Responding to the Georgia state and fed­er­al courts’ refusal to reverse a death sen­tence imposed on an African-American defen­dant by a jury taint­ed by racism, an ide­o­log­i­cal­ly diverse range of voic­es have called on the U.S. Supreme Court to inter­vene. Georgia death-row pris­on­er Keith Tharpe (pic­tured) was sen­tenced to death by a juror who lat­er said, ​“there are two types of black peo­ple: 1. Black folks and 2. N***rs,” and won­dered ​“if black peo­ple even have souls.” Tharpe, the juror wrote in a signed affi­davit, ​“wasn’t in the ​‘good’ black folks cat­e­go­ry in my book, [and] should get the elec­tric chair for what he did.” In September 2017, the Supreme Court stayed Tharpe’s exe­cu­tion just three hours before it was set to begin, and sub­se­quent­ly ordered the U.S. Court of Appeals for the Eleventh Circuit to recon­sid­er the case. In April 2018, the cir­cuit again denied Tharpe’s appeal. Now, as he seeks a new hear­ing before the Supreme Court, his case has gar­nered sup­port from the NAACP Legal Defense Fund, a Harvard Law Professor, three Catholic bish­ops, and a promi­nent Georgia Republican. They all raise con­cerns that Tharpe’s exe­cu­tion would under­mine con­fi­dence in the justice system.

In a New York Times op-ed, Harvard Law Professor Russell Kennedy wrote that Tharpe’s case car­ries a ​“stench of prej­u­dice” and that his exe­cu­tion would be a mis­car­riage of jus­tice. “[U]nique his­tor­i­cal, con­sti­tu­tion­al and insti­tu­tion­al con­cerns” should moti­vate the Court ​“to rec­ti­fy the racism that remains all too evi­dent in our admin­is­tra­tion of crim­i­nal jus­tice,” he said. Sam Spital, Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc., wrote in the National Law Journal that ​“overt racial bias in sen­tenc­ing harms not only the defen­dant sen­tenced to die but under­mines pub­lic con­fi­dence in the jus­tice sys­tem.” He crit­i­cized the low­er courts for invent­ing ​“inher­ent­ly incon­sis­tent … pro­ce­dur­al road­blocks” as a way to uphold Tharpe’s death sen­tence. Initially, the Eleventh Circuit denied Tharpe’s race dis­crim­i­na­tion claim say­ing he should have raised it soon­er, Spital said. But even after the Supreme Court direct­ed the court to recon­sid­er, the cir­cuit refused to address the issue claim­ing that the case allow­ing him to present evi­dence of the juror’s racist state­ments had not been decid­ed until long after Tharpe’s con­vic­tion and death sen­tence. Spital dis­agreed with the deci­sion, argu­ing that “[w]hen a per­son has pre­sent­ed com­pelling evi­dence that he was sen­tenced to death because of his race, no judge-made pro­ce­dur­al obsta­cles should pre­clude review of his claim on the merits.”

Three Catholic bish­ops called for the Supreme Court to vacate Tharpe’s death sen­tence ​“for our col­lec­tive dig­ni­ty.” In a joint op-ed for The Atlantic, Archbishop Wilton D. Gregory of Atlanta, Georgia, Bishop Frank J. Dewane of Venice, Florida, and Bishop Shelton J. Fabre of Houma-Thibodaux, Louisiana wrote that ​“part of our work as reli­gious lead­ers is to chal­lenge racism by remind­ing the pub­lic that we are all broth­ers and sis­ters, equal­ly made in the image of God.” Citing pol­i­cy state­ments com­mit­ting the church to the erad­i­ca­tion of racism and declar­ing the death penal­ty inad­mis­si­ble, the bish­ops wrote: ​“The U.S. Supreme Court must inter­vene … to ensure that fair­ness is pro­tect­ed and jus­tice is defend­ed — before it’s too late.” Additionally, David J. Burge, the for­mer Chairman of the Georgia 5th Congressional District Republican Party, wrote in Newsweek, ​“As a con­ser­v­a­tive, I strong­ly believe that the laws that gov­ern us must be fol­lowed and applied in a fair and con­sis­tent man­ner to all cit­i­zens. As such, it is obvi­ous to me that jurors who hold racial­ly biased beliefs can nev­er be allowed to judge a case in which their views might influ­ence their ver­dict.” Tharpe’s case, he wrote, ​“pow­er­ful­ly remind[s] me that the sys­tem is not fool­proof. When we know there is error, it is incum­bent on the courts to inter­vene and make it right. … The integri­ty of the entire process is pred­i­cat­ed on the assump­tion that all jurors eval­u­ate the case through an unbiased lens.”

(Randall Kennedy, The Stench of Prejudice in Keith Tharpe’s Death Sentence, New York Times, February 21, 2019; Samuel Spital, The US Supreme Court Should Stop the Execution of a Man Sentenced, in Part, Because He’s Black, National Law Journal, February 15, 2019; Wilton D. Gregory, Frank J. Dewane, and Shelton J. Fabre, Three Bishops Stand Against an Execution in Georgia, The Atlantic, February 17, 2019; David J. Burge, A JUROR WHO QUESTIONED IF BLACK MEN HAVE SOULS SENTENCED ONE TO DEATH. SCOTUS MUST STEP IN, Newsweek, February 16, 2019.) See Race and U.S. Supreme Court.

Citation Guide