave, he would at most pay a fine. The crime of rape also shows a historical pattern of racial discrimination when the death penalty is utilized. According to Michael A Mello in his book Dead Wrong: A Death Row Lawyer Speaks Out (1997) out of the 455 people put to death for the crime of rape between the years 1930 and 1972, 89.5 percent were nonwhite.[10] These cases of minorities were influenced by the fact that all or most of the cases involved a white victim.

The facts of this pattern or racial bias have been brought to the attention of the Supreme Court. There are two cases in particular that effect this bias. The first, Furman vs. Georgia, was brought to the Supreme Court in 1976. In this case, the Supreme Court was presented with a petition that the death penalty was unconstitutional and racially biased, and in violation of the eighth and fourteenth amendments. The Supreme Court ruled that the death penalty was unconstitutional and invalidated most state death penalty statutes. This decision also reversed 631 death sentence decisions. However, states then simply issued new statutes that got around the Supreme Courts decision by eliminating discretion of the juries in imposing the death sentence. Some states even offered guides to juries in determining whether or not to impose the death penalty.[11] The Supreme Court then ruled in Gregg vs. Georgia that these new laws were constitutional. The Supreme Court believed that the juries had to be guided in this discretion because the jury members served as a link between the community values and the penal system.11 Therefore, because the states were allowed to reinstate the death penalty under these new statutes, pattern of discrimination continued to be present in the use of the death penalty.

The McClesky case was the second major case to affect the racial pattern in the death penalty. In 1987, lawyers representing Warren McClesky, an inmate on death row, presented to the Supreme Court a rigorous statistical analysis of Georgia's sentencing procedures. This statistical study concluded that the odds of receiving the death penalty in cases where the victim was white and the offender was a minority was eleven times higher than if the situation was reversed.8 The Supreme Court ruled that disparities in such instances are part of the criminal justice system and that "...statistical proof of bias in the sentencing process as a whole was not grounds to reverse an individual's sentence."8 As a result of this ruling, death row inmates who feel their sentence was biased due to race must prove it in order to get their sentence's reversed. Because statistical proof was not considered eligible, this feat was nearly impossible to accomplish. Several years later, one of the Justices, Justice Powell, admitted that he had not fully understood the statistical evidence and wished he had voted differently.8 The McClesky ruling has in fact been considered one of the major setbacks to the civil rights movement.7

Efforts to put a stop to the racial pattern in the death penalty include the Racial Justice Act of 1988. This act would "...allow defendants in capital cases to use statistical evidence of racial discrimination to show that race influenced the decision to seek the death penalty. Should the judge find that race was a factor, the death penalty would be barred."[12] Despite the findings of studies, which affirms the pattern of racial discrimination that is present in the death penalty, attempts to get the Racial Justice Act of 1988 have failed repeatedly.7

Some researchers have found that this pattern of racial discrimination not only affects minorities negatively, but also white offenders. These researchers say that since most justice systems do not wish to be labeled as discriminatory, they will proceed to execute a non-minority offender before a minority offender to balance out the statistics of appear to be non-discriminatory. Such is the case thought to be with the Spenkelink case.10 John Spenkelink was arrested and convicted for the murder of Joseph J. Szymankiewicz, a long time sexual abuser of Spenkelink. Along with Spenkelink's traumatic childhood (he had found the dead body of his alcoholic father) and the mental trauma suffered from the sexual abuse that he endured, Spenkelink should have been found not guilty for reasons of insanity. In fact, others even argue that due to the abuse Szymankiewicz had inflicted on him, Spenkelink's crime could have been viewed as self defense. Instead, Spenkelink received the death penalty.

Spenkelink's crime is thought to be controversial because many people believe that Spenkelink was executed in order to avoid having the label of discrimination or racism being applied to the court. Besides the sentencing itself, evidence of this lies in the fact that although other cases had been waiting for the Florida governor's signature, he signed Spenkelink's death warrant first. An anonymous Florida lawyer summarized this belief of reverse discrimination in his statement: "I'll tell you why they wanted to kill him. He was white. No one ... wants to kill a black man first. They don't want to be labeled racist."10 The lawyer's statement also continued to warn that reverse discrimination does not relieve the discrimination on minorities. "I think the next person who gets it will also be white. And then its watch out blacks."10 Clearly, reverse discrimination is yet another major yet unnoticed aspect of the racial pattern that has developed in the utilization of the death penalty.

Because patterns of discrimination are evident in all aspects of the court proceedings, it is no surprise that it is also evident in the death penalty. In order to discontinue this pattern of bias, one needs to sort out the roots and causes and address the problem from there. People need to be more aware and educated on how the Justice System operates and the social aspects that it involves.

Sources

[1] Death Penalty Information Center (2000). The Federal Death Penalty System: A Statistical Survey. Available: http://www.deathpenaltyinfo.org/fedrpt.html

[2] Harries, K.D. & Cheatwood, D. (1997) The Geography of Execution: The Capital Punishment Quagmire in America. New York: Rowman and Littlefield Publishers, Inc.

[3] Sheldon, R.G. (2001). Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice. Massachusetts: Allyn and Bacon.

[4] Hood, R. (1996). The Death Penalty: A World-Wide Perspective. Oxford: Clarendon Press.

[5] Walker, Spohn, & Delone. (2002). Race and Sentencing. The Criminal Justice System: Politics and Policies. Cole, Gertz, and Burger, 2002.

[6] Black, C.L. (1974). Capital Punishment: The Inevitability of Caprice and Mistake. New York: W.W. Norton & Company, Inc.

[7] National Coalition to Abolish the Death Penalty. (2002). Race and the Death Penalty in the United States: A Time for Change. Available: http://www.hri.ca/racism/submitted/theme/deathpen.html

[8] Amnesty International (1996). Racism in the Death Penalty. Available: http://www.amnesty.ca/usa/racism3.html

[9] Lee, Stephen. (2001). Federal Death Penalty. Available: http://www.newsaic.com/ftvww14n.html

[10] Mello, M.A. (1997). Dead Wrong: A Death Row Lawyer Speaks Out. Wisconsin: The University of Wisconsin Press.

[11] Bedau, H.A. & Pierce, C.M (1976) Capital Punishment in the United States. New York: AMS Press, Inc.

[12] Amnesty International (1996). Racial Prejudices: The Death Penalty is Racially Biased. Available: http://www.amnestyusa.org/abolish/racialprejudices.html