STUDIES: Racial and Geographic Disparities in the Federal Death Penalty

A new study published in the Washington Law Review addresses the racial and geographical disparities in the implementation of the federal death penalty. The study, conducted by G. Ben Cohen, Counsel for the Capital Appeals Project in New Orleans, and Robert J. Smith, Counsel for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, concludes that the disparities in the federal death penalty may exist because federal cases do not use a county-level jury pool but instead employ a wider pool from the federal-district level, resulting in the dilution of minority representation in the jury pool. According to the authors, “Capital verdicts become separated from the moral judgments of the community when [there are] fewer minority group members in the jury pool.” They proposed utilizing a county-level jury pool as is done in state cases: “If federal capital juries come from the county where the offense occurred, then prosecutors are left to determine whether to seek the death penalty based on the relative federal interest in the crime (and not the prosecutorial interest to secure a death sentence by any means possible). This solution is also more democratic—the citizens most impacted by the effects of high crime, overly aggressive policing, or poor public policy are the decision-makers responsible for redressing those harms.”

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NEW RESOURCES: Hispanics and the Death Penalty

According to the latest figures from the Bureau of Justice Statistics, Hispanics represent a larger proportion of those on death row than in the past.  Hispanics constituted almost 20% of the new admissions to death row in 2009 (18 new inmates).  Half of the new Hispanic death row inmates were from California, bringing their total to 157 Hispanic inmates, the most in the country.  Hispanics now represent 13.5% of the U.S. death row population.  In 2000, they made up 11% of death row.  Of the executions carried out in 2009, 13% (7 out of 52, correcting earlier number) were of Hispanic inmates.  All of the executions of Hispanics occurred in the South.  In federal statistics, Hispanics are counted as an ethnic group, rather than as a racial group.

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First North Carolina Death Row Inmates File Appeal Under Racial Justice Act

Five men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system. These cases are the first to request application of North Carolina’s Racial Justice Act, which allows the use of statewide or regional statistical studies to challenge a death sentence because of racial bias. In all five cases, the victims in the underlying murder were white and the defendants were black.  Moreover, prosecutors struck eligible blacks from the juries in these cases at greater rates than whites. In some cases, prosecutors struck eligible black jurors while accepting similar white jurors. Ken Rose, staff attorney at the Center for Death Penalty Litigation (CDPL), said, “We would like to live and practice in a system where race does not matter. But the results show that white victims are valued more highly than black ones, and that black jurors are being denied their right to serve. This evidence of racial bias cannot be ignored.”

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STUDIES: Research Shows That Race of the Victim Matters in North Carolina Death Penalty

A recent study in North Carolina found that the odds of a defendant receiving a death sentence were three times higher if the person was convicted of killing a white person than if he had  killed a black person. The study, conducted by Professors Michael Radelet and Glenn Pierce, examined 15,281 homicides in the state between 1980 and 2007, which resulted in 368 death sentences. Even after accounting for additional factors, such as multiple victims or homicides accompanied with a rape, robbery or other felony, researchers found that race was still a significant predictor of who was sentenced to death.  The study will be published in the North Carolina Law Review. It is the first examination of the North Carolina death penalty since the state passed the Racial Justice Act in 2009. The law allows murder suspects and death row inmates to present statistical evidence of racial bias to ensure that the defendant’s or victim’s race does not play a key role in the defendant’s sentence.

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STUDIES: Racial Discrimination in Jury Selection Continues in Death Penalty Cases

  A recent study published by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Alabama, shows that the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South. The study, "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy," found that in Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and in some counties, 75% of black jury pool members have been struck in capital cases. In Jefferson Parish, Louisiana, an analysis by the Louisiana Capital Assistance Center found that blacks were struck from juries more than three times as often as whites between 1999 and 2007.  In North Carolina, at least 26 current death row inmates were sentenced by all-white juries.  According to Bryan Stevenson, Executive Director of the Equal Justice Initiative, "There's just this tolerance, there's indifference to excluding people on the basis of race, and prosecutors are doing it with impunity. Unless you're in the courtroom, unless you're a lawyer working on these issues, you're not going to know whether your local prosecutor consistently bars people of color."

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Justice Stevens as Legal Innovator

Below is an essay for our thirty-day series on John Paul Stevens by James Liebman, the Simon H. Rifkind Professor of Law at Columbia Law School.  Liebman was a clerk for Justice Stevens during the 1978 Term and has since argued several capital and habeas corpus cases before the Supreme Court.

As he prepares to retire from the Supreme Court, Justice Stevens is justly being hailed for his intellect, independence, leadership, and grace. I would add another encomium: innovative legal problem solver. I don’t mean someone who looks to the law to solve social problems. I mean a judge who looks to the law to solve its own problems – someone who believes deeply in the law’s integrity but instead of assuming the law is perfect, assumes it has a capacity for self-correction.

The meaning of the Eighth Amendment as applied to the death penalty is an example of a legal problem Justice Stevens has led the Court in trying to solve. The Eighth Amendment is problematic, of course, because it obliges judges to invalidate “cruel and unusual punishments” while providing so little evidence of its meaning that it tempts judges to enforce their own, not the law’s, values. Nor are there easy fixes, such as Justice Scalia’s idea that the provision only bans punishments not authorized by statute – as if “cruel and unusual” meant “cruel and illegal” and didn’t bear at all on whether, for example, Congress or a state legislature could prescribe death as a punishment for illegal immigration.

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Racial and Geographic Disparities in Ohio Executions

Over the past two years, Ohio has executed more inmates than any other state except Texas.  Since resuming executions in 1999, Ohio has executed 38 people, more than any other state outside of the South in that time period.  As in the South, race appears to play a significant role in who receives the death penalty.  In the Ohio cases resulting in an execution, 75% of the victims in the underlying murder were white.  Generally, in Ohio about 65% of murder victims are black (Ohio Office of Criminal Justice Services-2005), but those cases are not resulting in a similar percentage of executions.  Of the 57 victims in cases resulting in an execution, only 11 (19%) were black.  Moreover, none of the 38 executions in Ohio involved a white defendant who killed a black victim.  On the other hand, at least 7 black defendants have been executed for murdering a white victim.

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MULTIMEDIA: NPR Documentary Features Historical Coverage from Mississippi Execution

  On Friday, May 7, NPR's Radio Diaries will feature a half-hour documentary entitled, "Willie McGee and the Traveling Electric Chair." The documentary focuses on the life of Willie McGee who was executed in Mississippi during the Jim Crow era after being convicted by an all-white jury of raping a white woman. During that time in Mississippi, the state used a portable electric chair, which the state transported from county to county. According to NPR, it was not just the portable electric chair that made McGee's execution unusual, but the unprecedented live radio coverage that accompanied it. The documentary includes excerpts of the live coverage from McGee's execution, broadcast from outside the courthouse where the execution took place.

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STUDIES: Victims' Social Status Plays Influential Role in Death Cases

Scott Phillips, a sociology and criminology professor at the University of Denver, published a study last month in the Law & Society Review focusing on the imposition of death sentences in relation to the victim's social status. Phillips studied capital cases in Harris County (Houston), Texas, between 1992 and 1999 and found that the social status of the victim in the underlying murder had a significant influence on whether the death penalty would be sought and imposed on the defendant. In examining 504 cases, Phillips found that defendants are six times more likely to receive a death sentence if they kill the highest status victims (whites or Hispanics who have college degrees, are married, and have no criminal record), compared to those defendants who kill the lowest status victims (black or Asian victims who were single, with a prior criminal record, and no college degree).

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NEW RESOURCES: Death Row USA, Fall 2009

The NAACP Legal Defense and Educational Fund recently released its Fall 2009 edition of Death Row USA, a report detailing death row populations across the United States. According to the report, California, Florida and Texas continue to lead the nation in the number of death row inmates, with California (694) having a death row population almost twice as large as either Florida (395) or Texas (339). In addition, while Florida's and Texas' death row populations have declined in the last decade, California's population has grown steadily, from 551 inmates in 1999 to 694 in 2009.  California has not had an execution since 2006.  Overall, the country's death row population decreased since Death Row USA's report of July 1, 2009--from 3,279 to 3,263 as of Oct. 1.  View the full report here.

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