Racial Disparities in Federal Death Penalty Prosecutions 1988 – 1994

Racial minori­ties are being pros­e­cut­ed under fed­er­al death penal­ty law far beyond their pro­por­tion in the gen­er­al pop­u­la­tion or the pop­u­la­tion of crim­i­nal offend­ers. Analysis of pros­e­cu­tions under the fed­er­al death penal­ty pro­vi­sions of the Anti-Drug Abuse Act of 1988 [2] reveals that 89% of the defen­dants select­ed for cap­i­tal pros­e­cu­tion have been either African-American or Mexican-American. Moreover, the num­ber of pros­e­cu­tions under this Act has been increas­ing over the past two years with no decline in the racial dis­par­i­ties. All ten of the recent­ly approved fed­er­al cap­i­tal pros­e­cu­tions have been against black defen­dants. This pat­tern of inequal­i­ty adds to the mount­ing evi­dence that race con­tin­ues to play an unac­cept­able part in the appli­ca­tion of cap­i­tal pun­ish­ment in America today. It con­firms Justice Blackmun’s recent con­clu­sion that ​“the death penal­ty exper­i­ment has failed.”

Since the Supreme Court’s 1972 deci­sion in Furman v. Georgia,[3] the death penal­ty has been almost exclu­sive­ly a state pre­rog­a­tive. Congress has so far not adopt­ed the gen­er­al sen­tenc­ing pro­ce­dures that would rein­state the fed­er­al death penal­ty. No fed­er­al exe­cu­tions have been car­ried out since 1963 and, until very recent­ly, pros­e­cu­tions under fed­er­al death penal­ty law were rare. But that began to change over the past few years, and can be expect­ed to change dra­mat­i­cal­ly if the House adopts pend­ing leg­is­la­tion to restore gen­er­al­ly — and expand — the fed­er­al death penalty.

In 1988, President Reagan signed the Anti-Drug Abuse Act. This leg­is­la­tion includ­ed a pro­vi­sion, some­times referred to as the ​“drug king­pin” death penal­ty, which cre­at­ed an enforce­able fed­er­al death penal­ty for mur­ders com­mit­ted by those involved in cer­tain drug traf­fick­ing activ­i­ties. The death penal­ty pro­vi­sions were added to the ​“con­tin­u­ing crim­i­nal enter­prise” statute first enact­ed in 1984, 21 U.S.C. SS 848. The drug traf­fick­ing ​“enter­prise” can con­sist of as few as five indi­vid­u­als, and even a low-rank­ing ​“foot sol­dier” in the orga­ni­za­tion can be charged with the death penal­ty if involved in a killing.

As the first enforce­able fed­er­al death penal­ty adopt­ed after Furman, SS 848 offers a fore­warn­ing as to how a gen­er­al fed­er­al death penal­ty might be applied. This report, pre­pared with the assis­tance of the Death Penalty Information Center in Washington, D.C. and with case data from the Federal Death Penalty Resource Counsel Project, exam­ines the appli­ca­tion of SS 848.

Three-quar­ters of those con­vict­ed of par­tic­i­pat­ing in a drug enter­prise under the gen­er­al pro­vi­sions of SS 848 have been white and only about 24% of the defen­dants have been black. [4] However, of those cho­sen for death penal­ty pros­e­cu­tions under this sec­tion, just the oppo­site is true: 78% of the defen­dants have been black and only 11% of the defen­dants have been white. (See Fig. 1). Although the num­ber of homi­cide cas­es in the pool that the U.S. Attorneys are choos­ing from is not known (the Justice Department has not respond­ed to Congressional inquiries for that data), the almost exclu­sive selec­tion of minor­i­ty defen­dants for the death penal­ty, and the sharp con­trast between cap­i­tal and non-cap­i­tal pros­e­cu­tions under SS 848, indi­cate a degree of racial bias in the impo­si­tion of the fed­er­al death penal­ty that exceeds even pre-Furman patterns.

Federal reg­u­la­tions require that local U.S. Attorneys obtain the per­son­al writ­ten autho­riza­tion of the Attorney General of the United States before pro­ceed­ing with a cap­i­tal pros­e­cu­tion. So far, for­mer Attorneys General Thornburgh and Barr, and present Attorney General Reno have approved cap­i­tal pros­e­cu­tions against a total of 37 defen­dants under the 1988 ​“king­pin” law. Twenty-nine of the defen­dants have been black and 4 have been Hispanic. All ten of the defen­dants approved by Attorney General Reno for cap­i­tal pros­e­cu­tion have been black. Judging by the death row pop­u­la­tions of the states, no oth­er juris­dic­tion comes close to this near­ly 90% minor­i­ty pros­e­cu­tion rate.[5]

Staff Report by the Subcommittee on Civil and Constitutional Rights Committee on the Judiciary One Hundred Third Congress, Second Session March 1994 pre­pared with the assis­tance of the Death Penalty Information Center

The pace of these pros­e­cu­tions has been sub­stan­tial­ly increas­ing over the past two years. Although wide­ly tout­ed dur­ing the 1988 elec­tion year as a ​“tough” response to drug crime, there were only sev­en defen­dants pros­e­cut­ed under this Act in the first three years after its pas­sage and only one death sen­tence hand­ed down. However, in 1992 alone, cap­i­tal pros­e­cu­tions against four­teen defen­dants were announced and anoth­er five death sen­tences result­ed from these cas­es. Since January, 1993, six­teen more pros­e­cu­tions have been announced. [6] (See Fig. 2).

The under­ly­ing crimes for which these defen­dants are being pros­e­cut­ed are not excus­able because the offend­ers are mem­bers of minori­ties. But the sta­tis­tics raise the ques­tion of why these cas­es were cho­sen out of the large num­ber of drug-relat­ed homi­cides over the past five years. By way of com­par­i­son, the pro­por­tion of African-Americans admit­ted to fed­er­al prison for all crimes has remained fair­ly con­stant between 21% and 27% dur­ing the 1980s, while whites account­ed for approx­i­mate­ly 75% of new fed­er­al pris­on­ers. [7] Yet, when it comes to the fed­er­al death penal­ty, the scales dra­mat­i­cal­ly tip the other way.

The fed­er­al gov­ern­ment employed the death penal­ty for a vari­ety of crimes pri­or to the 1972 Furman deci­sion. But the racial break­down was also just the oppo­site from cur­rent death penal­ty pros­e­cu­tions. Between 1930 and 1972, 85% of those exe­cut­ed under fed­er­al law were white and 9% were black. The dra­mat­ic racial turn­around under the drug king­pin law clear­ly requires remedial action.

Although chal­lenged at a Congressional hear­ing to pro­vide an expla­na­tion for such racial dis­par­i­ties, and asked by the Chairman of this Subcommittee for data on poten­tial­ly cap­i­tal cas­es referred to Washington for approval by fed­er­al pros­e­cu­tors, the Justice Department has offered no response.[8]

It is worth not­ing that some of the death penal­ty pros­e­cu­tions under SS 848 have been against defen­dants who do not seem to fit the expect­ed ​“drug king­pin” pro­file. In a num­ber of cas­es, the U.S. Attorneys have sought the death penal­ty against young inner-city drug gang mem­bers and rel­a­tive­ly small-time drug traf­fick­ers. [9] In oth­er cas­es, the death penal­ty was returned against those direct­ly involved in a mur­der, while the boss­es who ordered the killings were giv­en less­er sen­tences. [10]

Throughout American his­to­ry, the death penal­ty has fall­en dis­pro­por­tion­ate­ly on racial minori­ties. For exam­ple, since 1930 near­ly 90% of those exe­cut­ed for the crime of rape in this coun­try were African-Americans.[11]Currently, about 50% of those on the nation’s death rows are from minor­i­ty pop­u­la­tions rep­re­sent­ing 20% of the country’s population.

In 1972, the United States Supreme Court over­turned exist­ing death penal­ty statutes in part because of the dan­ger that those being select­ed to die were cho­sen out of racial prej­u­dice. As the late Justice Douglas said in his con­cur­rence over­turn­ing the death penalty:

[T]he dis­cre­tion of judges and juries in impos­ing the death penal­ty enables the penal­ty to be selec­tive­ly applied, feed­ing prej­u­dices against the accused if he is poor and despised, and lack­ing polit­i­cal clout, or if he is a mem­ber of a sus­pect and unpop­u­lar minor­i­ty, and sav­ing those who, by social posi­tion, may be in a more pro­tect­ed posi­tion. [12]

Following the Furman deci­sion, leg­is­la­tures adopt­ed death sen­tenc­ing pro­ce­dures that were sup­posed to elim­i­nate the influ­ence of race from the death sen­tenc­ing process. However, evi­dence of racial dis­crim­i­na­tion in the appli­ca­tion of cap­i­tal pun­ish­ment con­tin­ues. Nearly 40% of those exe­cut­ed since 1976 have been black, even though blacks con­sti­tute only 12% of the pop­u­la­tion. And in almost every death penal­ty case, the race of the vic­tim is white. (See Fig. 3). Last year alone, 89% of the death sen­tences car­ried out involved white vic­tims, even though 50% of the homi­cides in this coun­try have black victims.[13] Of the 229 exe­cu­tions that have occurred since the death penal­ty was rein­stat­ed, only one has involved a white defen­dant for the mur­der of a black person.

Race of the vic­tim dis­crim­i­na­tion was sin­gled out by the U.S. General Accounting Office in its report ​“Death Penalty Sentencing” which con­clud­ed that studies showed:

[The] race of the vic­tim was found to influ­ence the like­li­hood of being charged with cap­i­tal mur­der or receiv­ing the death penal­ty, i.e., those who mur­dered whites were found more like­ly to be sen­tenced to death than those who mur­dered blacks. [14]

This record of racial injus­tice played a sig­nif­i­cant part in Justice Harry Blackmun’s recent deci­sion to oppose the death penal­ty in every case. ​“Even under the most sophis­ti­cat­ed death penal­ty statutes,” said Blackmun, ​“race con­tin­ues to play a major role in deter­min­ing who shall live and who shall die.” [15]

Race con­tin­ues to plague the appli­ca­tion of the death penal­ty in the United States. On the state lev­el, racial dis­par­i­ties are most obvi­ous in the pre­dom­i­nant selec­tion of cas­es involv­ing white vic­tims. On the fed­er­al lev­el, cas­es select­ed have almost exclu­sive­ly involved minority defendants.

Under our sys­tem, the fed­er­al gov­ern­ment has long assumed the role of pro­tect­ing against racial­ly biased appli­ca­tion of the law. But under the only active fed­er­al death penal­ty statute, the fed­er­al record of racial dis­par­i­ty has been even worse than that of the states. So far, the num­ber of cas­es is rel­a­tive­ly small com­pared to state cap­i­tal pros­e­cu­tions. However, the num­bers are increas­ing, and under leg­is­la­tion cur­rent­ly being con­sid­ered in Congress, the fed­er­al gov­ern­ment would play a much wider role in death penalty prosecutions.

Following enact­ment of the first mod­ern fed­er­al death penal­ty statute on November 18, 1988, 21 U.S.C. SS848(e)-(q) (the so-called ​“drug king­pin” mur­der pro­vi­sion), the Bush and Clinton Administrations have approved death penal­ty pros­e­cu­tions under SS 848 against 37 defen­dants. Of these, four defen­dants were white, four were Hispanic, and twen­ty-nine were black. All 10 of the defen­dants approved for cap­i­tal pros­e­cu­tion by Attorney General Reno, and all 15 defen­dants now await­ing fed­er­al death penal­ty tri­als or cur­rent­ly on tri­al, are African-American.

Federal Capital Cases Tried to Date

The fed­er­al death penal­ty cas­es brought to tri­al dur­ing 1989 – 1994 by the Bush and Clinton Administrations are listed below:

• A white Alabama mar­i­jua­na grow­er named Ronald Chandler, was sen­tenced to death for the mur­der for hire of a sub­or­di­nate in his drug ring. Chandler’s con­vic­tions and death sen­tence were affirmed by a pan­el of the Eleventh Circuit July 19, 1993; a peti­tion for writ of cer­tio­rari is now pend­ing before the United States Supreme Court. Claiming inno­cence, Chandler refused a pre­tri­al plea bar­gain offer for life with­out pos­si­bil­i­ty of parole. United States v. Chandler, 996 F.2^d 1073 (11^th Cir. 1993).
• Three of four young black inner-city gang mem­bers in Richmond, Virginia, were sen­tenced to death on February 16, 1993, for their roles in eleven crack-relat­ed mur­ders. United States v. Tipton et al., 3 – 92-CR68 (E.D. Va.). The tri­al of a fourth defen­dant, Vernon Thomas, was sev­ered. On April 23, 1993, moments before a sched­uled hear­ing on Mr. Thomas’s motion to bar the death penal­ty due to his men­tal retar­da­tion, the gov­ern­ment with­drew its request for the death penal­ty. Mr. Thomas was ulti­mate­ly con­vict­ed and sen­tenced to life imprisonment.
• A Hispanic drug dis­trib­u­tor was sen­tenced to death by a jury on August 2, 1993 in Brownsville, Texas, in con­nec­tion with the mur­ders of three oth­er drug traf­fick­ers in the Brownsville area. United States v. Juan Raul Garza, No. CR 93 – 0009 (S.D. Tex.). Attorney General Barr autho­rized the pros­e­cu­tion to seek the death penal­ty in December, 1992. Mr. Garza’s appeal is pend­ing before the U.S. Court of Appeals for the 5^th Circuit.
• Two Hispanic defen­dants in Texas were sen­tenced to life impris­on­ment and forty years, respec­tive­ly, for the mar­i­jua­na-relat­ed mur­der of a state police offi­cer after a joint tri­al. The sen­tenc­ing jury found no facts legal­ly war­rant­i­ng the death penal­ty. United States v. Reynaldo & Baldemar Villarreal No. 9:91CR4 (E.D. Tex. 1991), aff’d, 963 F.2^d 725 (5^th Cir.), cert. denied, 113 S.Ct. 353 (1992).
• Two black Chicago gang mem­bers received life sen­tences for cocaine-relat­ed mur­ders after sep­a­rate tri­als. The Government had offered one defen­dant, but not the oth­er, a plea bar­gain pri­or to tri­al. United States v. Alexander Cooper & Anthony Davis, No. 89-CR-0580 (N.D. ILL. 1991).
• A white Mafia con­tract killer received a life sen­tence from a Brooklyn, New York jury after being con­vict­ed of eight mur­ders, three of which qual­i­fied as cap­i­tal crimes under 21 U.S.C. SS 848. United States v. Pitera, 5 F.3^d 624 (2^d Cir. 1993).
• A young black New Jersey gang mem­ber com­mit­ted sui­cide dur­ing his fed­er­al cap­i­tal tri­al. United States v. Bilal Pretlow, No. 90-CR-238 (D.N.J.).
• One Hispanic and two white defen­dants were tried joint­ly in con­nec­tion with the drug-relat­ed kidnap/​murder of a Muskogee, Oklahoma auto deal­er­ship employ­ee. United States v. Hutching et al., No. CR-032‑S (E.D. Okl.). The two cap­i­tal­ly-charged ​“man­agers” of the drug enter­prise received life sen­tences from the jury, while the low­est-lev­el defen­dant, John McCullah (who, unlike the boss­es, had been present at the killing) was sen­tenced to death on March 23, 1993.

Federal Capital Prosecutions Not Yet Tried:

Capital pros­e­cu­tions ini­ti­at­ed since ear­ly 1992 which are still pend­ing (either as cap­i­tal or non­cap­i­tal cas­es) in fed­er­al dis­trict courts involve indictments charging:

The Federal Death Penalty Resource Counsel Project is aware of 7 cas­es, involv­ing 16 defen­dants, in which the death penal­ty is report­ed to have been autho­rized by Attorney General Reno or announced since she took office. All 16 defen­dants are African-American. Three of the cas­es have been brought in juris­dic­tions (New York, Michigan, and the District of Columbia) which do not have cap­i­tal pun­ish­ment statutes. The cases are:

• Two black New Orleans inner-city gang mem­bers, in con­nec­tion with an alleged­ly drug-relat­ed mur­der. United States v. Green & Brown, E.D. La. No. 92 – 46. On November 24, 1992, the Government dropped its request for the death penal­ty in this case.
• One black Tampa, Florida drug dis­trib­u­tor, for hav­ing alleged­ly ordered a mur­der in retal­i­a­tion for the theft of drugs. United States v. Mathias, (M.D. Fla. No. 91 – 301-CR-T-17(A)). Trial is set in this case for February 2, 1994.
• One black Atlanta drug dis­trib­u­tor in con­nec­tion with three mur­ders. United States v. Williams, No. 1:92-CR-142 (N.D.Ga.). No tri­al date is set as yet.
• Two black crack cocaine deal­ers in Macon, Georgia, in con­nec­tion with the mur­ders of two oth­er crack deal­ers. United States v. Tony Chatfield and Arleigh Carrington, (M.D. Ga. No. 92 – 82MAC-WDC). Attorney General Barr autho­rized this death pros­e­cu­tion in his last week in office. On December 6, 1993, the gov­ern­ment dropped its request for the death penal­ty against these two defendants.
• United States v. Reginald Brown et al., (E.D.Mich.Cr. No. 92 – 81127). This case report­ed­ly involved six death autho­riza­tions against mem­bers of a cocaine dis­tri­b­u­tion orga­ni­za­tion alleged to be respon­si­ble for a total of twelve mur­ders over a 4‑year peri­od. The ini­tial autho­riza­tion occurred dur­ing the Bush Administration, but the autho­riza­tions were not announced until June, 1993. Only three of the six defen­dants against whom the death penal­ty has been autho­rized are cur­rent­ly in cus­tody. One defen­dant, Terrance Brown, has been found dead, appar­ent­ly a homicide victim.
• United States v. Darryl Johnson, (W.D.N.Y. Cr. No. 92 – 159-C‑S), involv­ing two alleged cocaine-relat­ed killings by a Buffalo, New York group. Trial is not antic­i­pat­ed before the fall of 1994.
• United States v. Wayne Anthony Perry (D.C.D.C. No. 92-CR-474), an alleged hit­man for a D.C. cocaine dis­tri­b­u­tion ring; eight homi­cide counts. Trial is set for February 8, 1994.
• United States v. Michael Murray, (M.D.Pa. Cr. No. 1:CR-92 – 200), involves the killing of a Harrisburg, Pennsylvania drug deal­er by a gang head­ed by one Jonathan Bradley. DOJ report­ed­ly declined to approve the U.S. Attorney’s request to autho­rize the death penal­ty against Bradley, who alleged­ly ordered the killing, and against anoth­er par­tic­i­pant in the shoot­ing, Emmanuel S. Harrison.
• United States v. Edward Alexander Mack et al., (S.D. Fla. 93 – 0252-CR-Ungaro-Benages), involves two drug-relat­ed mur­ders in the course of a Miami drug traf­fick­ing oper­a­tion. Three defen­dants are fac­ing the death penal­ty in this case; tri­al is not antic­i­pat­ed until the lat­ter part of 1994. Attorney General Reno autho­rized this cap­i­tal pros­e­cu­tion in ear­ly January 1994.
• United States v. Jean Claude Oscar et al., (E.D.Va. 93 CR 131) involves three cap­i­tal­ly charged defen­dants and two crack-relat­ed mur­ders in Norfolk, Va. Attorney General Reno autho­rized this cap­i­tal pros­e­cu­tion in November 1993.
• United States v. Todd Moore, (E.D. Va. 1994), the pros­e­cu­tion of this black defen­dant in Norfolk, Va. was announced March 8, 1994.