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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.


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Race News and Developments: 2003 - 1998

Race Plays Powerful Role in Washington State Death Penalty Cases


Race plays a significant role in who receives the death penalty in Washington. Research compiled by the Washington Death Penalty Assistance Center, revealed that death notices have never been filed in a case with a white defendant and a black victim, while such notices have been filed in 42% of murder cases with a black defendant and a white victim. Of the 10 individuals currently on death row in Washington, nine cases involved a white victim and none involved a black victim. In addition, every juror that convicted and sentenced the black defendants was white. (Washington Death Penalty Assistance Center, May 2003)

Technicality Means No Review and Probable Execution


The U.S. Court of Appeals for the 4th Circuit has rejected an appeal filed on behalf of North Carolina death row inmate Kenneth Rouse. Without disputing the merits of his claim, the court ruled that it would not hear the case because the motion was filed one day after an appeal deadline established by a 1996 federal law. In its ruling, the court wrote that the fact that Rouse faces the death penalty is no reason to give leeway in meeting the federal deadline. Rouse's attorneys are requesting a new trial because a juror in Rouse's case failed to disclose that his own mother had been murdered and sexually assaulted. The attorneys note that the juror, who is white, also used a racial epithet to describe Rouse, who is black, and that the juror expressed racist attitudes. (The Herald Sun, August 11, 2003). The dissent in the case noted that the juror carefully crafted his responses to voir dire questions because he wanted to be on the jury that judged Rouse.

Purposeful Discrimination in Capital Sentencing


"Purposeful Discrimination in Capital Sentencing" by David V. Baker examines the issue of race and capital sentencing in the context of three U.S. Supreme Court death penalty decisions - Furman v. Georgia, Gregg v. Georgia, and McCleskey v. Kemp. After his review of practical strategies to improve the fairness of the death penalty process, Baker concludes that court efforts have failed to eliminate race as a strong predictor in death sentencing. (5 Journal of Law & Social Challenges 189 (2003)) See Studies.

Researchers Find Prejudice Shapes Support for Death Penalty


In "Why Do White Americans Support the Death Penalty?," American University researchers Joe Soss, Laura Langbein, and Alan Metelko examined whether racial attitudes play a role in white support for the death penalty. The researchers found that white support for the death penalty in the United States has strong ties to anti-black prejudice, and in some geographic areas racial prejudice emerges as the strongest predictor of white death penalty support. Soss, Joe, et al.: "Why Do White Americans Support the Death Penalty? "; 65 The Journal of Politics 397 (2003)

California Legislator Calls for Special Commission to Review Death Penalty

California Senator Gloria Romero of Los Angeles, who chairs the Select Committee on the California Correctional System, is calling for a special commission to study the state's death penalty. After a Senate hearing featuring more than a dozen witnesses, including prosecutors, defense lawyers, prison officials, relatives of murder victims, and former Illinois Governor George Ryan, Romero raised specific concerns about racial and geographic disparities in the imposition of the death penalty. She stated, "At a time when Gov. Davis is proposing that we build a state-of-the-art, $220 million death row, even though we have a $34-billion budget deficit, I think it is an appropriate moment to study (how the death penalty is working in California)." (Los Angeles Times, April 23, 2003)

Pennsylvania Supreme Court's Committee Calls for Moratorium


A report released by the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System recommends that Governor Ed Rendell and state lawmakers enact a moratorium on the death penalty to provide an opportunity to further review the impact of race in death penalty sentences. "Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty," the report states. The Committee, created in 1999, also recommended passage of a Racial Justice Act, statewide standards for prosecutorial discretion, and statewide standards for both trial and appellate lawyers in capital cases. (Associated Press, March 4, 2003) Read the Committee's report. DPIC has drawn key excerpts from the death penalty chapter of the Committee's report. Click here for Excerpts page.


Death Penalty Rarely Used in Cases Involving Hispanic Victims


Although Hispanics (of any race) represent approximately 12% of the U.S. population, a recent report by the Bureau of Justice Statistics (BJS) states that Hispanics are victims of homicide at a rate that is 47% larger than the general population. Despite this statistic, the death penalty is rarely used when an Hispanic is the victim in the underlying murder. According to the NAACP Legal Defense and Educational Fund, less than 4% of the executions since 1976 involved murders with Latino victims. Over 80% of the death penalty cases involved white victims. (See BJS, "Hispanic Victims of Violent Crime, 1993-2000" (April 2002)).


Racial Discrimination Results in New Trial for Philadelphia Death Row Inmate


A Pennsylvania judge overturned the conviction of William Basemore, saying the prosecutor engaged in a pattern of racial discrimination during jury selection. The prosecutor eliminated 19 potential jurors, all of whom were black. The judge found that there was "a conscious strategy to exclude" black jurors. The same prosecutor, Jack McMahon, had been videotaped in the 1980s instructing a group of young prosecutors on how to exclude certain types of black jurors from trials. (Associated Press, Dec. 20, 2001). Commonwealth v. Basemore.

Kentucky overwhelmingly passed a bill which would allow defendants in capital cases to use statistical evidence of racial discrimination to show that race influenced the decision to seek the death penalty. If the judge finds that race was a factor, the death penalty would be barred. (Herald-Leader, 3/31/98). The governor's signature makes Kentucky the first state to pass such a "Racial Justice Act." (text of bill). The U.S. House of Representatives has passed a similar bill on two occasions, but it has been defeated in the Senate. Kentucky also voted to give inmates a choice of lethal injection or the electric chair and became the latest state to adopt a sentence of life without parole. Those sentenced after March 31, 1998 will be executed by lethal injection


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Race News and Developments: 2004

Poll Finds Tepid Support for Death Penalty as State Sets Execution Date


As Maryland Circuit Court Judge Steven I. Platt signed a death warrant scheduling the execution of Heath W. Burch for the week of December 6, a Potomac Inc. poll of state residents revealed that only 53% support capital punishment. Burch has been on death row since 1996 and would be the first person since 1953 to be executed for a crime committed in Prince George's County. Experts predict that his execution would be met with resistance from county residents, 50% of whom oppose capital punishment according to the Potomac Inc. poll. Judge Platt also granted Burch a 30-day stay of execution to provide his attorneys with time to file an appeal that they state will be based on a University of Maryland study that showed death sentences are imposed more often when the victims are white. Burch, a black man, was convicted of murdering an elderly white couple. Earlier in 2004, Maryland carried out the execution of Steven Oken, the first person to be executed by the state since 1998. (The Washington Post, October 22, 2004) See Public Opinion.


California Bar Association Urges Death Penalty Moratorium


A group of 450 attorneys participating in the Conference of Delegates of the California Bar Association has urged a moratorium on the death penalty in California until the state reviews whether capital punishment laws are enforced fairly and uniformly. "If you make a mistake, it's not like you can go back and correct a mistake because the person is dead," said Los Angeles County Deputy District Attorney Danette Meyers, supporter of the measure and a member of the Bar Association that represents prosecutors, criminal defenders and civil attorneys from dozens of bar groups throughout the state. The group called on California lawmakers and Governor Arnold Schwarzeneggar to impose a two-year moratorium on executions and to create an independent committee focusing on race, the reliability of convictions and whether the condemned had adequate legal representation. It also requested an inquiry into the financial cost of capital punishment and whether capital punishment is imposed too often. Executions are rare in California even though it has the nation's largest death row of 640 inmates. One reason for the delay is that more than a quarter of those on California's death row have not been given a lawyer for their first and mandatory appeal to the state's Supreme Court. The state has carried out 10 executions since the death penalty resumed in 1976. (Associated Press, October 17, 2004) See Representation, Costs, and Innocence.


More Blacks Deprived of Vote Because of Felony Convictions


A new report by The Sentencing Project, "The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia," examines the racial effects of depriving citizens of voting rights because of criminal convictions. The report reveals sharp disparities in voting eligibility by race and neighborhood. Among the report's key findings are the following:

  • One out of every seven African American males in Atlanta is disenfranchised as a result of a felony conviction;
  • One-third of the black male disenfranchisement rate in Georgia is a result of drug offense convictions;
  • Black males in Atlanta are registered to vote at an 11% lower rate than other demographic groups, but more than two-thirds of this differential is a result of high rate of disenfranchisement.

The report also contains a series of recommendations for change in criminal justice policy and disenfranchisement practices that would close the racial gap in voter registration and result in greater electoral participation. ("The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia," The Sentencing Project, September 2004; Washington Post, Sept. 23, 2004) In many cases, disenfranchisement can also affect jury composition in capital cases. See Resources.


BJS Report Finds Murder Rate Unchanged


In the latest National Crime Victimization Survey, the Bureau of Justice Statistics reported that the U.S. murder rate for 2003 was about 5.6 per 100,000 persons, unchanged from 2001 and 2002. Of the victims of murder, approximately 49% were white and 49% were black. (DPIC note: While the report found that the race of victims is evenly split nationally, victims in death penalty cases are mostly white (about 81%)). In murder cases, 76% of the offenders were known to the victim, and 24% of offenders were strangers. Firearms were used in 71% of murders and homicides were mostly intraracial (victim and offender of same race). The most cited circumstance leading to murder was an argument (28%). Read the full report. (Bureau of Justice Statistics Criminal Victimization, 2003, (September 2004)). Even though the 2001-2003 murder rate remained steady, death sentences continued their five-year decline in 2003. See Deterrence.


New Resource: DePaul University's Race to Execution Symposium


Presentations at
University's symposium on Race and the Death Penalty were recently published in the universityÕs Law Review. National experts examined statistical evidence and attitudes regarding race discrimination in the capital punishment system. A keynote address was delivered by Bryan Stevenson, Director of the Equal Justice Initiative in Alabama, and former Governor George Ryan gave the closing remarks. To read DPIC's summary of the articles click here.

New Resource: Bureau of Justice Statistics Sourcebook


The Bureau of Justice Statistics' Sourcebook of Criminal Justice Statistics 2002 contains its latest catalog of data on crime, the administration of justice, and public attitudes toward criminal justice issues such as the death penalty. For example, a growing number of Americans support the sentence of life without parole over the death penalty. In 1985, a Gallup Poll found that 34% of those polled favored life in prison without parole. This latest edition of the Sourcebook shows that by 2001 the number of respondents favoring life without parole had climbed to 44% (and higher since then). The support for life without parole is even stronger among black respondents (73%), respondents holding college post-graduate degrees (62%), and those who identify themselves as Democrats (60%). The Sourcebook also revealed an increase in the number of Hispanic inmates on death row in the United States. With an increase recorded each year between 1996 and 2001, the population has grown from 8.8% to 11.2%. The Sourcebook is updated as new data becomes available and may be found online at https://www.albany.edu/sourcebook/. (Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics 2002-(published 2003; contains some 2003 data; cost $9)). See Life Without Parole and Resources.


New Resource: Law Review Examines Race and the Death Penalty


The Summer 2004 DePaul Law Review contains presentations and articles from the University's two-day "Race to Execution" Symposium, an event that featured remarks and presentations from some of the nation's most renowned death penalty experts. This law review examines the role that race has historically had and continues to play in our nation's death penalty debate. Among the articles are presentations examining the racial bias in capital sentencing, how implicit racial attitudes of capital litigators impact trials, race and the federal death penalty, and the politics associated with this problem. Former Illinois Governor George Ryan, human rights attorney Bryan Stevenson, researcher David Baldus, and federal death penalty attorney Kevin McNally are among those featured in the compilation. (53 DePaul Law Review 1401 (2004)) See Law Reviews.


New Resource: Juror's Stories of Death


In his new book "Jurors' Stories of Death: How America's Death Penalty Invests in Inequality," author Benjamin Fleury-Steiner draws on real-life accounts of white and black jurors in capital trials to discuss the effect of race on the sentencing process. Through his survey of the jurors' experiences, he reveals that race is often a factor in sentencing and that the U.S. justice system can foster an "us versus them" mentality among jurors serving in capital trials. Fleury-Steiner finds that the the jurors, who frequently view themselves as more law abiding and moral than the individual on trial, can have difficulty looking beyond that mindset as they examine complex mitigating evidence in determining the fate of often marginalized defendants. The book concludes that ending the death penalty is a crucial step toward eliminating the racism and classism that currently taints social relations in the U.S. Noted death penalty attorney Bryan Stevenson of Alabama remarked, "This illuminating and insightful examination of jury deliberations makes a terrific contribution to the study of capital punishment. Fleury-Steiner's synthesis of sociological, legal and theoretical concepts with vivid juror narratives and statistical data, thoughtfully animates and details how race and class consciousness continue to shape America's death penalty." (University of Michigan Press, 2004). See Resources.


Judge Accused of Assisting Prosecution in Capital Cases


The California Supreme Court is asking the state's attorney general's office to explain why Fred Freeman's death sentence should not be reversed on allegations that a now-deceased Superior Court Judge colluded with prosecutors to ensure a capital conviction by eliminating potential Jewish jurors. The Supreme Court issued the show cause order after Freeman's attorneys filed a claim stating that Freeman was denied a fair trial because Judge Stanley Golde allegedly told prosecutors to keep Jews off the jury because they would never vote to send someone to the gas chamber. Prosecutor John Quatman took Golde's advice and later acknowledged in a declaration that it was also "standard practice" at the time of Freeman's trial to exclude black women from death penalty juries. At the time of his death in 1998, Golde was believed to have handed down more death sentences that any other judge in his county and possibly the state. (New York Lawyer, July 30, 2004).


Federal Court Blocks Texas Death Sentence Over Racially Charged Testimony


The U.S. Court of Appeals for the 5th Circuit has blocked a Texas District Attorney's final attempt to restore the death sentence of Victor Hugo Saldano, who was removed from Texas's death row in 2000 because of the use of racially charged testimony at his trial. The U.S. Supreme Court ruled that former Texas Attorney General John Cornyn was right to dismiss Saldano's death sentence because it was based on state testimony encouraging racial bias. During the penalty phase of Saldano's 1996 trial, psychologist Walter Quijano told the jury that Saldano's ethnicity could be a factor in whether he posed a future danger to society, citing the over-representation of blacks and Hispanics in the prison system. The jury then returned a death sentence for Saldano. Following the trial, Cornyn said that the testimony about Saldano's ethnicity should not have been allowed, and he asserted his authority to remove him from death row. This is also the stance of current Attorney General Greg Abbott. "Because the use of race in Saldano's sentencing seriously undermined the fairness, integrity or public reputation of the judicial process, Texas confesses error and agrees that Saldano is entitled to a new sentencing hearing," wrote Cornyn to the Supreme Court as it considered the case. The case prompted Texas lawmakers to ban the use of racially charged testimony. The Texas Court of Criminal Appeals had upheld the death sentence and the Collin County District Attorney tried to challenge Cornyn's actions in federal court. (Houston Chronicle, March 25, 2004)

Study of Potential Death-Qualified Jurors Reveals Bias


In the latest edition of the journal Deviant Behavior, sociologist Robert Young of the University of Texas has reported that death penalty supporters, such as those who are qualified to sit on juries in capital cases, were about a third more likely to have prejudiced views of blacks. Young's evaluation of polling data also revealed that death penalty supporters are more likely to convict the defendant. When polled, they were nearly twice as likely to say it was worse to let the guilty go free than to convict an innocent defendant. "By allowing juries in capital cases to be stacked in favor of conviction, the courts have created a system in which certain defendants - especially those of African American descent - in essence must prove their innocence beyond a reasonable doubt," said Young, who analyzed data from the 1990 to 1996 General Social Survey - a leading barometer of social trends in the U.S. He notes that those two findings reinforce each other and make death penalty juries more conviction prone, particularly when the defendant is black. (Washington Post, March 21, 2004)

Death Penalty Study Examines Sentencing Rates, Executions, Race Statistics


The authors of a new study published in the Journal of Empirical Legal Studies (J. Blume, T. Eisenberg, & M. Wells, "Explaining Death Row's Population and Racial Composition," Vol. I, Issue 1, March 2004, at 165) concluded that Texas' reputation as the leading death penalty state in the U.S. is attributable more to its high number of executions and the large number of murders in the state, rather than to its sentencing rate. Despite leading the country by far in terms of number of executions, Texas is about average in death sentences when compared to its number of murders. Nevada and Oklahoma are the leading states with the most death sentences per 1,000 murders. With respect to race, the study found that the race of the victim in the underlying murder is crucial in deciding who is sentenced to death. Across a spectrum of states, a black person who murdered a white victim is two and a half times as likely to be sentenced to death than a white who murdered a white victim. (New York Times, February 14, 2004). Read the Study (PDF). See Resources and Executions.

Court Finds Racial Bias in Pennsylvania Jury Selection


Arnold Holloway, a Pennsylvania death row inmate who was convicted 18 years ago, was granted a new trial after a federal appeals court found that prosecutors improperly excluded blacks from the jury. The U.S. Court of Appeals for the Third Circuit said that an assistant district attorney in Holloway's case used 11 of his 12 peremptory strikes during jury selection to eliminate blacks. "The pattern here was certainly strong enough to suggest an intention of keeping blacks off the jury," said Circuit Judge Robert Cowen. Philadelphia prosecutors' jury-selection practices came under closer scrutiny in 1997 when a heated campaign for the city's district attorney's office resulted in the public release of a secret training video instructing rookie prosecutors to keep poor blacks off juries because they were less likely to convict. Since that time, there has been a string of at least five death row inmates granted new trials because of evidence that Philadelphia prosecutors used race bias in selecting jurors. (Associated Press, January 23, 2004) See DPIC's Report: The Death Penalty in Black and White.


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Race News and Developments: 2005

Maryland Race Study Author Finds Death Penalty Practices "Disturbing"

Professor Ray Paternoster of the Department of Criminology and Criminal Justice at the University of Maryland was the senior author of a 2003 state-commissioned review of the role that race and geography play in Maryland's death penalty practice. He recently wrote about the study's findings in the Baltimore Sun:


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