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.

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