Racial discrimination in the administration of the death penalty
by Marie Baleo
On 21 September 2011, Troy Davis, a 42 year-old African-American man convicted for the murder of a police officer in Savannah in 1989, was executed after a long judicial process punctuated by numerous appeals. This case spurred worldwide mobilization against the death penalty and a media uproar, as Davis was widely regarded by the media and public as most likely innocent. Retraction of 7 of the 9 witnesses, contradictions in their accounts, lack of DNA evidence, and accounts of police pressure on the witnesses all pointed to a less than thorough administration of justice.
Many held the view that the death penalty had been sought against Davis not as punishment for an offender whose guilt had been asserted, but as a response to the desperate need to find someone to blame for the assassination of a law enforcement officer. In this regard, Troy Davis presented the profile of the ideal culprit, both poor and African-American.
The assassination of Trayvon Martin and the acquittal of his murderer, George Zimmerman, as well as the assassination of Michael Brown in Ferguson in 2014 have shown yet again that Black lives are still deemed less worthy than white lives in the United States. Let’s take a closer look and see how this revolting state of affairs has a striking parallel in the way Black defendants are dealt with in the judicial process and in the administration of the death penalty.
Discrimination rooted in racist history
Widespread racism in the administration of the death penalty is an empirically-verified phenomenon that has always existed alongside the death penalty in the United States, even today, at a time when racial equality is guaranteed by law.
In a report submitted to the UN, the United States admitted that: “Blacks are disproportionately more likely to be sentenced to death and executed than other racial or ethnic groups. From 1977 (…) to 1998, (…) the U.S. general population was approximately 12% Black; however, among those entering prison under a death sentence during this period, 2,347 (41%) were Black. Of the 500 persons executed during these 22 years, 178 (36%) were Black.”.
Scott Phillips was able to identify a pattern of racial discrimination in data which, analyzed at first in raw percentages, showed no evident discrimination against Black defendants. The study concluded that “the odds of seeking death are 1.75 times higher against Black defendants than white defendants” and that “the DA sought death against Black defendants and white defendants at the same rate despite the fact that Black defendants committed less serious murders. (…) The bar was set lower for seeking death against Black defendants”.
However, the most relevant parameter to prove racial discrimination in the death penalty is the race of the victim, not of the defendant. Indeed, “half the studies suggest that the death penalty is more likely to be imposed on behalf of white victims”. A major study conducted by David Baldus showed that even though the race of the defendant did not influence the chance of being sentenced to death, “the race of the victim did: the odds of a death sentence were 4.3 times higher if the victim was white”, with the winning death penalty combo being, unsurprisingly, a white victim and a Black defendant.
What President Obama referred to as “this nation’s original sin of slavery” was abolished by the 13th Amendment. However, lynchings of African-Americans continued well into the 1960s, as did segregation, which only ended in 1964. Until then, the situation of African-Americans had been plagued by the Jim Crow laws, the “separate but equal” doctrine, and lynchings of Blacks in the South.
Though recent decades have witnessed considerable social change, racism still pervades society on a wide scale. It also pervades the judicial process, no longer through racist laws, but through racist behaviors corrupting the trial process, particularly in the area of capital punishment. Capital punishment has long been a racial control method, with slavery being, according to Michael Fraser, the “antecedence for the death penalty as it is used in the modern American south”. After the Civil War, Southern whites adequately turned to the criminal justice system, namely the death penalty, for another means of oppression. Statistics show that Southern states account for 90% of the executions carried out since 1976.
However useful, this particular reading of American history fails to account for the way those historically-inherited racist attitudes and beliefs are able to influence the judicial process to such an extent, especially in Southern states. Instead, the primary explanation is to be found in the workings of the judiciary in the United States.
The main culprit: US legal mechanisms
One of the legal mechanisms allowing for racial discrimination to pervade the administration of capital punishment is the considerable degree of discretion enjoyed by the public prosecutor or district attorney (DA) in the American judicial system. One of the prime examples of this is the fact that death penalty can be sought by the DA or prosecutor for any murder qualified as “intentional”, with the possibility for intent to be formed instantaneously before the crime, without any need for premeditation. This means that prosecutors have substantial leverage when deciding whether to seek the death penalty.
Secondly, prosecutors can strike out jurors without explaining their decision, in what is called “peremptory challenges”. This allows prosecutors to potentially strike out jurors based solely on racial considerations.
In 1986, the US Supreme Court gave out a major ruling regarding this issue in Batson v. Kentucky. Until then, DAs and prosecutors had been free to strike out Black jurors based solely on racial considerations, and had used this power extensively. Batson v. Kentucky established that a State effectively breaches the Equal Protection Clause in the 14th amendment when it forces a defendant to face a jury from which members of this defendant’s race have been intentionally excluded.
However, the decision did not point out how to establish that the prosecutor had acted based on race and not on any other non-racial consideration. It ruled that the defendant could rely on “all relevant circumstances” to establish a case of discrimination, but left it up to lower federal courts state courts to decide what was meant by “all relevant circumstances”. Because these courts applied very different standards, Batson ultimately failed at putting an end to peremptory challenges based on race.
More recently, the Snyder v. Louisiana case of 2008 has shown that the practice of striking out jurors based on race still remains. This capital murder case involved a Black defendant accused of having murdered his wife’s boyfriend and critically wounded his wife. In the course of this case, the prosecutor made peremptory strikes against all five of the Black jurors, thus creating an all-white jury. This jury ruled that the defendant should be executed. In a strong majority (7-2), the Supreme Court declared these strikes a violation of their Batson decision.
Wilson v. Beard, a case which arrived before the Court of Appeals of the 3rd Circuit, is enlightening in this regard because it provides concrete examples of how prosecutors go about selecting jurors in order to decrease the chances for a jury to be sympathetic to a Black defendant. In this case, the prosecutor openly advocated using peremptory challenges as a method to keep Blacks off juries:
“Avoid Blacks from low-income areas because they resent law enforcement & authority. (…) In selecting Blacks, you don’t want the real educated ones. [Avoid Black women, because] they’re downtrodden on two respects, they got two minorities, they’re women and they’re Blacks. ”
“Count the blacks & whites in jury when they first walk in so you can keep track of how many are left as you strike them. Mark down reasons you can articulate for striking as you question them: Let’s say the defense attorney makes an objection saying that you’re striking Blacks. Well, you’re not going to be able to go back and (…) make something up about why you did it. Write it down right then and there.”
Similarly, ineffective counsel and procedural bars are additional factors responsible for racism affecting the judicial process. A substantial proportion of Black defendants cannot afford efficient counsel. Since the Supreme Court case Gideon v. Wainwright (1963), defendants with low financial resources who are charged with serious crimes have a constitutional right to legal assistance. However, the funding for this legal assistance varies widely from state to state, while federal funding has been cut down since 1996. Moreover, legal counsel appointed by the State in capital cases are often insufficiently qualified and overworked, and cannot always offer quality legal advice.
Batson v. Kentucky was followed by another decision, McCleskey v. Kemp, in which the Supreme Court took a significant step backwards in terms of the evidentiary requirements needed to argue discrimination in the death penalty process. In this case, the defendant tried to show that the Georgia death penalty statute was applied in a discriminatory way, relying on Baldus’ study. However, the Court concluded that “statistical analysis alone could not prove an individual claim of discrimination in the criminal context”, and thus could not be the base for proving a violation of the Equal Protection Clause. With this case, discretion recovered the higher role it had previously held in the functioning of the judiciary. In other words, the Court went from finding in Batson that the unexplained could be inferred to be discrimination, to finding in McCleskey that there was a need for “exceptionally clear proof” of discrimination. This restrictive stance facilitates the continuation of a judicial system imbued with racism.
What can be done to remedy this injustice?
A partial solution to the issue of racial bias in the administration of the death penalty could be the adoption by States of statutes tackling this problem, such as the Racial Justice Act, which was enacted by the North Carolina General Assembly in August 2009. This Act expressly recognizes statistical evidence as sufficient proof that race influenced the decision to seek the death penalty. It also admitted that based on this evidence, relief can be granted and the death sentence replaced with life without parole, if it is found that race played a part in the judicial process. The enactment of similar laws in other States might efficiently counter racism in the administration of the death penalty.
Regarding peremptory challenges, the Supreme Court or the legislature could force prosecutors or DAs to explain their decision to strike out a potential juror. Though this would restrict prosecutorial discretion, a principle that is central to the US criminal justice system, it would be a means to ensure that racial bias does not interfere with the selection of the jury. A second possible measure could be to survey jurors about racist feelings in private exclusively, rather than in group settings. Additionally, additional funding for legal counsel would also decrease the chances for racial discrimination to interfere with the different stages of a capital case trial, since, as previously mentioned, African-Americans and racial minorities with a lower socioeconomic status than the national average often suffer from bad quality legal counsel.
Finally, Scott Phillips suggests a solution he refers to as “desocialization”, based on the idea that “social information about defendants and victims cannot influence a legal proceeding if this information is unknown”. The author suggests stripping the memoranda of any information that might give clues about the race of the victim / defendant for a given criminal case. This would mean removing the victim and defendant’s name and address, the geographical location of the crime, and obviously any pictures of the victim and defendant. Phillips also suggests removing socio-cultural markers that might help identify the race of the victim and defendant. For example, he suggests replacing “crack”, a drug he claims is often associated with African-American communities, with the more generic “drugs”.
The second part of this proposition implies that the prosecutor should at all costs remain isolated from media coverage of the case, in order to avoid finding out the race of the victim, and “if the DA inadvertently learns the race of the parties then he/she should allow a designated alternate to decide whether to seek death”. Though this can seem unrealistic, it would completely eliminate the possibility for racial bias to influence the judicial process.
Racial discrimination in the administration of the death penalty is caused by the very nature of some of the legal mechanisms of the US criminal justice system, as well as by the Supreme Court’s restrictive interpretation of “discrimination”. Today, many of the death penalty States do not seem prepared to abolish capital punishment. This should lead realists to favor improvement of the existing judicial system over abolition.
Though evidence of racial bias in the administration of the death penalty abounds, this finding has, so far, failed to be regarded as a sufficient reason for demanding abolition. Instead, the existence of racial discrimination in the criminal justice system is generally considered as one within a group of arguments in favor of abolition. Some observers have stressed that any future abolition remains largely unrealistic as long as abolitionists continue to resort to strictly moral arguments (e.g., condemning racism).
For those for whom the evidence of racial discrimination calls for the abolition of the death penalty altogether, it might be useful to resort to economic arguments to try to convince States to abandon a long tradition of killing convicted offenders. Such arguments are based on considerations of economic efficiency of the death penalty, and have led some States to abolish capital punishment for budgetary reasons. Means to an end, as they say.
 Scott Phillips is an associate professor at the University of Denver whose research examines capital punishment: Phillips, Scott. 2008. “Racial disparities in the capital of capital punishment.” Houston Law Review 45(3):807-840.
 Between 1882 and 1968, nearly 5,000 lynchings took place.
 Fraser, Michael (2010) “Crime for Crime: Racism and the Death Penalty in the American South,” Social Sciences Journal: Vol.10: Iss. 1, Article 9.
 “Nor shall any state (…) deny to any person within its jurisdiction the equal protection of the laws.”
1: AP Photo / The Savannah Morning News
2: “An African-American youth at a segregated drinking fountain in Halifax, NC, 1938, public domain.
3: Image taken from http://www.juryblog.com/category/peremptory-challenges/