DPIC and Black History Month

During February DPIC posts info­graph­ics on race and the death penal­ty on our Facebook and Twitter pages.

View our 2019 Black History Month info­graph­ics col­lec­tion here.

View our 2018 Black History Month info­graph­ics col­lec­tion here.

View our 2017 Black History Month info­graph­ics collection below:

2017 Black History Month Infographic Series

Saying that ​“racial bias In the crim­i­nal jus­tice sys­tem, includ­ing the death penal­ty and its appli­ca­tion, is an undis­put­ed fact,” the National Hispanic Caucus of State Legislators in August 2016 adopt­ed a res­o­lu­tion sup­port­ing repeal of the death penalty.

The National Black Caucus of State Legislators fol­lowed suit in December 2016, adopt­ing its own res­o­lu­tion urg­ing repeal of cap­i­tal pun­ish­ment. In it, the NBCSL wrote: ​“From slav­ery to Jim Crow to the present day, the death penal­ty has long been a tool of injus­tice and discrimination.”

On August 1, 2016, The Movement for Black Lives pol­i­cy plat­form called for ​“an end to cap­i­tal pun­ish­ment,” which it described as ​“moral­ly repug­nant.” Asserting that “[t]he death penal­ty deval­ues Black lives,” the plat­form linked cap­i­tal pun­ish­ment with the his­to­ry of race-based lynch­ings in the United States.

Anthony Ray Hinton was exon­er­at­ed in April 2015 after spend­ing near­ly 30 years on Alabama’s death row. He was wrong­ly con­vict­ed of the 1985 mur­ders of two fast-food restau­rant man­agers based upon the false tes­ti­mo­ny of a state foren­sic exam­in­er that the bul­lets in the two mur­ders came from a gun found in Hinton’s house. 

The pros­e­cu­tor — who had a doc­u­ment­ed his­to­ry of racial bias — had said he could tell Mr. Hinton was guilty and ​“evil” just by look­ing at him. Mr. Hinton was arrest­ed after a vic­tim in a sim­i­lar crime iden­ti­fied him in a pho­to line­up, even though he had been work­ing in a locked ware­house 15 miles away when that crime was com­mit­ted and could not pos­si­bly have committed it. 

Ray Hinton told the CBS News show 60 Minutes of a chill­ing con­ver­sa­tion he had with a police lieu­tenant at the time of his arrest: “ ​‘You got a white man. They gonna say you shot him. Gonna have a white D.A. We gonna have a white judge. You gonna have a white jury more than like­ly.’ And he said, ​‘All of that spell con­vic­tion, con­vic­tion, con­vic­tion.’ I said, ​‘Well, does it mat­ter that I did­n’t do it?’ He said, ​‘Not to me.’ ” 

Mr. Hinton’s lawyer was igno­rant of the law and incor­rect­ly believed that fund­ing to hire a qual­i­fied firearms expert was not avail­able. Rather than seek­ing nec­es­sary fund­ing, he instead hired an expert he knew to be inad­e­quate. As a result, he failed to present any cred­i­ble evi­dence to rebut the state’s claim that the bul­lets had been fired from Mr. Hinton’s gun. 

In 2002, three top firearms exam­in­ers tes­ti­fied that the bul­lets could not be matched to that gun, and may not have come from a sin­gle gun at all. In 2014, the U.S. Supreme Court unan­i­mous­ly held that Mr. Hinton’s lawyer had pro­vid­ed sub­stan­dard rep­re­sen­ta­tion and returned the case to the state courts for fur­ther pro­ceed­ings. Prosecutors decid­ed not to retry him after the state’s new experts said they could not link the bul­lets to Mr. Hinton’s gun. 

Bryan Stevenson, Mr. Hinton’s lead attor­ney, said, ​“Race, pover­ty, inad­e­quate legal assis­tance, and pros­e­cu­to­r­i­al indif­fer­ence to inno­cence con­spired to cre­ate a text­book exam­ple of injus­tice. I can’t think of a case that more urgent­ly dra­ma­tizes the need for reform than what has hap­pened to Anthony Ray Hinton.” 

Between 1973 and February 6, 2017, 157 men and women who were wrong­ly con­vict­ed and sen­tenced to death have been exonerated.

82 of these wrong­ful­ly con­vict­ed death-row exonerees (52.2%) are black. 12 (7.6%) are Latino. One each are Thai or Jordanian. 

Taken togeth­er, 61.1% of U.S. death-row exonerees are peo­ple of color.

Civil rights lawyer and founder of the NAACP Legal Defense & Educational Fund Thurgood Marshall became the first African American to serve as a Justice of the United States Supreme Court. Justice Marshall believed that the death penal­ty con­sti­tut­ed cru­el and unusu­al pun­ish­ment in vio­la­tion of the Eighth Amendment because of its arbi­trary and discriminatory application.

In his opin­ion con­cur­ring in the Court’s 1972 deci­sion in Furman v. Georgia to declare exist­ing death penal­ty statutes uncon­sti­tu­tion­al, Justice Marshall wrote: ​“Assuming knowl­edge of all the facts present­ly avail­able regard­ing cap­i­tal pun­ish­ment, the aver­age cit­i­zen would, in my opin­ion, find it shock­ing to his con­science and sense of jus­tice. For this rea­son alone, cap­i­tal pun­ish­ment cannot stand.”

Marshall viewed the inde­pen­dence of the Courts as a vital com­po­nent of American democ­ra­cy. ​“In strik­ing down cap­i­tal pun­ish­ment,” he wrote. ​“this court does not malign our sys­tem of gov­ern­ment. On the con­trary, it pays homage to it.”

The racial and geo­graph­ic arbi­trari­ness of the fed­er­al death penal­ty is illus­trat­ed by the gross over­rep­re­sen­ta­tion of pris­on­ers of col­or in a small num­ber of juris­dic­tions that account for a dis­pro­por­tion­ate num­ber of fed­er­al death sentences nationwide.

By them­selves, Texas, Virginia, and the Eastern District of Missouri account for more than a third of all of the pris­on­ers on fed­er­al death row (21 of 62). But these juris­dic­tions do more than sim­ply over­pro­duce death sen­tences. They do so in a gross­ly dis­crim­i­na­to­ry man­ner. More than 90% of those con­demned in these fed­er­al juris­dic­tions are pris­on­ers of color. 

Federal dis­trict courts in Texas have con­demned 11 fed­er­al defen­dants to death. 9 of them (8 black, 1 Latino), or 82%, are pris­on­ers of col­or. All 7 defen­dants con­demned to die in Virginia’s fed­er­al courts are pris­on­ers of col­or (6 black, 1 Asian). And in the Eastern District of Missouri, which encom­pass­es sub­ur­ban St. Louis com­mu­ni­ties such as Ferguson, all three con­demned fed­er­al pris­on­ers are black.

These juris­dic­tions con­tribute great­ly to the over­all racial dis­pro­por­tion­al­i­ty of the U.S. fed­er­al death row. As of February 7, 2016, 62 pris­on­ers were on the U.S. fed­er­al death row. 60% were defen­dants of col­or. 44% of the con­demned pris­on­ers are black (27), the largest con­cen­tra­tion of any racial or eth­nic group. Another 11% (7 pris­on­ers) are Latino and a com­bined 3% are Asian or Native American (1 each). 42% of the fed­er­al death-row pris­on­ers are white (26).

Source: Federal Capital Habeas Project

Suggestions that the death penal­ty in the United States is dis­pro­por­tion­ate­ly applied on the basis of race are noth­ing new. The United States has a long his­to­ry of racial dis­crim­i­na­tion in the use of the death penal­ty, and for much of our his­to­ry death penal­ty laws were overtly discriminatory.

As Frederick Douglass, one of the most promi­nent African American advo­cates of the abo­li­tion of slav­ery observed on the occa­sion of America’s cel­e­bra­tion of Independence Day in 1852: ​“There are sev­en­ty-two crimes in the state of Virginia which, if com­mit­ted by a black man (no mat­ter how igno­rant he be), sub­ject him to the pun­ish­ment of death; while only two of these same crimes will sub­ject a white man to like punishment.”

On June 26, 2011, sev­en white teenagers ran­dom­ly tar­get­ed and attacked James Anderson on the streets of Jackson, Mississippi. They chose Anderson sim­ply because he was black. While shout­ing ​“White pow­er,” the teens took turns beat­ing Anderson, and then one of them killed him by dri­ving over him with a truck.

White suprema­cist hate mur­ders pose par­tic­u­lar­ly dif­fi­cult ques­tions for those con­cerned about racial dis­crim­i­na­tion in the use of the death penal­ty and the death penal­ty’s his­tor­i­cal rela­tion­ship to slav­ery and lynch­ing. These types of mur­ders are wide­ly regard­ed as among the most moral­ly rep­re­hen­si­ble, but crit­ics say the use of cap­i­tal pun­ish­ment in these cas­es may have the effect of legit­imiz­ing a sys­tem that has long been dis­crim­i­na­to­ri­ly applied against defen­dants of color.

Mr. Anderson’s fam­i­ly asked the Jackson District Attorney not to seek the death penal­ty for his killer. Mr. Anderson’s sis­ter, Barbara Anderson Young, wrote a let­ter to the D.A. on behalf of their moth­er and two broth­ers, say­ing that oppo­si­tion to the death penal­ty was ​“deeply root­ed in our reli­gious faith, a faith that was cen­tral in James’ life as well.” The let­ter con­tin­ued, ​“We also oppose the death penal­ty because it his­tor­i­cal­ly has been used in Mississippi and the South pri­mar­i­ly against peo­ple of col­or for killing whites. Executing James’ killers will not help bal­ance the scales. But spar­ing them may help to spark a dia­logue that one day will lead to the elim­i­na­tion of cap­i­tal pun­ish­ment.” Though old enough to face the death penal­ty, the teenaged ring­leader of the mur­der was sen­tenced to life in prison.

On September 21, 2011, Texas exe­cut­ed Lawrence Brewer, a white suprema­cist who chained James Byrd, Jr., an African-American man, to a truck and dragged him to death in Jasper in 1998. Some mem­bers of Mr. Byrd’s fam­i­ly also opposed the death penal­ty. Mr. Byrd’s mur­der helped spur the adop­tion of fed­er­al hate crimes leg­is­la­tion. Although pro­po­nents of the Matthew Shepard/​James Byrd Jr. Federal Hate Crimes Act inten­tion­al­ly exclud­ed the use of the death penal­ty as a pun­ish­ment for hate crimes, fed­er­al pros­e­cu­tors used it as a basis to seek the death penal­ty against Dylann Roof for the racial­ly moti­vat­ed mur­ders of nine black parish­ioners at an his­toric African-American church in Charleston, South Carolina. The NAACP Legal Defense & Educational Fund opposed the death penal­ty in Roof’s case say­ing it ​“would have the per­verse effect of jus­ti­fy­ing the rou­tine, racial­ly dis­crim­i­na­to­ry impo­si­tion of the death penal­ty on black peo­ple.” A poll by the University of South Carolina’s Institute for Public Service and Policy Research found that only 30.9% of black South Carolinians favored the death penal­ty for Roof, while 64.7% believed he should be sen­tenced to life without parole.

(See Christina Swarns, Director of Litigation, NAACP Legal Defense & Educational Fund, Op-Ed: Dylann Roof Shouldn’t Get the Death Penalty, The New York Times, Nov. 7, 2016; Monique L. Lyle & Robert W. Oldendick, One Year Later: Race Relations and the Emanuel 9 Shooting, Institute for Public Service and Policy Research, University of South Carolina, June 2016; DPIC, NEW VOICES: In Inter-racial Killing, Victim’s Family Asks District Attorney Not to Pursue Death Penalty, September 22, 2011.)

Duane Buck was sen­tenced to death in Harris County (Houston), Texas in 1997 after his own lawyers pre­sent­ed an expert wit­ness who tes­ti­fied that Mr. Buck was more like­ly to pose a future dan­ger to soci­ety because he is black. 

Juries in Texas may not impose the death penal­ty unless they find that a defen­dant pos­es a con­tin­u­ing threat to soci­ety. The pros­e­cu­tor at Buck’s sen­tenc­ing tri­al asked psy­chol­o­gist Walter Quijano, with­out any objec­tion by the defense: ​“The race fac­tor, black, increas­es the future dan­ger­ous­ness for var­i­ous com­pli­cat­ed rea­sons; is that cor­rect?” ​“Yes,” Quijano said. The pros­e­cu­tor stressed this tes­ti­mo­ny in his clos­ing argu­ment, again with­out objec­tion by the defense. 

Buck was one of sev­en cas­es in which Quijano told juries that defen­dants were more like­ly to com­mit future crimes if they were black or Hispanic. In 2000, then-Texas Attorney General John Cornyn (now a U.S. Senator) agreed that the sev­en cas­es had been taint­ed by improp­er tes­ti­mo­ny. ​“It is inap­pro­pri­ate to allow race to be con­sid­ered as a fac­tor in our crim­i­nal jus­tice sys­tem,” Cornyn said. ​“The peo­ple of Texas want and deserve a sys­tem that affords the same fair­ness to every­one.” The oth­er six death-row pris­on­ers received new sen­tenc­ing tri­als; only Duane Buck did not. 

The Texas state and fed­er­al courts have repeat­ed­ly denied relief to Mr. Buck on this issue. The United States Supreme Court agreed to review his case and heard argu­ment on October 5, 2016. A deci­sion is expected soon.

Racially dis­crim­i­na­to­ry sen­tenc­ing in cap­i­tal cas­es was noth­ing new in Harris County, Texas, when Duane Buck’s jury sen­tenced him to death in 1997. Instead, sta­tis­ti­cal evi­dence sug­gests that race dis­crim­i­na­tion was endem­ic in cap­i­tal sen­tenc­ing pro­ceed­ings in the coun­ty at that time.

A study by University of Maryland Professor Raymond Paternoster found that from 1992 – 1999, in cas­es sim­i­lar to Buck’s, the Harris County District Attorney’s Office sought the death penal­ty 3.5 times more often when the defen­dant was black than when the defen­dant was white. Professor Paternoster found that Harris County juries were twice as like­ly to impose death sen­tences on blacks in these cas­es as com­pared to white defendants. 

A 2012 study by University of Denver Professor Scott Phillips found sig­nif­i­cant racial and gen­der dis­par­i­ties in Harris County’s appli­ca­tion of the death penal­ty dur­ing the years 2001 to 2008. Prof. Phillips found that death sen­tences were imposed in cas­es involv­ing white vic­tims at 2.5 times the rate one would expect in a race-neu­tral sys­tem. The study found that when the vic­tim was both white and female, death sen­tences were imposed at 5 times the rate than if the sys­tem were blind to race and gender. 

More pris­on­ers sen­tenced to death in Harris County have been exe­cut­ed than from any oth­er coun­ty in the United States. However, Harris has expe­ri­enced a decline in new death sen­tences in recent years that par­al­lels the nation­wide decline in cap­i­tal sen­tenc­ing. Although the 10 new death sen­tences imposed in Harris County from 2010 – 2015 are more than were imposed in 99.5% of U.S. coun­ties, they are sig­nif­i­cant­ly few­er than the 53 new death sen­tences that were hand­ed down in Harris in 1998 – 2003 and the 16 from 2004 – 2009. No new death sen­tences were imposed in the coun­ty in 2016.

But at the same time that death sen­tences have decreased, the over­all com­po­si­tion of the coun­ty’s death row has become even more racial­ly dis­pro­por­tion­ate. Since December 2004, Harris County has imposed 18 new death sen­tences (this excludes resen­tenc­ing pro­ceed­ings involv­ing pris­on­ers already on death row). Every one of those sen­tences has been direct­ed at a defen­dant who is either black (15) or Latino (3).

Those death sen­tences includ­ed the wrong­ful con­vic­tion of Alfred Dwayne Brown, who was exon­er­at­ed in June of 2015, and the wrong­ful impo­si­tion of the death penal­ty upon Roosevelt Smith, Jr., who was lat­er found to be inel­i­gi­ble for the death penal­ty as a result of intellectual disability. 

Isaiah McCoy walks to free­dom after his exon­er­a­tion from Delaware’s death row in January 2017.

Mr. McCoy is the 157^th per­son exon­er­at­ed from death row in the United States, and the 82^nd African American. He is Delaware’s first death-row exon­er­a­tion, although there is sub­stan­tial evi­dence that for­mer death-row pris­on­er Jermaine Wright, who was released in 2016 after plead­ing no-con­test to less­er charges in his retri­al, is also innocent. 

Mr. McCoy was con­vict­ed and sen­tenced to death in 2012 for two drug-relat­ed mur­ders. No phys­i­cal evi­dence linked him to the mur­ders, and he was con­vict­ed based upon the con­tra­dic­to­ry tes­ti­mo­ny of two alleged accom­plish­es who were them­selves involved in the mur­der. At the time of tri­al, Delaware was one of three states that per­mit­ted judges to impose death after a non-unan­i­mous sen­tenc­ing rec­om­men­da­tion by the jury (the oth­ers were Florida and Alabama). His jury vot­ed 10 – 2 to rec­om­mend death, and the tri­al judge imposed that sen­tence. Data sug­gests that these non-una­nim­i­ty statutes may increase the risk of wrong­ful death sen­tences. 24 of the 26 death-row exon­er­a­tions in which the jury vote is known in these three states (92.3%) were cas­es in which jurors had reached non-unan­i­mous rec­om­men­da­tions for death or judges had over­rid­den jury rec­om­men­da­tions of life.

Mr. McCoy decid­ed to rep­re­sent him­self at tri­al when his lawyer — who had not inves­ti­gat­ed the case — informed him just before tri­al start­ed that he was going to tell the jury that McCoy had been present at the mur­der but had not com­mit­ted the kil­ing. The pros­e­cu­tor, Deputy Attorney General R. David Favata, chose to take advan­tage of McCoy’s deci­sion to rep­re­sent him­self by engag­ing in what the Delaware Supreme Court described as ​“per­va­sive unpro­fes­sion­al con­duct … that per­me­at­ed these pro­ceed­ings and com­pro­mised McCoy’s right of self-rep­re­sen­ta­tion.” The Court lat­er sus­pend­ed Favata from the prac­tice of law for his mis­con­duct. Among oth­er things, Favata belit­tled McCoy for choos­ing to rep­re­sent him­self; threat­ened to tell prison author­i­ties (false­ly) that McCoy was a snitch; made intim­i­dat­ing com­ments direct­ed at McCoy dur­ing a break in pro­ceed­ings, then lied to the judge about hav­ing made the com­ments; pre­vent­ed stand-by coun­sel from giv­ing McCoy advice unless McCoy first specif­i­cal­ly request­ed it; and improp­er­ly vouched for the cred­i­bil­i­ty of a key prosecution witness. 

The Delaware Supreme Court over­turned Mr. McCoy’s con­vic­tion in 2015. McCoy waived his right to a jury for his retri­al, and in a January 2017 bench tri­al in front of Kent County Superior Court Judge Robert B. Young was acquit­ted of all charges. Upon his release, McCoy said, ​“I just want to say to all those out there going through the same thing I’m going through ​‘keep faith, keep fight­ing. Two years ago, I was on death row. At 25, I was giv­en a death sen­tence – and I am today alive and well and kick­ing and a free man.” During a pod­cast inter­view with DPIC, he said: ​“A lot of these pros­e­cu­tors have built a cul­ture at their offices where they don’t care whether or not a per­son is guilty or inno­cent; their only goal is to win by any means nec­es­sary. … That is some­thing we must change in order for the scales of jus­tice to be even.”

Mr. McCoy was the sec­ond for­mer death-row pris­on­er in a year to be released in Delaware after obtain­ing a new tri­al for pros­e­cu­to­r­i­al mis­con­duct. In May 2014, Jermaine Wright won a new tri­al after 21 years on death row when pros­e­cu­tors and police with­held excul­pa­to­ry evi­dence about pos­si­ble alter­nate sus­pects in a case in which no foren­sic or eye­wit­ness evi­dence had linked Mr. Wright to the crime. He was released in September 2016 after plead­ing no con­test to less­er charges and being resen­tenced to time already served. Mr. Wright had pre­vi­ous­ly over­turned his death sen­tence, but had been resen­tenced to death. On both occa­sions, as in Mr. McCoy’s case, the judge imposed a death sen­tence even though the sen­tenc­ing jury’s sen­tenc­ing rec­om­men­da­tion had not been unanimous.

After the United States Supreme Court declared exist­ing death penal­ty statutes uncon­sti­tu­tion­al in Furman v. Georgia in 1972, the Georgia leg­is­la­ture act­ed swift­ly to autho­rize a new statute that autho­rized the death penal­ty for mur­der, rape, and rob­bery. Governor Jimmy Carter signed the death penal­ty bill into law in 1973. 

By the time he ran for President in 1976, Carter had changed his mind about the death penal­ty and has con­sis­tent­ly opposed it since. In a November 2013 inter­view with The Guardian, for­mer President Carter said it is ​“almost incon­ceiv­able … to imag­ine that a rich white man would be exe­cut­ed [in the United States] if he mur­dered a black per­son.” Carter said: 

“The only con­sis­ten­cy today is that the peo­ple who are exe­cut­ed are almost always poor, from a racial minor­i­ty or men­tal­ly defi­cient. In America today, if you have a good attor­ney you can avoid the death penal­ty; if you are white you can avoid it; if your vic­tim was a racial minor­i­ty you can avoid it. But if you are very poor or men­tal­ly defi­cient, or the vic­tim is white, that’s the way you get sen­tenced to death.”