Race

The Reverend Dr. Martin Luther King, Jr.: "Hate cannot drive out hate; only love can do that."

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on the death penalty. Dr. King's philosophy of non-violence had no room for capital punishment. In one of his most famous sermons, "Loving Your Enemies," Dr. King preached: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that." In 1952, Jeremiah Reeves, a 16-year-old African-American Montgomery, Alabama high school student was arrested for allegedly raping a white woman with whom he was having an affair. The teen was interrogated for two days, deprived of sleep, strapped into an electric chair, and told the only way to escape the death penalty was to confess. He did so, then recanted. The trial judge barred the defense from telling the all-white jury the circumstances of the "confession," and Reeves was sentenced to death. Six years later, Alabama executed him. On Easter Sunday 1958, nine days after the execution, Dr. King preached to a crowd of 2,000 on the steps of the state capitol about the "tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence." Dr. King continued: "But not only are we here to repent for the sin committed against Jeremiah Reeves, but we are also here to repent for the constant miscarriage of justice that we confront everyday in our courts. The death of Jeremiah Reeves is only the precipitating factor for our protest, not the causal factor. The causal factor lies deep down in the dark and dreary past of our oppression. The death of Jeremiah Reeves is but one incident, yes a tragic incident, in the long and desolate night of our court injustice. ... Truth may be cruficied and justice buried, but one day they will rise again. We must live and face death if necessary with that hope." According to the Bureau of Justice Statistics, 455 people were executed for rape in the United States between 1930 and the Supreme Court's decision declaring the nation's death penalty statutes unconstitutional in 1972. 405 (89.1%) were black. The use of the death penalty for rape remained almost exclusively a Southern phenomenon: 443 of the executions for rape (97.4%) occurred in former Confederate states. Noting the different punishment of blacks and whites for allegations of interracial rape, Dr. King later wrote in his memoir, Stride Toward Freedom, it was "[f]or good reason the Negroes of the South had learned to fear and mistrust the white man's justice." In a November 1957 interview Ebony asked Dr. King: "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God." 

U.S. Supreme Court Orders Federal Appeals Court to Reconsider Case Involving Racially Biased Juror

The U.S. Supreme Court has directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal court review of his claim that he was unconstitutionally sentenced to death because he is black. On January 8, the U.S. Supreme Court issued a 6-3 opinion sending Tharpe's case—in which a racist juror used an offensive slur to describe the defendant and doubted whether African Americans have souls—back to the U.S. Court of Appeals for the Eleventh Circuit for further consideration whether the federal courts should hear his claim of juror bias. Seven years after Tharpe was sentenced to death, his attorneys obtained a sworn affidavit reviewed and initialed by Barney Gattie, a white man who served as a juror at Tharpe's trial. In his statement, Gattie said, "After studying the Bible, I have wondered if black people even have souls," and, "there are two types of black people: 1. Black folks and 2. Ni[**]ers." Gattie also expressed his belief that Tharpe "wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did." According to Gattie, the victim was one of the "nice black folks," but "[i]f [the victim] had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much." Despite these statements, the Georgia state courts rejected Tharpe’s racial-bias claim after prosecutors obtained a second affidavit from Gattie asserting that he was not a bigot. State prosecutors have not denied that Gattie made these statements, but have attempted to defend them by saying that Gattie had been drinking when he signed the affidavit. The Georgia federal courts had also denied Tharpe relief on the claim, deferring to the fact-finding of the state courts that Gattie's bigoted statements were not prejudicial. However, in 2017, the U.S. Supreme Court decided two major cases that Tharpe said required the federal courts to reconsider his claim:  Buck v. Davis, a Texas death-penalty case in which the racially biased testimony of an expert witness created an unacceptable risk that Buck was sentenced to death because he was black, and Pena-Rodriguez v. Colorado, a case that overturned a state-court rule that prevented defendants from using racially biased statements made by a juror as evidence of juror misconduct during deliberations. Georgia was scheduled to execute Tharpe in September 2017, but the Supreme Court granted him a last-minute stay to decide whether to review his case. The Court ultimately accepted review of the case, issued a per curiam ruling in Tharpe v. Sellers  without further briefing or argument, and returned the case to the Eleventh Circuit, which must now consider whether to issue a Certificate of Appealability—a procedural prerequisite to considering an issue on appeal. Brian Kammer, Tharpe's attorney, said, "We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death." Justice Clarence Thomas dissented, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments.

Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection

The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky  by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

Anti-Death Penalty District Attorney Elected in Philadelphia, the Nation's 3rd Largest Death Penalty County

Philadelphia, Pennsylvaniathe nation's third largest death-penalty county—has elected as its new district attorney a candidate who ran on a platform of ending mass incarceration and eschewing use of the death penalty. Democrat Lawrence Krasner (pictured), a longtime civil rights lawyer and opponent of the death penalty, who once joked that he’d “spent a career becoming completely unelectable,” received 75% of the vote in easily defeating his Republican opponent Beth Grossman. As a civil rights and criminal defense attorney, Krasner had represented political protesters and Black Lives Matter activists, and had sued the Philadelphia Police Department on numerous occasions. He has likened use of the death penalty to "lighting money on fire,” saying that capital punishment “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962.” A July 2015 DPIC analysis of death sentences imposed in Philadelphia reported that at least 148 death sentences imposed in the city since Pennsylvania reinstituted the death penalty in 1974 had been overturned. In that time, one prisoner from Philadelphia—who voluntarily dropped his appeals—was executed. Krasner called his election a "mandate" for "transformational change." He said, "[t]his is a story about a movement. And this is a movement that is tired of seeing a system that has systematically picked on poor people—primarily black and brown poor people." Those are the people who, historically, have been most disproportionately affected by Philadelphia's death penalty. A major study of Philadelphia's death penalty in the 1980s and 1990s documented that black capital defendants faced more than triple the odds of being sentenced to death than did other defendants, and that an estimated one-third of the more than 100 African Americans who were on the city's death row at the turn of the century would have received life sentences but for their race. Another study showed that death-sentencing in the city was heavily influenced by a defendant's physical appearance: the probability that a black defendant charged with killing a white victim would be sentenced to death doubled if the defendant was perceived as having "stereotypically African" physical features—darker skin, a broader nose, and thicker lips. Even as the number of death sentences imposed in Philadelphia has dramatically declined—falling from an average of 9.9 death sentences per year in the 1990s to less than one sentence per year this decade—the racial disproportionality of the death sentences imposed in the city has grown. Nine of the 99 death sentences imposed in Philadelphia in the 1990s were directed at white defendants, as compared to only one of the 25 death sentences imposed this century, and 45 of the last 47 people sentenced to death in the city have been defendants of color. 

Federal Court Finds Intentional Misconduct by Alabama Prosecutor, But Lets Death Penalty Stand

Finding that an Alabama prosecutor with a history of misconduct had "intentionally" made improper comments in the capital trial of Artez Hammonds (pictured) "in flagrant violation" of a pre-trial order warning him not to do so, the U.S. Court of Appeals for the Eleventh Circuit nevertheless denied Hammonds's appeal and permitted his conviction and death sentence to stand. While the court noted that the prosecutor, District Attorney Douglas Valeska "had been reprimanded in prior cases for engaging in precisely the same unconstitutional and unethical behavior" and said it was "very disturbed" by the prosecutor's deliberate unconstitutional references to Hammonds's decision not to testify and to his prior incarceration, the court ultimately held that the comments did not affect the jury's verdict and denied him relief. While in prison for an unrelated offense, Hammonds was tried, convicted, and sentenced to death in Houston County in 1997 for the rape and murder of a white woman in a high-profile case that had gone unsolved for six years. Despite a population of only 100,000, the county currently has 18 people on its death row. As of January 1, 2013, its death row ranked 30th in size among all counties in the United States, even though it was less than one-quarter the size of any other county in the top thirty, and two-thirds of those counties had populations of more than one million. Valeska served as Houston County's district attorney for three decades until his retirement in January 2017, obtaining more than a dozen death sentences during that period. A study by the Equal Justice Initiative in May of 2008 reported a 16-fold increase in the number of death sentences in Houston County between 1995 and 2008, while Valeska was in office, over the death sentences imposed in the previous two decades. During his time in office, Valeska was found to have violated the rights of capital defendants on numerous occasions by unconstitutionally striking African Americans from death penalty juries because of their race and making improper inflammatory comments during trial. Because of this history, Hammonds's trial lawyer specifically requested the court, before the trial started, to order Valeska to refrain from commenting on Hammonds's decision to exercise his Fifth Amendment right not to testify. But, as the Eleventh Circuit wrote, "neither the Constitution nor a direct order from the court inhibited Valeska" from improperly commenting on Hammonds's choice not to testify. The court critcized the Alabama Attorney General's office, which represented the state during the appeal, for "perpetuat[ing] the charade that Valeska did not intend" to violate Hammonds's rights, saying that the state attorney's "insistence on defending this improper conduct implicitly condones the unethical tactics that Valeska used" and invites other prosecutors to engage in similar "unsavory conduct." The court provided a copy of its opinion to the Alabama State Bar to review Valeska's conduct for possible disciplinary action.

STUDY: In Oklahoma, Race and Gender of Victim Significantly Affect Death Penalty

A new study of more than two decades of murders in Oklahoma has found that defendants charged with killing a white woman have odds of being sentenced to death in the Sooner State that are nearly ten times greater than if they had been charged with killing a man who is a racial minority. The study, published in the Fall 2017 issue of the Northwestern University Pritzker School of Law's Journal of Criminal Law and Criminology, examined more than 4,600 Oklahoma homicide cases over a 23-year period between January 1, 1990, and December 31, 2012 in which a suspect had been identified, including 153 cases in which a death sentence had been imposed. The researchers—research scientist Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp (pictured, left)—found "large disparities in the odds of a death sentence" that they said "correlate with the gender and the race/ethnicity of the victim." Among other findings, the study determined that there was "a strong correlation" between the race of the victim and the probability that the death penalty would be imposed, with cases involving white victims "significantly more likely to end with a death sentence than cases with nonwhite victims." Among all murders, cases with white victims were the most likely to result in death sentences (3.92% of cases), followed by killings of Latino victims (2.67%), black victims (1.87%), and Native-American victims (1.26%). Overall, white-victim cases were more than twice as likely as cases involving black victims or non-white victims as a whole to end in a death verdict and more than three times as likely to result in a death sentence as cases with Native-American victims. The study also found significant victim-gender disparities, with murders involving at least one female victim more likely to result in a death sentence than other cases. The combination of race and gender produced even more profound disparities in death-sentencing rates. The odds that a death sentence would be imposed were nearly 10 times greater (9.59 times) in cases with white female victims than in cases with minority male victims; 8.68 times greater in cases with minority female victims than in cases with minority male victims; and more than triple (3.22 times greater) in cases with white male victims than in cases with minority male victims. While the study found that the defendant’s race by itself did not correlate with a death sentence, the probability of a death sentence for a nonwhite defendant charged with killing a white victim (5.8%) was more than triple the probability of a death sentence for a white defendant charged with killing a non-white victim (1.8%). After spending more than a year studying Oklahoma's capital punishment practices—including a draft version of the researchers' study—the bipartisan Oklahoma Death Penalty Review Commission issued a report unanimously recommending that Oklahoma continue its moratorium on executions "until significant reforms are accomplished." Two African-American death-row prisoners, Julius Darius Jones and Tremane Wood, have argued based upon that draft of the study, that Oklahoma's death penalty unconstitutionally discriminates on the basis of race.

New Report Documents “Dramatic Rise” in Republican Support for Death-Penalty Repeal

"The death penalty is dying in the United States, and Republicans are contributing to its demise," concludes a new report, The Right Way, released on October 25 by the advocacy group Conservatives Concerned About the Death Penalty. The report traces "the dramatic rise in Republican sponsorship of bills to end the death penalty" and the trends that it says helped contribute to this rise. Based on this data, the report says "[m]ore Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it." The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bi-partisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, "ten times as many [who] sponsored repeal bills ... in 2000." It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty. In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican "red states." In Kansas, the state Republican Party "removed its death penalty support from the Party’s platform in 2014" in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly "forsak[ing] the death penalty," pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the new policy of position the National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws. Recent national polls confirm the report's observations. The October 2017 Gallup poll on the death penalty indicated that death-penalty support among Republicans fell by ten percentage points, from 82% to 72%, in the last year, and the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Right Way highlights the actions of five Republican state legislators' efforts to repeal capital punishment in predominantly Republican states, and addresses the substantive concerns that have given rise to Republican death-penalty opposition. "Plagued by wrongful convictions, high costs, and delays," the report says, "the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life." As renewed pushes to abolish the death penalty move forward in states like Utah and New Hampshire, the Gallup organization suggests that the actions of Republicans may be critical in determining the death penalty's future. It's analysis of this year's poll states: "Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future."

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