On this
date, May 21, 1904, FIFA
(Fédération Internationale de Football
Association) was founded. To celebrate the 110th anniversary,
we chose Charles Lane’s article and an article from M.
Marshall. As FIFA now have rules against racism, We chose these two
articles to show that we do not tolerate racism myself. We care for
murdered victims and their families regardless of race and nationality.
PAGE TITLE: http://www.the-american-interest.com/
ARTICLE
TITLE:
The Death
Penalty and Racism The Times Have Changed
DATE: November/December
2010
AUTHOR: Charles
Lane
AUTHOR
INFORMATION: Charles "Chuck"
Lane is an American journalist and editor who is an editorial
writer for The Washington Post and a regular guest on Fox News Channel.
Lane was the lead editor of The New Republic from 1997 to 1999. After
the New Republic, Lane went to work for the Post, where, from 2000 to 2009, he
covered the Supreme Court of the United States and judicial system issues. He
has since joined the newspaper's editorial page.
 |
|
Charles Lane
|
From the November/December
2010 issue: The Death Penalty and Racism The Times Have Changed Charles
Lane
The death
penalty is back in the news. In the past month alone, Virginia has executed a
woman for her role in the murder-for-hire of her husband and stepson, despite
claims that she was nearly mentally retarded. States have grappled with a
looming shortage of lethal-injection drugs. A Federal court in Georgia has
rebuffed a death-row inmate’s claim that he is an innocent man, falsely
convicted—but defense lawyers insist the judge got it wrong. And in North
Carolina, the vast majority of that state’s 156 death-row inmates have filed
appeals based on a new law that permits them to challenge their sentences on
grounds of racial bias.
For
opponents of the death penalty, these and other events add up to more evidence
that capital punishment in the United States is, in the words of one prominent
study, “a broken system.” Of course, even a smoothly functioning death penalty
would, in their view, violate basic human decency and basic human rights. Their
emphasis on capital punishment’s operational flaws is a concession to political
reality. According to the Gallup Organization, 65 percent of Americans favor
the use of the death penalty for a person convicted of murder. Half of
Americans say the death penalty is not imposed often enough; only 20 percent
say it is imposed too often. So opponents’ best hope is to encourage doubts
about the way it is implemented – an approach that offers the public a way to
be against the death penalty, as it exists in the United States today,
without necessarily ruling it out in principle.
Racial
bias ranks high on the list of accusations. There’s a good reason for this:
racial disparities in capital sentencing are an historical reality—and a
particularly ugly one at that. Anyone who doubts the death penalty’s past
connection with racism need only consider this statistic: Between 1930 and 1967
(at which point executions stopped pending a decade-long Supreme Court overhaul
of the death penalty), 54 percent of the 3,859 people put to death under
civilian authority in the U.S. were African American. This was not only out of
proportion with the black share of the total population but also out of
proportion with the percentage of serious crimes committed by blacks. Given
that history, lingering racism is an undeniable risk factor looming over
today’s system.
The
question, however, is whether that risk is actually as large and as
ineradicable as conventional wisdom maintains. And the answer is: probably not.
In fact, much of the statistical evidence cited by death-penalty critics to
show that blacks and whites fare differently in capital cases does not
necessarily prove racism at all. To the contrary, it could well reflect racial
progress.
In the
past, the disproportionate impact of capital punishment against blacks
reflected racism all across the country, but especially in the Southern states,
which used execution to enforce a broader caste system. The South put blacks to
death for rape far more often than whites—especially when the alleged victim
was a white woman. Of the 455 men executed for rape in the United States
between 1930 and 1967, 90 percent were African American.
These
appalling facts formed the background for the Supreme Court’s consideration of
the death penalty in the 1960s and 1970s. It was no accident that the Legal
Defense Fund of the National Association for the Advancement of Colored People,
known as the LDF, led the constitutional challenges. The litigation culminated
in a 1972 case, Furman v. Georgia, in which the Supreme Court struck
down all existing state death-penalty laws. Two of the three cases grouped
under that title involved African American men sentenced to death for raping
white women in the South. The third was a black man convicted of killing a
white man in the course of a bungled burglary.
To be
sure, the Supreme Court did not explicitly confront racial disparities during
this period; it refused even to hear the argument that the discriminatory death
penalty for rape violated the 14th Amendment guarantee of equal
treatment under state law. However, in Furman, at least one justice in
the majority, William O. Douglas, opined that racial disparities were part of
what made the death penalty “cruel and unusual” under the 8th
Amendment, and other justices alluded to race in their analyses of the
penalty’s arbitrariness. “Race discrimination was not formally part of Furman,
and Douglas was the only justice who emphasized it”, writes Professor Stuart
Banner of the University of California at Los Angeles law school, a death
penalty historian. “But everyone knew it was lurking not far beneath the
surface.”
Furman left room for states to reinstate capital
punishment – if they could purge their laws of the general lack of consistent
standards, racial or otherwise, upon which the court had based its
constitutional ruling. The states did so by requiring juries to weigh the defendant’s
sentence separately from his guilt or innocence, and, in this “sentencing
trial”, to take account of both “aggravating” evidence that supported the death
penalty and “mitigating” evidence that argued against it. In 1976, the court
approved of the changes, in a case known as Gregg v. Georgia. A
three-justice plurality concluded that the revisions “narrowed the class of
murderers subject to capital punishment” and “minimize[d] the risk of wholly
arbitrary and capricious action”, thus curing the ills identified in Furman.
Though
usually remembered as the court’s failed attempt to abolish the death penalty, Furman
nevertheless had a lasting impact, rendering capital punishment less blatantly
racist than it had been in the past. Most new state laws adopted in response to
Furman omitted rape as a capital crime. Gregg provided at least
some assurance that jurors would consider an individual defendant’s
disadvantages in life, including those related to racial discrimination. Even
more importantly, perhaps, Gregg created a basis for condemned men to
claim on appeal that their juries had failed to consider such “mitigating”
factors.
And
finally, the court followed up Gregg in 1977 by banning the death
penalty for rape of an adult woman, albeit in a decision that emphasized not
race but society’s evolving notions of the appropriate punishment for such
crimes. Though only Georgia still prescribed death for rape at that point, the
court seemed determined to make sure it never came back.
Taken
together, these changes helped transform the racial composition of death row.
Whereas some 54 percent of those executed between 1930 and 1967 were black, as
we have seen, 56 percent of those executed in the post-Gregg era have
been white, while 35 percent have been black and 9 percent have been Latinos
and other minorities. In other words, the African American share of executions
dropped by a third. Whites also make up the largest portion of those sentenced
to death during the post-Gregg period.
To be
sure, this did not necessarily mean that racial imbalances had been eliminated.
African Americans were still overrepresented on death row relative to their
share of the population. And, in the aftermath of Gregg, death penalty
critics discovered a new—but to them no less troubling—racial pattern in
sentencing. The disparity involved not the race of the defendant, but the race
of the victim. In a famous LDF-funded study of 2,484 murder cases in Georgia
between 1973 and 1979, Professor David Baldus of the University of Iowa showed that,
even after taking account of 39 non-racial variables, defendants charged with
killing whites were 4.3 times as likely to receive the death penalty as
defendants charged with killing blacks. Within the category of those who killed
whites, black defendants were 10 percent more likely to receive a death
sentence than were whites.
Armed
with the Baldus study, the LDF took another shot at persuading the Supreme
Court that the death penalty was hopelessly infected with arbitrary
considerations such as race, even in Georgia, whose new statute the court had
specifically approved in Gregg. Of course, the argument had extra
plausibility in a Southern state that had recently emerged from a racist past.
To the LDF, Baldus’s statistics showed that, consciously or not, Georgia’s
legal apparatus placed a higher value on white life than black life, and thus
punished murder of whites more harshly than murder of blacks, especially when a
black man had the effrontery to kill a white person.
In a 1987
case, McCleskey v. Kemp, the court rejected this claim by a vote of 5–4.
For the majority, Justice Lewis F. Powell wrote that the LDF had failed to show
discriminatory intent by Georgia officials, and that the court could not infer
unconstitutional motives from Baldus’s statistics. “We decline to assume that
what is unexplained is invidious”, Justice Powell wrote. To hold otherwise,
Justice Powell added, would undermine the entire justice system by rendering
unconstitutional any statistical disparity in sentencing, capital or otherwise,
among ethnic groups, men and women, or even attractive defendants and
unattractive ones.
McCleskey foreclosed constitutional challenges based on
statistics such as those in Baldus’s study, but it could not stop Baldus and
others from continuing their research. They went on to produce additional
studies showing similar race-of-the-victim disparities in states across the
country. Most death-row inmates fighting their sentences in North Carolina
today have cited a study by Michigan State law professors (including a former
student of Baldus) showing that killers of whites are more than twice as likely
to get death as killers of blacks.
As a
result, McCleskey has acquired a bad reputation; some legal academics
liken it to the 1857 Dred Scott decision that said people of African ancestry
could not claim U.S. citizenship. After retiring from the court, Justice Powell
himself told a biographer that he regretted his opinion in the case.
But
Justice Powell may have been excessively self-critical. Though statistical
research confirms Baldus’s observations, it does not necessarily support the
interpretation of the data that death penalty opponents advanced in McCleskey—and
still advance today. The fact that killers of whites have been more likely to
receive the death penalty since Gregg does not necessarily reflect
racism of the kind that pervaded the pre-Furman system; it does not
necessarily reflect racism at all.
This
assessment begins by acknowledging that African Americans commit a
disproportionate number of murders in the United States: approximately half,
according to government statistics. Yet in the death penalty states of post-Gregg
America, black murderers have actually been somewhat less likely to
wind up on death row than their white counterparts. Blacks committed 51.5
percent of murders nationwide between 1976 and 1998, according to a 2004 study
by Professors Cornell law professors John Blume, Theodore Eisenberg and Martin
T. Wells, but accounted for only 41.3 percent of those sentenced to death from
1977 to 1999. This relationship held true in every death penalty state,
and—contrary to conventional wisdom—the under-representation of blacks on death
row was greatest in the South. Only California, Utah and Nevada came
close to sentencing black murderers to death in proportion to their share of
the total.
The
Cornell law professors (who oppose the death penalty) confirmed Baldus’s
research in the sense that they also detected what they called “a racial
hierarchy” in capital sentencing. Blacks charged with killing blacks were
sentenced to death less often than whites charged with killing whites, and
blacks charged with killing whites were sentenced to death most frequently of
all.
Race,
however, “tugs in two different directions”, they argued. The higher likelihood
of a death sentence for black killers of whites tends to increase the black
share of death row. The lower likelihood of a death sentence for black killers
of blacks tends to decrease it. And the second effect is far larger than the
first, since blacks are far more likely to kill other blacks than they are to
kill whites. As the Cornell law professors put it, “Interracial crime is the
exception, not the rule.” Therefore, the relative lack of black killers of
blacks on death row “swamps” the relative excess of black killers of whites and
largely explains the under-representation of black murderers among those
sentenced to death.
That
leaves the question of why black-on-black murder so seldom results in the death
penalty. One possibility is that these killings are less likely than others to
take place during the commission of an additional crime, such as rape, robbery
or kidnapping, which is the usual standard for aggravated or capital murder
under state death penalty statutes. According to recent data assembled by the
non-profit Violence Policy Center in Washington, DC, black-victim homicides
rarely include additional crimes. In 2006, for example, there was no other
felony in 69 percent of the black-victim homicides for which the circumstances could
be identified. The typical scenario, the study showed, was an argument between
friends, family members, or acquaintances that escalated until someone
impulsively reached for a gun and shot the victim.
According
to the Cornell law professors, the main factor is the reluctance of local
prosecutors to seek the death penalty in black-on-black homicides. What
accounts for that reluctance? While not dismissing the possibility that white
prosecutors—consciously or not—placed a lower value on black life, the Cornell
professors emphasized another reason: prosecutorial realism. Above all,
prosecutors do not seek the death penalty unless they think they can actually
persuade a jury to impose it. In jurisdictions with large African American
populations, where most black-on-black crime occurs, persuading a jury to
sentence a defendant to death is relatively difficult. As much survey data
confirms, African Americans are the one U.S. demographic group that largely
opposes the death penalty, no doubt because of its terrible historical impact
on blacks in the South. Also, in jurisdictions where elected prosecutors must
appeal to black voters, prosecutors are that much less likely to support
capital punishment.
This is
how race-of-the-victim disparities can be said to reflect racial progress.
After all, blacks neither voted in elections nor served on juries in
substantial numbers, especially in the South, until the late 1960s. Now that
they do, they appear to be using this power to limit capital punishment in the
cases closest to them. In a separate study, published in 2005, Eisenberg found
support for this hypothesis in county-level data for five death penalty
states—Georgia, Maryland, Pennsylvania, South Carolina and Virginia. The death
sentence rate in black defendant/black victim homicides decreased as the
percentage of blacks in a county’s population increased. “This suggests that
minority community skepticism about the justness of the death penalty is a
contributing factor to low death sentence rates” in black-on-black murder
cases, Eisenberg concluded.
Maryland
presents a particularly suggestive case. Its pre-Furman death penalty
practices resembled those of the South. A significant portion of its executions
prior to 1972—about a third—came in rape cases. Maryland re-established the
death penalty after Gregg in a 1978 statute that omitted the death
penalty for rape and specified first-degree murder with certain aggravating
factors as the only death-eligible crime. Since then, Maryland has not been a
major locus of the death penalty; despite its relatively high murder rate, the
state sentenced only 66 murderers to death after 1978. Of those, only five were
eventually executed (the first in 1994), and five remain on death row.
The other
thing that happened in post-Gregg Maryland was the rise of black
majorities in the city of Baltimore and in Prince George’s County, a suburb of
Washington, DC. These two jurisdictions account for the vast majority of
homicides in the state, most of which involve both black victims and perpetrators.
Yet public officials in both jurisdictions have generally eschewed the death
penalty, consistent with their own views and the views of their constituents
(who are also potential jurors). Baltimore city prosecutors last sought and won
the death penalty in 1998 in a single case that was later overturned on appeal.
The last Prince George’s County death sentence occurred in 1996.
The
situation could not have been more different in Baltimore County, a 75 percent
white suburb adjacent to the city of Baltimore. During most of the post-Gregg
period, the county’s chief prosecutor adhered to a policy of seeking the
death penalty in every eligible case. Ironically enough, she did so to avoid
any appearance of racial discrimination; her view was that she could never be
accused of exercising prosecutorial discretion in a discriminatory manner if
she never exercised it at all.
Given
Baltimore County’s relatively large population (750,000 in 2005) and its white
majority—which meant that most homicide victims were white—and given the polar
opposite policies pursued by its black-majority neighbors, it is no wonder that
Maryland’s death penalty was meted out more frequently to killers of whites.
But this was a consequence of county-level politics and demography, not
statewide racial discrimination. Indeed, much if not most of the racial and
jurisdictional imbalance in Maryland’s death penalty may demonstrate the
increased power of black citizens during the post-Gregg era. Most
African Americans in Maryland, like most African Americans generally, oppose
the death penalty; and where they live, it has been abolished de facto.
It would
be naïve to suggest that racism has been eliminated in the United States; but
it would be equally mistaken to suggest that nothing has changed. To the extent
that death penalty foes do the latter, they are misinterpreting the data and
misleading public opinion.
JLARC Study Finds No Racial Bias in Virginia Death Penalty Sentencing
The
race of convicted killers is not a factor in death penalty sentences in
Virginia, according to a study by the Joint Legislative Audit and Review
Commission, the General Assembly's independent investigative and research arm.
But the location of the trial is significant. Urban juries are much less likely
to impose capital punishment than suburban and rural ones. The study's findings
were discussed at a February 4th panel discussion on the death penalty
featuring local defense attorneys Steven Rosenfield and Rhonda Quagliana;
Albemarle County Commonwealth's Attorney James Camblos; Rob Lee, director of
the Virginia Capital Representation Resource Center; and Law School Professor
Richard Bonnie, an expert on the death penalty who has also represented persons
facing it. Professor Earl Dudley moderated.
Calling
the study "scientific" and "methodologically sound," Bonnie
summarized the key elements in the JLARC report. "It's really a very good
study. It tries to ascertain the facts rather than use them in support of an
opinion."
"The
main [JLARC] finding is a locational effect," he said. "Holding
everything else constant, there is a higher percentage of life-sentence cases
in urban areas. In suburban and rural areas, there are more death penalties
imposed.
"This
effect has received little attention. Is the morally relevant community the
state? If so, then there is an unequal application across the state. But maybe
the morally relevant community is the local community, as in obscenity cases.
Why shouldn't that be a legitimate grounding? This is what the General Assembly
should be thinking about. Prosecutors are judging whether the jury in their
area will impose a death sentence. Among capitally-eligible cases across the
state, 30 percent get the death penalty, but in urban areas it's only 16
percent."
An
equally significant conclusion was drawn from race data, he said. "There
is no race-of-defendant effect here. That is very important for supporters of
the death penalty. Furthermore, there appears to be no race-of-victim effect.
Based on studies in other states, that was the real question. The report says
no. But there is a red flag in the report statistics that seems to show that a
case involving a white victim is three times more likely to result in a death
sentence than one with a black victim, controlling for all other factors,"
Bonnie said. "But the data in the sample—200 cases—is not large enough to
establish significance. The report says this is probably a result of
'instability' in the capital sentencing numbers. So maybe it's a pink
flag."
Bonnie
described the Virginia Supreme Court's appellate review of capital punishment
cases as "thin," "as passive as any state in the country—meaning
that no state is more passive," "highly deferential to trial
courts," and "reluctant to interfere." More "comparison
reviews" should be made, he said, to ensure that a death sentence in one
case is comparable to other cases where it was imposed. He faulted current
reviews for using a narrow comparison sample (the court doesn't look at an
adequate sample of cases in which a life sentence was imposed) and urged that
reviews include any case in which a capital sentencing hearing was held.
Furthermore,
Virginia "applies the most rigid rules of procedural forfeiture,"
Bonnie said. "There is a substantial likelihood that claims not raised by
lawyers at trial will not be reached in post-conviction review." Bonnie
has represented four capital defendants, three of whom were ultimately executed
and the fourth had his sentence commuted to life by then Gov. Wilder.
In
11 years as Commonwealth's Attorney, Camblos has prosecuted three cases in
which the defendant was eligible for the death penalty but in no case has he asked
for it. "I've never tried one all the way through. But I'm the only person
here who has to answer to the families of the victims of murder. That is a
whole different picture. That is down in the trenches."
He
suggested that the rural/urban discrepancy in capital sentences reflected
desensitization to violence in cities, whereas suburban and rural communities
retain a greater sense of outrage over murders. "Albemarle is a liberal
community. Not as liberal as Arlington [County], more liberal than Nelson [County].
I wouldn't proceed with a death penalty recommendation in a case unless I
thought it would fly with the jury. I've never asked for the death penalty, but
if I have to I will. It would be under very very limited circumstances. Some
circumstances of some cases are so despicable, so far beyond what we think
humans could possibly do."
He
said capital cases are so serious that he "gives the defending attorney
anything and everything I've got. I don't do that with other cases." Given
his experience as a defense lawyer, especially recalling one case in which a
client was wrongly convicted on false testimony (though ultimately justice was
done), Camblos said he would not consider asking for the death penalty on the
basis of witness testimony for which there was no corroborating physical
evidence.
Rosenfield
argued that capital defendants often get less competent representation and
faulted the JLARC report for not assessing that factor. "One percent of
Virginia attorneys are publicly disciplined in any year. But for those
appointed to represent capital case the figure is 6 percent. One in 10 capital
defendants have lawyers who subsequently lose their license to practice. Judges
don't choose the legal stars in their communities to handle such cases."
Camblos
rejected that claim. "Most judges do choose the stars," he asserted.
"Our
system [for handling capital cases] is broken in Virginia," Rosenfield
contended. "Trial lawyers defending cases have no right to an
investigator. Counties have the police or sheriff. We have no right to know who
will come against our client as a witness. In one-third of U.S. capital cases a
jailhouse snitch is used in the prosecution's case. We have no right to know
that's coming in Virginia. The deck is stacked against criminal defendants
here."
Legal
assistance to defendants "drops off dramatically" after their
conviction, VCRRC director Lee said. "The Habeas process is the quality
review process. Many problems with the administration of the death penalty are
the result of uneven quality of representation in cases. But all lawyers are
not the same."
• Reported by M. Marshall
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