Race News and Developments: 2006

Clemency Urged for Mentally Ill Man in North Carolina

At a press conference on November 1, the North Carolina Black Leadership Caucus called for the governor to commute the death sentence of Guy LeGrande (pictured).  Le Grande is scheduled to be executed on December 1.  He was allowed to represent himself at his 1996 murder trial, despite the fact that he claimed to be hearing messages from Oprah Winfrey and Dan Rather through television sets.  His defense lawyer, Jay Ferguson, said LeGrande falsely believes he has already been pardoned and will receive a large sum of money.  "The problem is you have a mentally ill person representing himself," Ferguson said. "When his standby counsel asked the court to review his mental competency, the judge asked the defendant if he wanted to do that and he said no. His response was to tear up the paperwork. So you've got a mentally ill defendant making the call on whether his competency should be examined."

The Black Caucus also pointed to issues of fairness and race in calling for a life sentence for LeGrande.  The co-defendant in the case, Tommy Munford, paid LeGrande to commit the murder of Munford's estranged wife.  Munford, who is white, received a life sentence.  LeGrande, who is black, was sentenced to death by an all-white jury.  "The awful reality may be that as a society we value White lives more than we do Black lives. We value all human life," said Rev. Dr. William Barber, State Conference President of the NAACP. "We want to stop the killing of our White brothers and sisters as well as our Black brothers and sisters."
(Herald Sun (NC) (Associated Press), Nov. 1, 2006; NC NAACP Press Release, Nov. 1, 2006). See Mental Illness, Race, and Arbitrariness.

NEW RESOURCES: South Carolina Study Finds Arbitrariness in Death Penalty Along Racial, Gender and Geographical Lines

A sophisticated statistical study of homicide cases in South Carolina by Professor Isaac Unah of the University of North Carolina-Chapel Hill and attorney Michael Songer found that prosecutors were more likely to seek the death penalty when the victim in the underlying murder was white, if the victim was female, and when the crime occurred in a rural area of the state.

The authors first examined the raw data of homicide cases in South Carolina over a 5-year period and noted:

During the 1993 to 1997 period, 2319 non-negligent homicides with known defendants were reported in South Carolina. Out of these 2319, we identified 130 cases, or 5.6%, in which prosecutors sought the death penalty.
. . .
 South Carolina prosecutors processed 865 murder cases with White victims and sought the death penalty in 7.6% of them. By contrast, prosecutors sought the death penalty in only 1.3% of the 1614 murder cases involving Black victims. . . .The data further suggest that non-Whites are far more likely than Whites to be homicide victims in the state. About 62% of homicide victims in the study were non-Whites; virtually all of these victims were African American.
. . .
Despite the high number of Black homicide victims, South Carolina solicitors sought the death penalty in only 1.2% of cases in which Black victims were murdered by Black offenders. This data indicates that Black victim discounting was practiced in South Carolina during the period we investigate. Black victim discounting describes the situation whereby the lives of Black victims are discounted in value through the leniency shown their accused murderers. By contrast, prosecutors sought the death penalty in 9.7% of cases in which a Black defendant killed a White victim and 6.7% of White on White murders.
. . .
South Carolina prosecutors were 5.8 times as likely to seek the death penalty against suspected killers of Whites as against suspected killers of Blacks.
. . .
As we suspected, prosecutors seek the death penalty with greater frequency in cases involving male defendants and female victims. Female defendants committed 12.1% of the homicides in our dataset. However, female defendants account for only 4.8% of death penalty cases. Similarly, 24.6% of murders involve at least one female victim, but these cases comprise over 47% of capital prosecutions.

The researchers then subjected the raw numbers to an analysis that accounts for the factors that make one case more heinous, or death-worthy, than another.  They then concluded:

[T]he analysis indicates an odds multiplier of 3.10 for White victim cases. That is, South Carolina solicitors are three times as likely to seek the death penalty against killers of Whites as against killers of African Americans.

With respect to geographical arbitrariness, they related a particular example that demonstrates the freakish nature of the death penalty:

In 1984, Raymond Patterson fatally shot an elderly man in the parking lot of a
South Carolina motel. The line dividing District 11 and District 5 runs through the
parking lot. Authorities eventually determined that Patterson was several feet within
District 11 at the moment of the shooting, and he was eventually sentenced to death.
District 5, which has sent only one person to death row in the past 10 years,146 has a death
seek rate of only 3.8%. By contrast, District 11 has sent 12 people to death row during
the same period and has a death seek rate of 13.2%. If Patterson had committed his
crime only three or four parking spaces away, he almost certainly would not have
received the death penalty. Patterson’s case epitomizes the freakish nature of capital
punishment that led Justice Stewart to declare in Furman v. Georgia that capital
punishment “[i]s cruel and unusual in the same way that being struck by lightning is cruel
and unusual.” (citation omitted).

They also concluded:

Legally impermissible victim and defendant characteristics also affect capital case
selection. Defendants accused of killing strangers are six times as likely to face capital
prosecutions as offenders who kill friends or family members in an identical manner.
Cases involving female victims are 2.5 times as likely to result in capital prosecutions as
cases with male victims. Perhaps most distressingly, the study confirms that insidious
racial disparities still haunt South Carolina’s death penalty system. South Carolina
prosecutors are three times more likely to seek the death penalty in White victim cases
than in Black victim cases. All of these results are statistically significant at or beyond
conventional significance levels.

(M. Songer and I. Unah, "The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolina," 58 S. Carolina Law Rev. ___ (Nov. 2006)) (emphasis added) (Prof. Unah is also currently the Director of the Law and Social Sciences Program at the National Science Foundation). See Race, Arbitrariness, and Studies. NEW VOICES: Kenneth Starr and Other

Officials Join Discussion of Death Penalty

The Pew Forum on Religion and Public Life, together with the Federalist Society and the Constitution Project, recently sponsored a panel in Washington,  D.C., examining the application, morality and constitutionality of the death penalty in the United States.

The panel was moderated by Virginia Sloan of the Constitution Project and featured Samuel Millsap, Jr., former Texas District Attorney, William Otis, Counselor to the Head of the Drug Enforcement Administration, Kenneth Starr (pictured), former Special Prosecutor and now Dean of the Pepperdine Law School, and Bryan Stevenson, Director of the Equal Justice Initiative in Alabama.  Excerpts from a transcript of the panel's presentation follow (in order of speaking):

As the former Bexar County district attorney in Texas and the head of the office that prosecuted Ruben Cantu, Samuel Milsap urged vigilance from his fellow prosecutors to ensure that innocent people are not  wrongfully convicted:

I've come to the conclusion — and it's based not on the Cantu case specifically but rather on other things that I've seen happen in the criminal justice system — that the system as it relates to capital murder is simply broken. It's my view in fact that because it's driven by human beings and decisions that are made by human beings, it can't be fixed, and that as a result what has to happen is that the option to put people to death has to end.
. . .
I would say to Justice Scalia, who said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn't even a crime. Carlos De Luna, the most recent, was probably innocent. And the person I prosecuted in 1985, Ruben Cantu, was probably innocent. And it didn't matter as far as I'm concerned in my position today whether Ruben Cantu was in fact innocent or not: the system simply doesn't work. What we see over and over again are situations where witnesses who have no reason to lie recant testimony and for good reasons.
. . .
I would say to the members of the jury in the Cantu case [ ] the following: you did your job very well; you did only what we as prosecutors asked you to do. You made the only decision that you could've made based on the evidence that was available to you. You are not responsible for the execution of Ruben Cantu. I am responsible for the execution of Ruben Cantu as the prosecutor who made all of the decisions that resulted in the presentation of that case to the grand jury, all of the decisions as to how that case would be prosecuted, and all of the decisions as to how that case would be argued and what we would ask the jury to do.

Dean Kenneth Starr talked about his experience representing two death row inmates and highlighted the importance of clemency in the fair administration of the death penalty:

[M]y own experience in recent years — in the Robin Lovitt case in Virginia . . . and in the still-unfolding Michael Morales case in California — suggest to me that governors and their advisors are tending to neglect this historic role of clemency and pardon in the system.
. . .
Michael Morales' case is illustrative of what I think is a terrible trend, abject deference to the judicial system with its inevitable flaws and a frank unwillingness on the part of virtually every governor in the country, and those who advise them, to fulfill their assigned role in our constitutional structure. This isn't just a Supreme Court admonition; it is taking note of a constitutional structural point.
. . .
And even in our bloodiest war, which pit brother against brother, Mr. Lincoln took time to review personally the files of those seeking clemency. It was part of his greatness.

Bryan Stevenson, who defends people facing the death penalty in the south, questioned society's need for capital punishment:

For the last 20 years I've actually been representing people on death row, and I've spent too many hours next to people who are about to be electrocuted, watching the hair shaved off their body before they're put in the electric chair or squirming on lethal injection tables and seeing the tears and the anguish. And I believe that the death penalty ought to be abolished because it is corruptive. It corrupts all of us. It is corrupting our courts. It is corrupting prosecutors. It is corrupting police. It is corrupting defense attorneys. It is corrupting jurors. It is corrupting our society. I think that because I see so much evidence of it, so much pain and trauma. And it's not just that we're unwilling to talk about it. We don't have the will in this country to recognize what we have to do for people who are disfavored.
. . .
The death penalty is largely employed in this country against the poor, the mentally ill, the vulnerable, and so I say we do have to end it. And to me the question isn't whether people deserve to die for the crimes they commit. The death penalty debate has been terribly misaligned. It's not a choice between the death sentence and no punishment; it's a choice really between two kinds of death sentences. Most jurisdictions have life in prison without parole. It's just another kind of death sentence.
. . .
And so in my mind this issue should not be just a question of whether people deserve to die, but whether we deserve to kill. We have tolerated so much error, so much injustice, so much unfairness; we have a system that is driven by poverty, that is undermined by race.
. . .
And with that history and with that awareness and with that consciousness, I think it's time for the death penalty to end. It's time that we put this behind us so we can begin to deal with these vexing problems of poverty and race and dysfunction and injustice.

  William Otis spoke against the abolition of the death penalty:

There are two central problems, I think, with a strict abolitionist argument. One is that it is a one-size-fits-all, don't-pester-me-with-the-facts sort of position. It simply does not matter, under that position, what the killer did, how utterly incontestable the evidence is of his guilt, how gruesome or cold blooded or calculated it was, how many people he killed, or how many people he killed in the past. None of that matters. A position like that significantly oversteps the justifications typically offered on behalf of the abolitionist position: bad lawyering, possible racism in any given case, that the police are hiding or manufacturing evidence. All of those things can be gone over and are gone over in great detail and over a long period of review in case-by-case analysis under the most exacting standards that the law knows. But that is a far cry from justifying complete abolition in every case no matter what.
. . .
The second basic, overriding problem with outright abolitionism is that it simply shoves off to one side what in any other context is the accepted and indeed the uncontroversial maxim that governs criminal punishment, and that is that the punishment should fit the crime. . . . It's fine to give a long sentence to a carjacker, to a child molester, to someone who poisons kids — teenagers by selling them dangerous drugs, for instance — but that is a different kind of thing. It's frequently said in these debates that death is different. It is different and so are the crimes like Lawrence Horn's and James Perry's and Timothy McVeigh's that bring about the death penalty. Let the punishment fit the crime.

(Event Transcript from the Pew Forum, July 21, 2006).  See also Arbitrariness, Clemency and Innocence.  

Federal Death Penalty Is Focused on New York--Almost All Defendants From Minorities

Although New York's death penalty was overturned by the state's high court in 2004, and the legislature has not reinstated it, the federal government has sought the death penalty more in New York than in any other state except Virginia.  However, none of the federal cases has resulted in a death sentence.

Since the federal death penalty was reinstated in 1988, thirty-seven federal capital cases have been authorized in New York, compared with 50 in Virginia and 385 nationwide, according to data from the Federal Death Penalty Resource Counsel Project.  Of the 37 capital cases in New York, 14 were resolved before going to trial.  Of the 13 cases that have gone to trial, none resulted in a death sentence.  Instead, defendants were sentenced to life without parole.

An additional 52 defendants have been charged with capital-eligible crimes in New York, and are awaiting a determination by U.S. Attorney General Alberto Gonzales as to whether the death penalty will be sought. New York has more potential federal death penalty cases in the pipeline than any other state.

According to data provided by the death penalty project, the Justice Department in Washington may be using a more aggressive approach towards seeking the death penalty in New York, noting that in many of the cases there was no recommendation from the local U.S. attorney to seek a death sentence.  Instead, the decision was solely that of the Attorney General.

On a national level, 161 capital cases have gone to trial, with 15 resulting in verdicts of not guilty on all capital counts in the case. The remaining 146 cases have resulted in 95 life sentences and 51 death sentences (or 32% of the cases that have gone to trial).

Almost all (35 out of 37, or 95%) of the defendants in the federal death penalty cases in New York are members of minorities.  On a national level in federal capital cases, 73% of the defendants (281 out of 385) are members of minorities.

(New York Law Journal, August 2, 2006).  See also Federal Death Penalty and Arbitrariness.

RAND Study Finds No Federal Race Bias in Death Penalty From 1995 to 2000

A recent RAND Corporation study of the federal death penalty from 1995 to 2000 found no evidence of racial bias. Even though the investigators found that the death penalty was more often sought against defendants who murdered white victims, researchers ultimately concluded that the characteristics of the crime, and not the racial characteristics of the victim or the defendant, could be used to make accurate predictions of whether federal prosecutors would seek the death penalty. The RAND study examined the files of 652 defendants who were charged with capital offenses while Janet Reno was U.S. Attorney General (between January 1, 1995 and July 31, 2000).

"Our findings support the idea that race was not a factor in the decision to seek the death penalty once we adjusted for the circumstance of the crime," noted Stephen Klein, a RAND senior research scientist and co-leader of the project.

The authors of the study noted its limitations:

[T]he three teams agreed that their analytic methods cannot provide definitive answers about race effects in death-penalty cases. Analyses of observational data can support a thesis and may be useful for that purpose, but such analyses can seldom prove or disprove causation.
. . .
In summary, given the inherent problems in using statistical models under these circumstances, our results need to be interpreted cautiously. There are many reasonable ways to adjust for case characteristics, but no definitive way to choose one approach over another. Bias could occur at points in the process other than the ones studied, such as the decision by federal prosecutors to take a case. Results could be different with other variables, methods, and cases.  Extrapolating beyond the data we analyzed here to other years, other defendants, other points in the decisionmaking process, or other jurisdictions would be even more problematic.

(Executive Summary).

The RAND report notes that U.S. attorney offices in the South forwarded the majority of the 652 cases sent to Reno for review, and this region accounted for about half of the recommendations to seek the death penalty. After reviewing the cases, Reno decided to seek the death penalty for 25% of the 600 defendants she considered. Approximately 50 defendants reached plea agreements after their cases were submitted by U.S. attorneys, but before the attorney general made a decision about whether to seek the death penalty. Most of the homicide cases that were studied were within the same racial group. For example, white defendants were more likely to kill white victims than African Americans or Hispanics.

(RAND Corporation Press Release, "RAND Study Finds No Evidence of Racial Bias in Federal Prosecutors' Decisions to Seek Death Penalty From 1995-2000"). Read the study.  See Federal Death Penalty, Arbitrariness, and Race.  At present, there are 44 defendants in the federal system who have received a death sentence--59.1% are members of a  minority race.  Most murders in the U.S. do not enter into the federal system because a decision is made to allow for state prosecution.

 
NEW RESOURCE: Study Finds Racial Disparities in Colorado's Death Penalty

A new study examined all cases in which the death penalty was sought in Colorado over a 20-year period, from 1980 to 1999. The study identified 110 death penalty cases, and compared the race and gender of the victims.  The authors concluded that the death penalty was most likely to be sought for homicides with white female victims. They also determined that the probability of death being sought was 4.2 times higher for those who killed whites than for those who killed blacks. (Michael Radelet, Stephanie Hindson, & Hillary Potter, 77 Univ. of Colorado Law Review 549 (2006)). See Law Reviews, Race, Arbitrariness, and Sentencing.

RESOURCES: "Death Row USA" Spring 2006 Report Available

The latest edition of the NAACP Legal Defense Fund's "Death Row USA" shows that the number of people on the death row in the United States is continuing to decline, falling to 3,370 as of April 1, 2006. The size of death row increased every year between 1976 and 2000, but since then it has been in a slow decline.

According to the report, the states with the largest decrease in death row population since January 1, 2006 are Texas (down by 5) and South Carolina (down by 3).  California continues to have the nation's largest death row population (652), followed by Texas (404), Florida (392), Pennsylvania (232), and Ohio (195).

Nationally, the racial composition of those on death row is 45% white, 42% black, and 10% latino/latina. Of jurisdictions with more than 10 people on death row, Texas (69%) and Pennsylvania (69%) continue to have the largest percentage of minorites on death row.  Nearly 80% of the victims in crimes that resulted in executions were white.

Death Row USA is published quarterly by the NAACP Legal Defense Fund. The report contains the latest death row population figures, execution statistics, and an overview of the most recent legal developments related to capital punishment.  These death row statistics may differ slightly from those compiled by the Bureau of Justice Statistics because of a difference in methodologies.

See Death Row USA, April 1, 2006. See also DPIC's Death Row.

New Research Examines Racial Stereotypes and the Death Penalty "Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes" contains new research on race conducted by professors from Stanford, UCLA, Yale and Cornell, led by Prof. Jennifer Eberhardt. The article, to be published in the May 2006 edition of Psychological Science, examines whether the likelihood of being sentenced to death is influenced by the degree to which a black defendant is perceived to have a stereotypically black appearance.  Using data from a 1998 study in Pennsylvania by Prof. David Baldus, the research tended to show that, among black defendants who kill white victims, the more stereotypically black a defendant is perceived to be, the more likely that person is to be sentenced to death, even controlling for other appropriate variables.

Using more than 600 death-eligible cases from Philadelphia in which a black defendant was charged with killing a white victim, the researchers found that 24.4% of defendants who appeared less stereotypically black received a death sentence, while 57.5% of those who appeared more stereotypically black received a death sentence. Students at Stanford rated the degree of stereotypical features from photos of black male defendants who had been convicted of murder in Philadelphia. 

In a similar examination of black defendants accused of killing black victims, the death sentencing rates of those who were perceived as looking more stereotypically black and those who appeared less stereotypically black were nearly identical (45% and 46.6%, respectively).

The study was conducted by professors Jennifer L. Eberhardt (Stanford) , Paul G. Davies (UCLA), Valerie J. Purdie-Vaughns (Yale University), and Sheri Lynn Johnson (Cornell Law School). (Psychological Science, Volume 17, Number 5 (2006)).  See Race and Studies.

Harvard Conference Explores Race and the Death Penalty


A May 2006 conference held at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School examined new research, legal defense, and public response to the issue of race and the death penalty. The conference, "From Lynch Mobs to the Killing State: A National Conference on Race and the Death Penalty," featured a number of national academic and legal experts including Barry Scheck, Peter Neufeld, Charles Ogletree, Rubin "Hurricane" Carter, George Kendall, Stephen Bright, Andrea Lyon and Hugo Bedau.

During the conference, sessions explored the connections between America's racial politics and the practice of capital punishment, as well as the ways in which the nation's focus on terrorism may be further eroding protections for the accused. The conference coincided with the release of a new book, "From Lynch Mobs to the Killing State," co-edited by Professors Charles Ogletree and Austin Sarat. This book is available on Amazon for twenty-two dollars.

To learn more about this event, see the Conference's Web site. For more information regarding race and the death penalty see Race and Studies.

NEW VOICES: NAACP President Signals Greater Organizational Involvement in the Death Penalty

In a recent interview with The Washington Post, NAACP president Bruce C. Gordon (pictured) spoke about capital punishment and called for a halt to executions in every state until questions of accuracy and fairness can be addressed. Gordon, who challenged California Governor Arnold Schwarzennegger for refusing to commute the death sentence of Stanley Tookie Williams, noted that the death penalty will be a key issue for the NAACP:

African Americans represent 10 percent of the population and 42 percent of the population on death row. That to me illustrates the inequity of the system and the appropriateness of a need for a moratorium. I do not believe in the death penalty. But this position around the death penalty is not new to the NAACP. Until we can be convinced that there is no bias, until we can be convinced that there is a just and fair application of the death penalty, there needs to be a moratorium.

We are going to make our position and presence known in every state, every time a prisoner is set to be executed. We will call governors, we will lobby legislatures. I intend to mobilize the NAACP around this -- we feel strongly about it, and we're going to be stronger about keeping it front and center.

(The Washington Post, January 16, 2006).  See New Voices.