NEW RESOURCES: Death Qualification and Prejudice

Research on death qualification--the selection of jurors who are qualified to serve on a capital case because they are willing to sentence someone to death--has revealed additional characteristics among such jurors.  Professor Brooke Butler of the University of South Florida in Sarasota has studied such jurors and published her results in the journal of Behavioral Sciences and the Law. Her study, “Death qualification and prejudice: the effect of implicit racism, sexism, and homophobia on capital defendants' right to due process,” surveyed 200 juror candidates from the 12th Circuit in Bradenton, Florida.  In addition to the questions that measured their support for the death penalty and their death-qualification status, she studied their attitudes towards women, gays, and people of other races.  The results indicated that as death penalty support increased, participants exhibited more negative attitudes towards women, homosexuals, and people of other races.

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STUDIES: Racial Disparities in the Capital of Capital Punishment

A new study published in the Houston Law Review, “Racial Disparities in the Capital of Capital Punishment,” explores the relationship of race to death sentencing in Harris County (Houston), Texas. In the study, Prof. Scott Phillips of the University of Denver explores patterns involving the race of both victims and defendants, while controlling for other variables. Phillips concludes death sentences were more likely to be imposed in cases with white victims than in those with black victims, and that death sentences were more likely to be imposed on black defendants than on white defendants in the county.

With respect to the defendant bias, which has not appeared in some other race studies, Phillips found "The DA pursued death against black defendants and white defendants at the same rate, but controlling for confounders revealed the disparate treatment of black defendants. The apparent equal treatment is misleading because black defendants committed murders that were less “serious” along several dimensions. Despite the fact that the DA was considerably more likely to pursue death against black defendants, juries were slightly more likely to impose death against white defendants. Presumably, the jurors' behavior is a response to the DA's occasional overreaching against black defendants. The net effect is that juries attenuate, but do not eliminate, disparities between black and white defendants that originate in the DA's office."

(S. Phillips, “Racial Disparities in the Capital of Capital Punishment,” 45 Houston Law Review 807 (2008)). See Studies, Law Reviews, and Race.

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SUPREME COURT: Justice Stevens Questions Thoroughness of Review by Georgia Supreme Court

Supreme Court Justice John Paul Stevens took the occasion of the Court's denial of review to a death row defendant in Georgia to question the adequacy of the appeals process in that state. On October 20, the Supreme Court denied certiorari in Walker v. Georgia, an appeal from the Georgia Supreme Court, and Justice Stevens concurred in that denial. However, Justice Stevens said he found the lack of careful scrutiny by the lower court to be "particularly troubling," especially since the case involved a black defendant and a white victim. Justice Clarence Thomas also wrote separately in the case, sharply disagreeing with Justice Stevens, and maintaining that no proportionality review by the Georgia Supreme Court was constitutionally required.

Justice Stevens wrote:

I find this case, which involves a black defendant and a white victim, particularly troubling. . . Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. Its undertaking consisted of a single paragraph, only the final sentence of which considered whether imposition of the death penalty in this case was proportionate as compared to the sentences imposed for similar offenses.

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There have been 24 executions so far in 2008. Executions resumed on May 5 after the U.S. Supreme Court approved Kentucky's lethal injection process in Baze v. Rees. One hundred percent of the executions have been in the South, including 9 in Texas, 4 in Virginia, and 3 in Georgia. At least 12 cases have been granted stays of executions in the past two months, including Troy Davis, whose execution in Georgia was halted by the U.S. Supreme Court. As of orders issued on October 6, 2008, the Court has taken no further action in the Davis case.

Additional facts:

Race of Defendants executed:

White: 11 (46%)

Black: 10 (42%)

Latino: 3 (12%)

Race of Victims in the underlying murder:

White: 19 (58%)

Black: 11 (33%)

Latino/a: 2 (6%)

Asian: 1 (3%)

No white defendant has been executed in 2008 for the murder of only a black victim (one defendant was executed for the murder of 2 white victims and 1 black victim). Since the death penalty was reinstated in 1976, only about 15 white defendants have been executed for the murder of solely black victims. About 228 black defendants have been executed for the murder of white victims. In 2007, there were 42 executions, including 86% in the South (26 in Texas). See Executions, Race, and Arbitrariness.

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STUDIES: Race a Factor in Arkansas Death Sentences

A new study of the death penalty in Arkansas showed racial patterns in sentencing. University of Iowa law professor David Baldus’ study examined 124 murder cases filed in one district from 1990 to 2005. Even after adjusting for factors such as the defendant’s criminal history and circumstances of the crime, black people who killed white people were more likely than others to be charged with capital murder and be sentenced to death. “It suggests to us that there’s a real risk that race may have been a factor,” explained Baldus.

Michael Radelet, a sociology professor at the University of Colorado at Boulder who has conducted a dozen studies on the topic, said Baldus is considered a pioneer of research in the field. His discrimination study of more than 2,000 murder cases in Georgia in the 1970’s led to a challenge that reached the U.S. Supreme Court. This study mirrors research that has shown killers of white people are more likely than those who kill black people to be sentenced to death. Baldus stated one of the most telling aspects of the research was that in the district studied no white defendants or killers of black people received death sentences. “The disparities are not normally as stark as this,” said Baldus.

From the study's list 66 death-eligible cases, blacks were defendants in only 38 of the potential death penalty cases, but nine of the 10 defendants for whom prosecutors sought a death sentence were black. Similarly, whites were victims in only 35 of the potential death penalty cases, but they were the victims in seven of the 10 cases in which the death penalty was sought.

(A. Davis, “Study indicates pattern in sentences,” Arkansas Democrat-Gazette, September 8, 2008). See also Studies and Race.

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Victims' Families Petition Against Texas Man's Execution

On July 10, Carlton Akee Turner is scheduled to be put to death in Texas for the murder of his adoptive parents when he was 19 years old. But a majority of the victims’ relatives are speaking out against the execution. Victim Tonya Carlton's brother, Kelly Johnson, wrote in a petition to the Board of Pardons and Paroles, “I do not wish to see my sister’s only child executed. I believe in my heart that my sister would only have wanted Akee to receive the help that he needed to restore his mind to a sound state.” Tonya’s first cousin and close friend Krishell Colemen said, “I don’t think Carlton [the defendant] should be executed. I don’t want him to be executed. Now that I know more of the details that led to the murders, I realize that he needs help. Killing him is just another murder. Nothing is going to bring my cousin back. Killing him will just hurt our family again, the way Tonya and Carlton’s murders did.”

The clemency also cited Governor Rick Perry’s statement that Texas can “never forget the impact felt by crime victims” while reminding the Board that the "vast majority" of the victims’ family members don’t want to see the couple’s son executed. “Executions are held out as a talisman that will provide the victim with closure,” said the petition. “This belief serves in part as a rationale for executions. But, in Mr. Turner’s case, an ‘eye for an eye’ truly does leave a family blind, twice robbed of their own.”

The petition also pointed out that Turner was convicted by an all-white jury, with no black citizens even making it to the voir dire phase of selection. The petition argued, “The capital prosecution of an African American man by an all white jury from a jurisdiction [Dallas County] with such an extensive record of discrimination in exactly that arena should cause doubts in the first instance.”
(B. Sanders, "Sanders: Another Troubling Dallas Case," Star Telegram, July 6, 2008). See Victims and Race.


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Upcoming Georgia Execution Involves Racially Biased and Unprepared Defense Lawyer

On June 4, Georgia has scheduled the execution of Curtis Osborne. (UPDATE: Osborne was executed on June 4.) Osborne's own defense lawyer at trial was racially biased against him and failed to do the most basic investigation that might have saved his client's life. The attorney repeatedly referred to Osborne with a racial epithet, saying, "that little n____r deserves the chair."

At the time of the murder that sent Osborne to death row, he was suffering from mental problems and his family had a history of mental illness going back for 3 generations. However, Osborne's attorney failed to raise this issue.

Law enforcement officials and religious leaders who have come to know Curtis Osborne have noted his complete remorse for the crime and the dramatic changes in his life while on death row. His story is recounted in a video prepared by his current defense attorneys. (Posted May 28, 2008).

View the video with Windows Media Player. View the video in QuickTime.

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NEW RESOURCES: Study Finds Evidence of Race-of-Defendant Bias in Texas Death Penalty

A new study by Professor Scott Phillips of the Univeristy of Denver found that black defendants in Houston, Texas, are more likely to be sentenced to death than white defendants, even when other variables are accounted for. The research, to be published in a forthcoming edition of the Houston Law Review, looked at cases eligible for the death penalty in the county that is the source of the highest number of executions in Texas, which itself is responsible for more executions than any other state. The study, which looked at 504 defendants indicted for murder, also found that a person is more likely to be sentenced to death if they killed a white victim than if they killed a black victim, a finding consistent with over 20 race studies around the country. Race-of-defendant bias has not been shown as often in other studies.

Prof. Phillips found that when the severity and other factors of the crime are taken into account, prosecutorial disparities show up: "the odds of a death trial are 1.75 times higher against black defendants than white defendants." The odds that a black defendant would actually be sentenced to death were almost 1.5 times as high as for a white defendant.

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STUDIES: “Prosecutorial Discretion and Capital Punishment in Missouri”

A recent Arizona Legal Studies paper on murder cases in Missouri found both geographical and racial disparities in the application of the death penalty. “Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri,” by Katherine Barnes of Arizona University Law School, and David Sloss and Stephen Thaman of St. Louis Univeristy Law School, studied 1046 cases of intentional homicide in Missouri to determine geographical and racial effects in the rates at which prosecutors seek the death penalty. With respect to race, the researchers found that "defendants who kill white victims [were] sentenced to death more often than those who kill black victims." Regarding geographical differences, the study concluded, "The data show that prosecutorial decisions vary widely across counties."

The researchers found that at least 76% of the cases they studied were death-eligible, but prosecutors only sought death in 5% of the cases. Prosecutors in different counties exercise their discretion very differently, which leads to racial and significant geographical variations in capital sentencing across the state. The researchers stated:

For example, St. Louis City and Jackson County (Kansas City) are the two largest jurisdictions in Missouri in terms of the number of homicide prosecutions. Prosecutors in St. Louis City charged (first-degree murder) M1 in 85.4 percent of their cases. In contrast, prosecutors in Jackson County charged (first-degree murder) M1 in only 28.3 percent of their cases. Because cases charged as (second degree) M2 are not eligible for capital punishment, Jackson County prosecutors eliminated more than seventy percent of their cases from the class of death-eligible offenses by charging the cases as (second degree) M2 instead of (first degree) M1. In contrast, the initial charging decisions of St. Louis City prosecutors left the death penalty “on the table” in more than 85 percent of their cases.

The researchers concluded that "The preceding analysis suggests that the defendants who are sentenced to death in Missouri are not necessarily the most culpable, or those who commit the most serious crimes. Instead, the defendants who are sentenced to death are disproportionately those who commit their crimes in counties where prosecutors make aggressive use of capital punishment."  They recommend that Missouri further study its death penalty system so that the state can implement changes in the district attorney system to better guide prosecutors and to also reform, change, or abandon certain statutory aggravating factors.
(“Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri,” by Katherine Barnes, David Sloss and Stephen Thaman, Arizona Legal Studies Discussion Paper No. 08-03, March 2008). See Studies and Arbitrariness.


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After Two Supreme Court Reversals, Texas Man Sentenced to Life

Thomas Miller-El received a life sentence from a Texas judge after pleading guilty to a Dallas murder in exchange for the prosecution's agreement not to seek the death penalty. Miller-El had originally been sentenced to death in 1986. He raised an appeal asserting that potential black jurors had been improperly stopped from serving at his trial. The appeal was denied by the lower courts, but the U.S. Supreme Court ruled (8-1) in 2003 that he should have been granted additional review of his claim in the U.S. Court of Appeals for the Fifth Circuit (Miller-El v. Cockrell). The Fifth Circuit did review his bias claim but denied him any relief. The U.S. Supreme Court again reviewed his case and this time ruled (6-3) that blacks had been unconstitutionally eliminated from Miller-El's trial jury, and, hence, he was entitled to a new trial (Miller-El v. Dretke (2005)).

Miller-El, who is 56, also agreed not to appeal his case further. He will serve a life sentence for the murder plus 20 years for aggravated assault.

The U.S. Supreme Court referenced a Dallas Morning News study indicating that a high percentage of blacks were struck from jury service in Dallas County around the time of Miller-El's trial. There was also reference to an earlier prosecutor's manual that recommended excluding "Jews, Negroes, Dagos and Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." Although the manual was no longer in use, the defense argued that such philosophies continued to influence jury selection in the 1980s.

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