Poll Finds Tepid Support for Death Penalty as State Sets Execution Date

As Maryland Circuit Court Judge Steven I. Platt signed a death war­rant sched­ul­ing the exe­cu­tion of Heath W. Burch for the week of December 6, a Potomac Inc. poll of state res­i­dents revealed that only 53% sup­port cap­i­tal pun­ish­ment. Burch has been on death row since 1996 and would be the first per­son since 1953 to be exe­cut­ed for a crime com­mit­ted in Prince George’s County. Experts pre­dict that his exe­cu­tion would be met with resis­tance from coun­ty res­i­dents, 50% of whom oppose cap­i­tal pun­ish­ment accord­ing to the Potomac Inc. poll. Judge Platt also grant­ed Burch a 30-day stay of exe­cu­tion to pro­vide his attor­neys with time to file an appeal that they state will be based on a University of Maryland study that showed death sen­tences are imposed more often when the vic­tims are white. Burch, a black man, was con­vict­ed of mur­der­ing an elder­ly white cou­ple. Earlier in 2004, Maryland car­ried out the exe­cu­tion of Steven Oken, the first per­son to be exe­cut­ed by the state since 1998. (The Washington Post, October 22, 2004) See Public Opinion.

California Bar Association Urges Death Penalty Moratorium

A group of 450 attor­neys par­tic­i­pat­ing in the Conference of Delegates of the California Bar Association has urged a mora­to­ri­um on the death penal­ty in California until the state reviews whether cap­i­tal pun­ish­ment laws are enforced fair­ly and uni­form­ly. ​“If you make a mis­take, it’s not like you can go back and cor­rect a mis­take because the per­son is dead,” said Los Angeles County Deputy District Attorney Danette Meyers, sup­port­er of the mea­sure and a mem­ber of the Bar Association that rep­re­sents pros­e­cu­tors, crim­i­nal defend­ers and civ­il attor­neys from dozens of bar groups through­out the state. The group called on California law­mak­ers and Governor Arnold Schwarzenegger to impose a two-year mora­to­ri­um on exe­cu­tions and to cre­ate an inde­pen­dent com­mit­tee focus­ing on race, the reli­a­bil­i­ty of con­vic­tions and whether the con­demned had ade­quate legal rep­re­sen­ta­tion. It also request­ed an inquiry into the finan­cial cost of cap­i­tal pun­ish­ment and whether cap­i­tal pun­ish­ment is imposed too often. Executions are rare in California even though it has the nation’s largest death row of 640 inmates. One rea­son for the delay is that more than a quar­ter of those on California’s death row have not been giv­en a lawyer for their first and manda­to­ry appeal to the state’s Supreme Court. The state has car­ried out 10 exe­cu­tions since the death penal­ty resumed in 1976. (Associated Press, October 17, 2004) See Representation, Costs, and Innocence.

More Blacks Deprived of Vote Because of Felony Convictions


A new report by The Sentencing Project, ​“The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia,” exam­ines the racial effects of depriv­ing cit­i­zens of vot­ing rights because of crim­i­nal con­vic­tions. The report reveals sharp dis­par­i­ties in vot­ing eli­gi­bil­i­ty by race and neigh­bor­hood. Among the report’s key find­ings are the following:

One out of every sev­en African American males in Atlanta is dis­en­fran­chised as a result of a felony conviction;

One-third of the black male dis­en­fran­chise­ment rate in Georgia is a result of drug offense convictions;

Black males in Atlanta are reg­is­tered to vote at an 11% low­er rate than oth­er demo­graph­ic groups, but more than two-thirds of this dif­fer­en­tial is a result of high rate of disenfranchisement.

The report also con­tains a series of rec­om­men­da­tions for change in crim­i­nal jus­tice pol­i­cy and dis­en­fran­chise­ment prac­tices that would close the racial gap in vot­er reg­is­tra­tion and result in greater elec­toral par­tic­i­pa­tion. (“The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia,” The Sentencing Project, September 2004; Washington Post, Sept. 23, 2004) In many cas­es, dis­en­fran­chise­ment can also affect jury com­po­si­tion in cap­i­tal cas­es. See Resources.

BJS Report Finds Murder Rate Unchanged

In the lat­est National Crime Victimization Survey, the Bureau of Justice Statistics report­ed that the U.S. mur­der rate for 2003 was about 5.6 per 100,000 per­sons, unchanged from 2001 and 2002. Of the vic­tims of mur­der, approx­i­mate­ly 49% were white and 49% were black. (DPIC note: While the report found that the race of vic­tims is even­ly split nation­al­ly, vic­tims in death penal­ty cas­es are most­ly white (about 81%)). In mur­der cas­es, 76% of the offend­ers were known to the vic­tim, and 24% of offend­ers were strangers. Firearms were used in 71% of mur­ders and homi­cides were most­ly intrara­cial (vic­tim and offend­er of same race). The most cit­ed cir­cum­stance lead­ing to mur­der was an argu­ment (28%). Read the full report. (Bureau of Justice Statistics Criminal Victimization, 2003, (September 2004)). Even though the 2001 – 2003 mur­der rate remained steady, death sen­tences con­tin­ued their five-year decline in 2003. See Deterrence.

New Resource: DePaul University’s Race to Execution Symposium


Presentations at DePaul University’s sym­po­sium on Race and the Death Penalty were recent­ly pub­lished in the university’s Law Review. National experts exam­ined sta­tis­ti­cal evi­dence and atti­tudes regard­ing race dis­crim­i­na­tion in the cap­i­tal pun­ish­ment sys­tem. A keynote address was deliv­ered by Bryan Stevenson, Director of the Equal Justice Initiative in Alabama, and for­mer Governor George Ryan gave the closing remarks.

New Resource: Bureau of Justice Statistics Sourcebook

The Bureau of Justice Statistics’ Sourcebook of Criminal Justice Statistics 2002 con­tains its lat­est cat­a­log of data on crime, the admin­is­tra­tion of jus­tice, and pub­lic atti­tudes toward crim­i­nal jus­tice issues such as the death penal­ty. For exam­ple, a grow­ing num­ber of Americans sup­port the sen­tence of life with­out parole over the death penal­ty. In 1985, a Gallup Poll found that 34% of those polled favored life in prison with­out parole. This lat­est edi­tion of the Sourcebook shows that by 2001 the num­ber of respon­dents favor­ing life with­out parole had climbed to 44% (and high­er since then). The sup­port for life with­out parole is even stronger among black respon­dents (73%), respon­dents hold­ing col­lege post-grad­u­ate degrees (62%), and those who iden­ti­fy them­selves as Democrats (60%). The Sourcebook also revealed an increase in the num­ber of Hispanic inmates on death row in the United States. With an increase record­ed each year between 1996 and 2001, the pop­u­la­tion has grown from 8.8% to 11.2%. The Sourcebook is updat­ed as new data becomes avail­able and may be found online at https://​www​.albany​.edu/​s​o​u​r​c​e​book/. (Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics 2002-(published 2003; con­tains some 2003 data; cost $9)). See Life Without Parole and Resources.

New Resource: Law Review Examines Race and the Death Penalty

The Summer 2004 DePaul Law Review con­tains pre­sen­ta­tions and arti­cles from the University’s two-day ​“Race to Execution” Symposium, an event that fea­tured remarks and pre­sen­ta­tions from some of the nation’s most renowned death penal­ty experts. This law review exam­ines the role that race has his­tor­i­cal­ly had and con­tin­ues to play in our nation’s death penal­ty debate. Among the arti­cles are pre­sen­ta­tions exam­in­ing the racial bias in cap­i­tal sen­tenc­ing, how implic­it racial atti­tudes of cap­i­tal lit­i­ga­tors impact tri­als, race and the fed­er­al death penal­ty, and the pol­i­tics asso­ci­at­ed with this prob­lem. Former Illinois Governor George Ryan, human rights attor­ney Bryan Stevenson, researcher David Baldus, and fed­er­al death penal­ty attor­ney Kevin McNally are among those fea­tured in the com­pi­la­tion. (53 DePaul Law Review 1401 (2004))

New Resource: Juror’s Stories of Death

In his new book ​“Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality,” author Benjamin Fleury-Steiner draws on real-life accounts of white and black jurors in cap­i­tal tri­als to dis­cuss the effect of race on the sen­tenc­ing process. Through his sur­vey of the jurors’ expe­ri­ences, he reveals that race is often a fac­tor in sen­tenc­ing and that the U.S. jus­tice sys­tem can fos­ter an ​“us ver­sus them” men­tal­i­ty among jurors serv­ing in cap­i­tal tri­als. Fleury-Steiner finds that the the jurors, who fre­quent­ly view them­selves as more law abid­ing and moral than the indi­vid­ual on tri­al, can have dif­fi­cul­ty look­ing beyond that mind­set as they exam­ine com­plex mit­i­gat­ing evi­dence in deter­min­ing the fate of often mar­gin­al­ized defen­dants. The book con­cludes that end­ing the death penal­ty is a cru­cial step toward elim­i­nat­ing the racism and clas­sism that cur­rent­ly taints social rela­tions in the U.S. Noted death penal­ty attor­ney Bryan Stevenson of Alabama remarked, ​“This illu­mi­nat­ing and insight­ful exam­i­na­tion of jury delib­er­a­tions makes a ter­rif­ic con­tri­bu­tion to the study of cap­i­tal pun­ish­ment. Fleury-Steiner’s syn­the­sis of soci­o­log­i­cal, legal and the­o­ret­i­cal con­cepts with vivid juror nar­ra­tives and sta­tis­ti­cal data, thought­ful­ly ani­mates and details how race and class con­scious­ness con­tin­ue to shape America’s death penal­ty.” (University of Michigan Press, 2004).

Judge Accused of Assisting Prosecution in Capital Cases

The California Supreme Court is ask­ing the state’s attor­ney gen­er­al’s office to explain why Fred Freeman’s death sen­tence should not be reversed on alle­ga­tions that a now-deceased Superior Court Judge col­lud­ed with pros­e­cu­tors to ensure a cap­i­tal con­vic­tion by elim­i­nat­ing poten­tial Jewish jurors. The Supreme Court issued the show cause order after Freeman’s attor­neys filed a claim stat­ing that Freeman was denied a fair tri­al because Judge Stanley Golde alleged­ly told pros­e­cu­tors to keep Jews off the jury because they would nev­er vote to send some­one to the gas cham­ber. Prosecutor John Quatman took Golde’s advice and lat­er acknowl­edged in a dec­la­ra­tion that it was also ​“stan­dard prac­tice” at the time of Freeman’s tri­al to exclude black women from death penal­ty juries. At the time of his death in 1998, Golde was believed to have hand­ed down more death sen­tences that any oth­er judge in his coun­ty and pos­si­bly the state. (New York Lawyer, July 30, 2004).

Federal Court Blocks Texas Death Sentence Over Racially Charged Testimony


The U.S. Court of Appeals for the 5th Circuit has blocked a Texas District Attorney’s final attempt to restore the death sen­tence of Victor Hugo Saldano, who was removed from Texas’s death row in 2000 because of the use of racial­ly charged tes­ti­mo­ny at his tri­al. The U.S. Supreme Court ruled that for­mer Texas Attorney General John Cornyn was right to dis­miss Saldano’s death sen­tence because it was based on state tes­ti­mo­ny encour­ag­ing racial bias. During the penal­ty phase of Saldano’s 1996 tri­al, psy­chol­o­gist Walter Quijano told the jury that Saldano’s eth­nic­i­ty could be a fac­tor in whether he posed a future dan­ger to soci­ety, cit­ing the over-rep­re­sen­ta­tion of blacks and Hispanics in the prison sys­tem. The jury then returned a death sen­tence for Saldano. Following the tri­al, Cornyn said that the tes­ti­mo­ny about Saldano’s eth­nic­i­ty should not have been allowed, and he assert­ed his author­i­ty to remove him from death row. This is also the stance of cur­rent Attorney General Greg Abbott. ​“Because the use of race in Saldano’s sen­tenc­ing seri­ous­ly under­mined the fair­ness, integri­ty or pub­lic rep­u­ta­tion of the judi­cial process, Texas con­fess­es error and agrees that Saldano is enti­tled to a new sen­tenc­ing hear­ing,” wrote Cornyn to the Supreme Court as it con­sid­ered the case. The case prompt­ed Texas law­mak­ers to ban the use of racial­ly charged tes­ti­mo­ny. The Texas Court of Criminal Appeals had upheld the death sen­tence and the Collin County District Attorney tried to chal­lenge Cornyn’s actions in fed­er­al court. (Houston Chronicle, March 25, 2004)

Study of Potential Death-Qualified Jurors Reveals Bias

In the lat­est edi­tion of the jour­nal Deviant Behavior, soci­ol­o­gist Robert Young of the University of Texas has report­ed that death penal­ty sup­port­ers, such as those who are qual­i­fied to sit on juries in cap­i­tal cas­es, were about a third more like­ly to have prej­u­diced views of blacks. Young’s eval­u­a­tion of polling data also revealed that death penal­ty sup­port­ers are more like­ly to con­vict the defen­dant. When polled, they were near­ly twice as like­ly to say it was worse to let the guilty go free than to con­vict an inno­cent defen­dant. ​“By allow­ing juries in cap­i­tal cas­es to be stacked in favor of con­vic­tion, the courts have cre­at­ed a sys­tem in which cer­tain defen­dants — espe­cial­ly those of African American descent — in essence must prove their inno­cence beyond a rea­son­able doubt,” said Young, who ana­lyzed data from the 1990 to 1996 General Social Survey — a lead­ing barom­e­ter of social trends in the U.S. He notes that those two find­ings rein­force each oth­er and make death penal­ty juries more con­vic­tion prone, par­tic­u­lar­ly when the defen­dant is black. (Washington Post, March 21, 2004)

Death Penalty Study Examines Sentencing Rates, Executions, Race Statistics
The authors of a new study pub­lished in the Journal of Empirical Legal Studies (J. Blume, T. Eisenberg, & M. Wells, ​“Explaining Death Row’s Population and Racial Composition,” Vol. I, Issue 1, March 2004, at 165) con­clud­ed that Texas’ rep­u­ta­tion as the lead­ing death penal­ty state in the U.S. is attrib­ut­able more to its high num­ber of exe­cu­tions and the large num­ber of mur­ders in the state, rather than to its sen­tenc­ing rate. Despite lead­ing the coun­try by far in terms of num­ber of exe­cu­tions, Texas is about aver­age in death sen­tences when com­pared to its num­ber of mur­ders. Nevada and Oklahoma are the lead­ing states with the most death sen­tences per 1,000 mur­ders. With respect to race, the study found that the race of the vic­tim in the under­ly­ing mur­der is cru­cial in decid­ing who is sen­tenced to death. Across a spec­trum of states, a black per­son who mur­dered a white vic­tim is two and a half times as like­ly to be sen­tenced to death than a white who mur­dered a white vic­tim. (New York Times, February 14, 2004). Read the Study (PDF). See Executions.

Court Finds Racial Bias in Pennsylvania Jury Selection

Arnold Holloway, a Pennsylvania death row inmate who was con­vict­ed 18 years ago, was grant­ed a new tri­al after a fed­er­al appeals court found that pros­e­cu­tors improp­er­ly exclud­ed blacks from the jury. The U.S. Court of Appeals for the Third Circuit said that an assis­tant dis­trict attor­ney in Holloway’s case used 11 of his 12 peremp­to­ry strikes dur­ing jury selec­tion to elim­i­nate blacks. ​“The pat­tern here was cer­tain­ly strong enough to sug­gest an inten­tion of keep­ing blacks off the jury,” said Circuit Judge Robert Cowen. Philadelphia pros­e­cu­tors’ jury-selec­tion prac­tices came under clos­er scruti­ny in 1997 when a heat­ed cam­paign for the city’s dis­trict attor­ney’s office result­ed in the pub­lic release of a secret train­ing video instruct­ing rook­ie pros­e­cu­tors to keep poor blacks off juries because they were less like­ly to con­vict. Since that time, there has been a string of at least five death row inmates grant­ed new tri­als because of evi­dence that Philadelphia pros­e­cu­tors used race bias in select­ing jurors. (Associated Press, January 23, 2004) See DPIC’s Report: The Death Penalty in Black and White.