Article Considers “Frontier Justice” and the West's Legacy of Lynching
In his recent article, Reckoning with History: The legacy of lynching in the West, historian Adam Sowards challenges the view romanticized in American popular mythology that “frontier justice” was a necessary community response in “a violent frontier where the need for justice sometimes preceded an established legal system.” In fact, he says, although Westerners created an elaborate rhetoric of a “Western vigilante tradition” to differentiate their posse killings from lynchings in the South, Western lynchings – like their Southern counterparts – were “racialized, gendered, brutal and lawless” and “disproportionately targeted people of color.” Reviewing the work of artist Ken Gonzales-Day, who catalogued more than 350 lynchings between California’s admission to the Union in 1850 and 1935, when the last known lynching occurred, Sowards notes that two-thirds of the victims of lynchings whose race is known were people of color, primarily Mexican. Lynchings of more than 871 Mexican Americans have been documented across 13 Western and Southwestern states in the years after the Civil War, and historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920 by vigilantes, local law-enforcement officers, and Texas Rangers. The notion that vigilante killings “simply fulfilled a criminal justice function at a time when the state’s courts failed to execute their duty" is false, Sowards writes. “All lynch mobs are lawless and unjust, and they point to white supremacy — no matter what earlier Westerners might have insisted.” Lynching declined across America, he says, “when states — whether Western, Midwestern or Southern — instituted capital punishment efficiently and racialized the criminal justice system.”
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New Conservative Voices Criticize Death Penalty as an 'Inept, Biased and Corrupt' Big Government Policy
Calling the death penalty a wasteful "big government" policy that is "inept, biased, and corrupt," a libertarian think tank and a New Orleans columnist have joined the chorus of conservative voices calling for the end of the death penalty. In Conservative doesn't mean supporting death penalty, New Orleans Times-Picayune columnist Tim Morris (pictured) argues that being a conservative requires neither "an unyielding fealty to a party or person [or] simply finding the polar opposite of some liberal position," and that while he believes that "capital punishment can be morally justified," "our government has proven to be ... inept, biased and corrupt in carrying out that responsibility." Likewise, in a July 22, 2018 commentary, If You Hate Big Government, You Should Oppose the Death Penalty, published on the Foundation for Economic Education website, Patrick Hauf writes that "[f]rom fiscal irresponsibility to wrongful convictions to botched executions, the death penalty is merely another wasteful government effort." Hauf, too, criticizes what he sees as reflexive support for the death penalty among some conservatives. While many "pride themselves on their unapologetic use of the death penalty, its enactment," Hauf says, "like most government programs, is both inefficient and ineffective." Morris, whom the newspaper describes as an “independent thinker with a Christian worldview and a journalist’s sense of skepticism,” dismisses the notion that all conservatives must support the death penalty. As evidence that government cannot properly administer capital punishment, he says "too many innocent people are being sentenced to death" and notes that 82 percent of death-row cases in Louisiana from 1975-2015 ended with the conviction or sentence being reversed. In another op-ed, he cites findings from a University of North Carolina study that a black male in Louisiana is 30 times more likely to be sentenced to death if the victim was a white female than when the victim was a black male. After detailing the reasons conservative political strategist Richard Viguerie and Pulitzer prize winning conservative columnist George Will also oppose capital punishment, Morris sums up: “the death penalty is arbitrary, racially discriminatory, and doesn't deter crime. I don't see anything conservative about supporting an inept, biased, corrupt system." Hauf also tauts growing Republican resistance to the death penalty, citing a 2017 report by Conservatives Concerned About the Death Penalty that highlighted a dramatic rise in Republican sponsorship of bills to abolish capital punishment and the results of a Gallup poll that reported 10-percentage-point decrease in support for the death penalty among conservatives in 2017. He notes the ideological inconsistency between principled conservatism and the death penalty, saying capital punishment is "one issue where conservatives often give far too much power to the government." He writes, "many Republicans allow their 'tough on crime' mentality to overrule limited government ideals and innate skepticism of state overreach. This contradiction within the Republican platform, although rarely acknowledged, exposes a weakness in the party’s ideology. If Republicans pride themselves on their limited government philosophy, then why would they grant the government control over life and death?" There is, he concludes, "nothing 'small government' about capital punishment. ... It’s time for Republicans to kill capital punishment off for good."
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North Carolina Death-Row Prisoners Challenge Retroactive Repeal of Racial Justice Act
Four African-American death-row prisoners in North Carolina whose death sentences had been overturned for racial discrimination have challenged the constitutionality of subsequent state court rulings that reinstated their death sentences and then denied them a new hearing on their discrimination claims. The four—Marcus Robinson (pictured), Tilmon Golphin, Quintel Augustine, and Christina Walters—had overturned their death sentences in 2012 under the North Carolina Racial Justice Act (RJA), presenting evidence that a multi-decade systematic exclusion of African Americans from death-penalty juries in North Carolina had infected their cases with racial bias. However, the North Carolina Supreme Court vacated those rulings, saying state prosecutors deserved an opportunity to present additional evidence, and the North Carolina legislature repealed the RJA. The trial court then ruled that, because of the repeal, it could no longer hear the prisoners' cases. Backed by a broad coalition of civil rights groups and several former prosecutors, the prisoners filed briefs in the North Carolina Supreme Court on July 16, 2018 arguing that the lower court ruling violated numerous constitutional guarantees, including due process and the Double Jeopardy clauses of the state and federal constitutions. After nearly three weeks of testimony in Robinson’s case, which detailed state prosecutors’ use of jury strikes in 173 capital trials between 1990 and 2010, Superior Court Judge Gregory Weeks overturned Robinson’s death sentence, finding that the “evidence showed the persistent, pervasive, and distorting role of race in jury selection.” Reviewing expert testimony about prosecutors’ choices to accept or strike more than 7,400 jurors, Weeks determined that prosecutors had systematically excluded black jurors from serving in capital cases “with remarkable consistency across time and jurisdictions.” Based on the same statewide evidence, plus the jury strikes in their cases, Weeks concluded that the death sentences imposed on Golphin, Augustine, and Walters also should be overturned. Prosecutors then persuaded the North Carolina Supreme Court to vacate Weeks’s rulings and send the cases back to the trial court for more evidence. “Lo and behold we get back into Superior Court, and at that point, the position shifts, and it’s well wait a minute, the statute’s been repealed, the courthouse door has been shut, and you are out of luck,” explained Gretchen Engel, director of the Center for Death Penalty Litigation. The prisoners’ appeal drew support from numerous civil rights and law-reform organizations, including the NAACP Legal Defense and Educational Fund (LDF), the North Carolina NAACP, the National Association of Public Defenders, the North Carolina Association of Black Lawyers, the North Carolina Council of Churches, North Carolina Advocates for Justice, the ACLU Capital Punishment Project, and a group of former prosecutors. In a statement, LDF senior deputy director of litigation Jin Hee Lee said: “The continuing stain of racial discrimination not only invalidates the death sentences imposed on these defendants, but it also undermines public confidence in North Carolina’s judicial system as a whole.” Former Virginia Attorney General Mark Earley said, “Whatever one thinks of the death penalty, we should all agree that execution can never be an option when racial stereotypes are used to keep black citizens off capital juries. No civil right is more basic than this.”
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Texas Executes Another Defendant of Color Over Objection of Victim’s Family
Against the wishes of the victim's family and amidst charges that the rejection of his clemency application was rooted in racial bias, Texas executed Christopher Young (pictured) on July 17, 2018. Young—who had been drunk and high on drugs when he killed Hashmukh Patel during a failed robbery in 2004—had repeatedly expressed remorse for the murder and had been mentoring troubled youth in an effort to prevent them from repeating his mistakes. The victim's son, Mitesh Patel, had urged clemency for Young, saying that he didn't want Young's children to grow up without a father, and that Young could be a positive influence by continuing his mentorship activities. Mitesh Patel, who had an emotional visit with Young the day before the execution, said the meeting left him with "a sense of sadness." "I really do believe Chris Young today is not the person he was 14 years ago," Patel said. "It's really unfortunate that the [pardons] board didn't hear our request for clemency. I feel sadness for his family. They're going to be walking down the same path my family has been on the last 14 years." On July 13, the Texas Board of Pardons and Parole voted 6-0, with one abstention, to deny Young's clemency application. Young's attorneys then filed a civil-rights suit in federal court, seeking a stay of execution on the grounds that the board's decision had been racially biased. Young's lawyer, David Dow, said family members of the murder victim have asked the pardons board six times this century to commute the death sentence imposed on the person convicted of murdering their loved one. "[O]f those six," Dow said, "three are black, two are Hispanic and one is white. Only in the case of the white guy [Thomas Whitaker] did they vote to recommend commutation.” U.S. District Judge Keith Ellison denied Young's request for a stay, but expressed extreme displeasure about the constricted timeframe for judicial review and the state's lack of concern about the possibility of racial bias. The case, he said, "dramatizes much of what is most troubling about the procedures by which we execute criminal defendants." He continued, "In a rational world, the Court would be able to authorize discovery and sift through the evidence obtained thereby. ... Here, ... the time frame is designed to render impossible intelligent and dispassionate judicial review. Applicable principles of law seem nonexistent." "Those engaging in race discrimination seldom announce their motivations," Judge Ellison said, and the timeframe made it "well-nigh impossible" for Young to prove his claims. "Ideally," Ellison wrote, Texas "would be determined to show that racial considerations had not infected the clemency proceeding. ... [H]owever, the State is eager to proceed with [Young's] execution without either side having any opportunity to explore the [issue]." In his final statement, Young said "l want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going." The execution was the eighth in Texas and the thirteenth in the U.S. in 2018.
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New Podcast: Professor Carol Steiker on the History and Future of America’s Death Penalty
Harvard Law Professor Carol Steiker (pictured), co-author of the highly acclaimed book, Courting Death: The Supreme Court and Capital Punishment, joins DPIC’s Robin Konrad for a provocative discussion of the past and future of America’s death penalty. In the latest episode of Discussions with DPIC, Professor Steiker—who served as a clerk for Supreme Court Justice Thurgood Marshall—takes us inside the walls of the Court for insights on the justices’ approaches to capital-punishment jurisprudence and the impact of Justice Marshall’s legacy on the Court today. She describes her experience with death-penalty cases as a U.S. Supreme Court clerk, and talks about the recurring evolution of the justices’ views on the death penalty as they experience years of failed attempts to redress its systemic flaws. In putting the modern death penalty in context, Professor Steiker focuses particularly on the relationship between race and capital punishment. “Today’s death penalty,” she says, “is inextricably tied to a history of slavery, of lynching, of progressive anti-lynching support of the death penalty. Those are the waves of history that are still lapping at the shore of the present.” The legacy of that history, she says, continues to be felt in the overwhelmingly disproportional use of capital punishment by the states of the former Confederacy, as compared to the rest of the country, and the disparate pursuit and imposition of the death penalty in cases involving White victims. Steiker identifies systemic problems in today’s death penalty that she says could some day lead the U.S. Supreme Court to declare it unconstitutional, including the politicization of judges and prosecutors and the “abysmal” state of capital representation. When and if abolition occurs, she says, will depend ultimately on the composition of the Court.
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STUDY: Local Mississippi Prosecutors Struck Black Jurors at More than Four Times the Rate of Whites
A new study shows that the Mississippi District Attorney's office that has prosecuted Curtis Flowers for capital murder six times—striking almost all black jurors in each trial—has disproportionately excluded African Americans from jury service for more than a quarter century. Reviewing the exercise of discretionary jury strikes in 225 trials between 1992 and 2017, American Public Media Reports discovered that during the tenure of Mississippi's Fifth Circuit Court District Attorney Doug Evans (pictured) prosecutors have exercised peremptory strikes to exclude African Americans from jury service at nearly 4½ times the rate at which they struck white jurors. APM Reports collected and analyzed data on more than 6,700 jurors called for jury service in the the Fifth District. Its study—which was reviewed before its release by a statistics expert and two law professors who had conducted prior jury-strike studies—found that Fifth District prosecutors struck 50 percent of all eligible black jurors compared to only 11 percent of eligible whites. Looking at potentially race-neutral factors raised during juror questioning, APM Reports found that prosecutors were still far more likley to strike black jurors than similarly situated white jurors (click here to enlarge graph). Controlling for these factors, the study found that the odds prosecutors would strike a black juror were six times greater than the odds that they would strike a white juror. APM Reports prepared the study in connection with its acclaimed podcast series In the Dark, which this season focuses on the Flowers case. Evans' office has been scrutinized for alleged race-related abuses of powers during the course of Flowers' six trials for the murder of four furniture store employees. Flowers has consistently professed his innocence. In his first three trials, Flowers was convicted and sentenced to death by all-white or nearly all-white juries. In each of these cases, the state Supreme Court overturned the convictions and ordered new trials. Just before the second trial, Flowers' parents' house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, "If they let that n----- go, another house is going to burn." Jurors deadlocked in Flowers' fourth and fifth trials, split along racial lines. All the white jurors voted for death in both of those trials. Only one black juror served on the sixth jury, and Flowers was sentenced to death in that trial. Although it is unconstitutional to exclude jurors from service based on race, the practice is ubiquitous in many jurisdictions that heavily use the death penalty. Over the course of 332 criminal trials in CaddoParish, Louisiana in the decade from 2003-2012, prosecutors struck black jurors at more than triple the rate of other jurors, approximately the same disproportionate rate at which black jurors were struck in 35 cases resulting in death sentences in South Carolina in the fifteen years between 1997-2012. In 173 capital cases tried over a twenty-year period in North Carolina, and in more than 300 capital trials over more than two decades in Philadelphia, Pennsylvania, prosecutors struck black jurors twice as frequently as other jurors. Most recently, in Georgia, Johnny Gates, who was sentenced to death in Columbus, Georgia in 1977, has challenged his conviction with evidence that his prosecutors struck every black juror they could in the seven capital trials they prosecuted between 1976 and 1979, empaneling all-white juries in six of those cases.
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Federal Appeals Court Hears Argument in Case of Texas Death-Row Prisoner Who Gouged Out His Eyes
A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.]
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ANALYSIS: Research Supports Assertion that U.S. Death Penalty "Devalues Black Lives"
The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good.
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New Podcast: Columnist Nicholas Kristof on "The Framing of Kevin Cooper"
In his May 20 column in the Sunday New York Times, Pulitzer Prize winning columnist Nicholas Kristof (pictured, left) focused national attention on the troubling case of California death-row prisoner, Kevin Cooper (pictured, right) and the disturbing evidence suggesting that San Bernardino police planted blood and other evidence to frame him for murder. Kristof joined DPIC Executive Director Robert Dunham for a Discussions with DPIC podcast to talk about his recent column, Was Kevin Cooper Framed for Murder?, and how police came to focus on a 155-pound Black man as the sole suspect in a grizzly quadruple murder, despite physical and eyewitness evidence pointing to three white men, including one already convicted murderer, as the perpetrators. Kristof explained how an opinion by a federal judge led him to write about the case: "What really struck me about [Cooper's case] was that you had a number of federal judges who not only argued that there was doubt about his innocence, but simply argued that, look, he is innocent, he is framed by the sheriff's office. And one very well respected Ninth Circuit judge, William Fletcher, came out and said he is framed by the San Bernardino County Sheriff's Office, and wrote a hundred-page judicial opinion about that, and that just doesn't happen in the law." He says that his piece on Cooper, the longest column in New York Times history, was also inspired by his own failure, and that of the news media at large, to adequately cover the possible innocence of Texas prisoner Cameron Willingham, who was executed in 2004. Willingham's case garnered a great deal of media attention only after he was executed. "I think Kevin Cooper is innocent," Kristof said, and "I want to write while there's still time to affect the outcome." As he does in his column, Kristof describes the rampant irregularities in Cooper's case that led him to conclude that Cooper had been framed, but he also talks in the podcast about the broader systemic problems that lead to wrongful convictions, especially in cases involving defendants of color. Kristof pointed to the lack of accountability for official misconduct as one of most important systemic issues. "There have to be consequences for police or prosecutors when they engage in this kind of misconduct," he said. "Too often, there are no consequences. We understand that there have to be consequences for bank robbery or murder, but there also have to be consequences for police officers who perjure themselves or sheriff's deputies who plant evidence." Finally, he explains how Cooper's case is emblematic of other problems: "The reason I wrote about the Cooper case is not just because of the injustice, I believe, to one man, but more broadly, because it's a window into the way the criminal justice system is periodically just plain broken, especially with regard to defendants of color or indigent defendants in really sensational cases. Sometimes the system works and sometimes it doesn't, but it shouldn't be a game of lottery when people are arrested and charged with capital offenses."
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STUDIES: Death-Penalty Jury Selection “Whitewashes” Juries and is Biased Towards Death
As support for the death penalty has declined in America, the process of "death-qualification"—which screens potential jurors in death-penalty cases based upon their views about capital punishment—produces increasingly unrepresentative juries from which African Americans are disproportionately excluded and, according to a new study by researchers at the University of California, increasingly biases juries in favor of conviction and death sentences. Death-qualification, the researchers say, "systematically 'whitewashes' the capital eligible pool [and] leaves behind a subgroup [of jurors] that does not represent the views of its community." Professor Mona Lynch (pictured, l.) of University of California-Irvine's Department of Criminology, Law, and Society, and Professor Craig Haney (pictured, r.) of University of California-Santa Cruz's Department of Psychology conducted two surveys of jurors in Solano County, California—which has the highest concentration of African Americans in the state—18 months apart to examine how racial differences in death-penalty opinions affect the composition of capital juries. As support for the death penalty has declined in recent years, the gap between the views of Whites (and particularly White males) and the views of African Americans and women has grown, exacerbating what the authors call "tension between the constitutionally sanctioned practice of death-qualification and a capital defendant’s constitutional right to be tried by a representative and unbiased jury." The researchers asked respondents about their views on the death penalty, and about whether those views would interfere with their ability to apply the law in a death-penalty trial, which would make them legally excludable from a jury. They found that the death-qualification process excluded a far greater percentage of people who said they opposed the death penalty than said they supported it, and that the rate of exclusion was even more disproportionate for African Americans. And while nearly equal percentages of White men and women were excluded by the process, the women who were excluded were much more likely to oppose capital punishment. The death-qualification process, they said, also contributed to racially disparate use of discretionary jury strikes by the prosecution by providing a facially race-neutral reason for disproportionately excluding African-American jurors. When the researchers asked jurors about their attitudes towards potentially aggravating and mitigating evidence, they found that a majority of White jurors—and particularly White male jurors—disregarded most mitigating evidence that would be offered to spare a defendant's a life and that a significant minority of these jurors inappropriately viewed many of these mitigating factors as reasons to impose a death sentence. They also found that White respondents "were significantly more receptive to aggravating evidence and were more inclined to weigh these specific items in favor of a death sentence compared to African American respondents." The process, they said, "creat[es] a jury whose members are unusually hostile to mitigation," which may "functionally undermine" the fair consideration of a capital defendant's case in mitigation. "This risk," the authors wrote, "is particularly high in cases involving African American defendants, especially where white men dominate the jury." The overall result, they said, is that, "[i]n a county in California where support for and opposition to capital punishment are beginning to approach parity, death qualification still has the potential to produce jury pools that are significantly more likely to favor the death penalty."
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