How race impacts death penalty application in the United States

Death Penalty & Race in America

Death Penalty: How Does Race Impact its Application?

The death penalty and the race / ethnicity of those who are actually put to death - and those on death row today - have a long and unfortunate history of linkage, and the issues spawned therein have generated countless debates, research studies, and court decisions. The built-in anti-African-American bias that has existed in the capital punishment milieu for years has many facets and many unfortunate realities. What's more, the U.S. criminal justice system that is institutionally prejudiced against people of color is flawed to the point that, on a regular basis, men on death row are being dismissed from incarceration because, upon deeper investigation, they were innocent to begin with. The subject of this paper is how race impacts capital punishment, and how - and why - capital punishment is powered by a system of justice that, in the view of many, is heavily stacked against people of color.

INTRODUCTION:

On December 30, 1970, Arkansas governor Winthrop Rockefeller commuted the death sentences of 15 men who were on death row, awaiting their executions; the governor ordered that the 15 be sentenced to life imprisonment.

Ostensibly, Rockefeller was acting on his personal moral convictions against taking the life of another person; "What earthly mortal has the omnipotence to say who among us shall live and who shall die?" (The New York Times, 1970) he asked. "I do not," he continued, adding that he could not "turn my back on life-long Christian teachings and beliefs... [and] let history run out its course on a fallible and failing theory of punitive justice."

But did the fact that 11 of the 15 men on death row in Arkansas were African-American have anything to do with his decision? "I'm not going to philosophize on that," he answered. "It's fact."

What also is fact is that from the years 1930 to 1967, blacks "never made up more than 11.1% of the population" in the U.S., and never more than 24% in the South (Wicker, 1975). But though blacks were only 11.1% of the U.S. population, 48.8% of the men executed in that time frame were black, "and 67.5% of those put to death in the South were black."

Tom Wicker, writing in The New York Times in May, 1975, went on to point out that "even reprieve is discriminatory; in Pennsylvania, from 1914 to 1958, three times more white than black murderers had death sentences commuted."

Fast-forward to 2006: the U.S. Department of Justice (DOJ) Bureau of Justice Statistics ("Capital Punishment Statistics") reports that in 2005, sixty individuals were executed in sixteen different states, including "...19 in Texas; 5 each in Indiana, Missouri, and North Carolina; 4 each in Ohio, Alabama and Oklahoma; 3 each in Georgia, and south Carolina; 2 in California; and 1 each in Connecticut, Arkansas, Delaware, Florida, Maryland, and Mississippi" (www.ojp.usdog.gov/bjs/cp.htm).

Of the 60 persons executed in 2005, according to DOJ, 41 were white and 19 were black. And of those on death row in 2004, already sentenced to die and awaiting their executions, 1,850 were white, and 1,390 were black, according to the DOJ data. To give an indication of the rise in numbers of prisoners condemned to death over the past 38 years, the number of blacks on death row in 1968 was 271, and the number of whites on death row in 1968 was 243, the DOJ reports.

In 2003, the DOJ reports, there were 38 states with capital punishment laws and 65 persons were executed; of those, 41 were white, 20 black, one Native American and three Hispanics. Of those 38 states embracing the death penalty in 2003, six changed their statutes "to exclude the mentally retarded from capital sentencing or execution," according to the DOJ.

Meanwhile, the American Civil Liberties Union (www.aclu.org,2003) statistics show that in 2003, death row in U.S. military prisons was comprised of 86% minorities; 80% of death row inmates in Colorado were minority; 72% sentences to death in Louisiana and 70% in Pennsylvania were minorities. The ACLU also reports (www.aclu.org,2005) that since 1976, Texas has executed by far the most individuals, 338; Virginia is next with 94, followed by Florida with 59 executions.

LITERATURE REVIEW:

In "Death By Discretion: Who Decides Who Lives and Dies in the United States of America" (American Journal of Criminal Law), the author asserts that "approximately thirty-four percent of people executed in the United States since 1976 have been black" (Adams, 2005). Thirty-four percent doesn't sound too unbalanced until one is confronted with the fact that African-Americans make up about 12% of the U.S. population. Adams goes on to point out that "seventy-nine percent of victims for whom alleged defendants have been executed have been white, despite [Caucasians] comprising only fifty percent of all those murdered."

And, Adams continues, of the 221 people "executed for interracial murders, 189 - ninety-four percent - have been black." Is there a pattern of blatant racial bias reflected in these data? Adams insists that "racism...pervades America's criminal justice system," and she wonders, "How is it that racism, as one of the most deplorable features of contemporary society, is able to establish a position in the purported beacon of objectivity and neutrality that is the law?" In her research article, Adams argues that since the death penalty was "reinvented" (Furman v. Georgia in 1972), the "arbitrariness and caprice" of the "pre-Furman" era is back.

And, moreover, Adams insists that the "discretionary use of the death penalty" by prosecutors at the state and federal level plays the "single greatest role in introducing discriminatory societal subjectivity into the ostensibly objective decision to impose a death sentence." Taking that assertion further, Adams writes that it can be "unequivocally be stated" that the death penalty is "more likely to be sought and imposed for an offender if the victim was white."

Adams draws that conclusion based on a 1998 research study by David Baldus & George Woodworth ("Race Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent findings from Philadelphia"), in which it was revealed that "the probability of receiving a death sentence is 3.9 times greater if the defendant is black."

This finding is "dramatic," Adams observes, given that Philadelphia is well outside the deep South; also known as the "notorious 'Death Belt'" of the United States, the deep South (Texas, Florida, Louisiana, Georgia, Virginia, Alabama, Mississippi, North Carolina and South Carolina) accounts for "ninety percent of all executions carried out since 1976," the article explains. But returning to the issue of prosecutors, Adams finds it "difficult to ignore" when reviewing the racial dynamics of capital punishment, that "97.5% of total prosecutors in America's death penalty states are white."

Moreover, in eighteen of the thirty-eight states that have capital punishment, "one hundred percent of those in a position to make 'quasi-judicial decisions' as to whether a person may be deserving of a death sentence are white," Adams continues.

An objective question in response to that last paragraph might be, "Well, just because prosecutors and others charged with making decisions about death sentence applicability are overwhelmingly Caucasian, why is there an assumption of bias against people of color?" Adams writes that "a white prosecutor may - consciously or subconsciously - perceive a crime to be more 'outrageously or wantonly vile, horrible, or inhuman' if it is alleged to have been committed against a white victim," and if the community's outrage and corresponding "desire for vengeance" is "palpable." The fact that district attorneys (DAs) are elected, not appointed, is entirely germane to this discussion. When the public is outraged over a crime that involves racial dynamics, the DA most often will pursue the toughest possible penalties.

Adams notes that jury selection "provides a second opportunity" for prosecutors to flex their political muscles; indeed, if potential jurors are found to be "consciously opposed to the death penalty" they may be excluded from sitting on a capital trial. Also, beyond the just-mentioned reasons for disqualifying potential jurors, the DAs (and defense attorneys) have a "preemptory strike" option - for which no reason need be given. And albeit "preemptory strikes" based "solely on the basis of race" are unconstitutional, there are ways around being caught red-handed showing bias to blacks who are potential jurors.

For example, Adams mentions the Jefferson Parish in Louisiana; in 390 jury trials, the DA used "preemptory strikes" to block blacks from juries "at more than three times the rate it does to exclude whites." And in Georgia's Chattahoochee Judicial Circuit Court, prosecutors have played the "preemptory strike" card eighty-three percent of the time to dump blacks from juries - albeit blacks make up just 34% of the population in that region of Georgia.

In an article titled "Minority Threat and Punishment: A Cross-National Analysis" (Justice Quarterly), the authors suggest that understanding "...why we carry out punitive crime control practices" is a vital first step in the building of justice systems "that are both just and equitable."

This article puts forward the notion that when analyzing the "...relationships between minority groups and mainstream populations," the issue of whether the use of "formal control is applied fairly and consistently between these different groups" is a pivotal place to begin (Ruddell, et al., 2004). It is pivotal because "injustice" not only can have "a corrosive effect" on the perception of the fairness (or unfairness) of the criminal justice system; it may actually "contribute to increased crime."

The rationale behind Ruddell's study is partly sociological and partly philosophical: when ethnic minority groups "increase in number and size, they also contest the status quo," and become a "threat." As the minority group grows, so do perceived threats to the economic and social structure of the majority increase, and hence "minority communities are likely to be policed more aggressively," Ruddell continues. As a result more arrests take place in these communities - and on down the road, more executions as well.

The Journal of Human Rights published an article titled "Of rights and men: towards a minoritarian framing of male experience" which adds another level - that is gender, e.g., black men - to the well-documented disproportionate number of blacks killed for crimes. Jones, the author, quotes the Secretary General of Amnesty International, Pierre Sane, as corroborating what Adams asserted earlier in this paper; "The odds of a death sentence in which blacks killed whites has been shown to be as much as 11 times higher than in the murder of a black victim by a white person" (Jones, 2002).

Further, Sane puts forth the view that whether you live or die in the U.S. - "as a result of your crimes" - seems to be "largely determined by the colour of your own skin and the race of your victim." But the article's pivotal point is not just that minorities are unjustly singled out for death in terms of crime and capital punishment, but that there is gender discrimination in addition to racial bias in these cases.

Executions of males in the U.S. are out of proportion to the number of murders that males actually commit," Jones asserts. Women, who indeed have suffered far more than their share of pain due to the violence men tend to perpetrate upon them, nevertheless are "more likely to be dropped out of the system the further the capital punishment system progresses," Jones continues.

While women account for roughly 1 in 8 (13%) of murder arrests, they only make up 1 in 52 (1.9%) death sentences "imposed at trial level," Jones writes. As to the gender of persons on death row (at the time of the article, 2002), females made up 1 in 77 (1.3%); and when it comes to persons actually executed in the U.S. since 1976, women - who, remember, constituted 13% of arrests on murder charges - make up just 3 in 540 (0.6%).

There have been 132 death sentences imposed on women since 1973, but 76 of those sentences (57%) were subsequently overturned or commuted; the rate of overturned or commuted sentences for men is around one third of the cases. The author dips back to 1608, shortly after the Pilgrims arrived on Plymouth Rock, for some additional argumentative ammunition; of the 19,000 "confirmed executions...in what is now the United States, "only 515, less than three percent, were executions of women."

Somewhat cryptically, the author claims that men are "the disposable sex," in part because they "have been conscripted to fight nations' wars, and in part because the most dangerous work...relies upon the extensive maiming and killing of males..." Indeed, men seem disposable, Jones continues, since "every day, almost as many men are killed at work as were killed during the average day in Vietnam."

The American Society of Criminology published an article titled "On Reducing White Support For the Death Penalty: A Pessimistic Appraisal," in which the authors report that, using "survey-based experiments involving large national samples," it has been revealed that public opinion among Caucasians is "not substantially influenced by information about the over-representation of blacks on death row" (Barkan, et al., 2005). Are the authors suggesting that the white population is racist across the board, and hence, not shocked that so many blacks are on death row?

The answer to that question has to be a qualified yes; and surveys also reveal that whites are also seemingly unconcerned about the unfairness of the existing racial bias connected with death penalty executions, nor are they moved "by information about wrongful convictions in capital cases." To attempt an understanding of why public opinion is not easily swayed to a more sympathetic view of the clear bias in capital punishment cases, the authors first of all suggest that public informational campaigns relative to crime and justice are usually under-funded and hence, public opinion isn't swayed to any large degree. Secondly, they explain that support for death penalty measures "rose substantially after the mid-1960s," due to "rising crime rates and to efforts by politicians (who typically have far greater resources and impact than informational campaigns) to gain votes by using racially coded language."

In research conducted in 2002 by General Social Survey (GSS), and referenced by Barkan, 69.8% of whites favored capital punishment while only 42.1% of blacks favored capital punishment. There was a drop-off in support (across the board) for the death penalty between 1990 and 2000, however, of 11.6%. Among white participants in the survey, support for the death penalty fell from 77.4% in 1990, down to 68% in 2000 (a 9.4% drop).

The reasons Barkan offers for this decline in support for capital punishment are that, a) the homicide rate "dropped substantially in the United States beginning in 1994"; and b) the governor of Illinois received a great deal of national publicity through intense media coverage for his "moratorium on executions" in the state of Illinois.

That having been said, it remains a fact that "almost seven out of every ten whites still favored the death penalty in 2000," and that helps to keep the death penalty - dramatically and thematically prejudiced against black men though it may be - in place, since, at the outset of the article, Barkan asserted that "empirical evidence finds public opinion does indeed have a significant policy influence." And moreover, even the Supreme Court has given public views "explicit attention in its decisions" regarding the constitutionality of the death penalty..."

Not pulling punches, the authors flat out assert that "the roots of [whites'] death penalty support [lies] in racial prejudice." And the basis of those racist roots can be explained through a number of attitudes, which Barkan and his colleague identify as the following: "negative views of human nature"; the attitude that "laws [no matter how just or unjust] should be obeyed"; "fear of criminal victimization"; "salience of crime in one's neighborhood"; "religious fundamentalism"; identification with "political conservatism"; "trust in government"; "authoritarianism"; "support for civil liberties"; "interpersonal trust"; and "individualism."

And though racial prejudice is clearly "inappropriate by democratic norms," it is nonetheless linked, in the authors' minds, with support for the death penalty; and it is a "strong and stable value." And further, racial prejudice is "associated with punitiveness among whites," which is troubling. In fact, the 1992 American National Election Study concluded that "White support for the death penalty in the United States has strong ties to anti-black prejudice," the article reports.

The study shows that "White Americans' preferences for the death penalty cannot be adequately understood apart from their racial component"; in other words, support for the death penalty is indeed race-based, and for all the reasons outlined hitherto in this paper, the white community in the U.S. is, in general terms, biased against the African-American community to the extent that they respond to politicians' demagogic rhetoric endorsing punitive measures that punish blacks.

It is not editorially out of line to suggest that politicians, especially during election years - and members of the U.S. House of Representatives run for re-election every two years - embrace issues they can take tough stands on to get those all-important "undecided" voters motivated. And politicians universally want to be seen as "tough on crime," hence, their rhetoric on capital punishment plays into the fears of voters who may also have a bias against blacks.

Meanwhile, an article in The Journal of Politics ("Why Do White Americans Support the Death Penalty?") digs somewhat deeper into the impact that race has on capital punishment. "Race-coded rhetoric by public officials" and "media coverage that exaggerates black violence" are two of the most obvious reasons that whites support the death penalty (Soss, et al., 2003), along with the fact that politicians believe in "giving the people what they want," in the author's words. And a very powerful influence on whites - bolstering their pro-death penalty positions - occurs when media stories "routinely convey threatening images of black crime suspects and disproportionately portray black prisoners as 'irrational, incorrigible, predatory, and dangerous'."

The authors point out that government policies with reference to capital punishment have fairly predictable levels of group bias; for example, polls show women are less likely than men to support the death penalty; "people with higher education" tend to "cling more tenaciously to civil liberties" and hence take a stand against the death penalty; higher family income usually means support for the death penalty; and while Catholics tend to not support capital punishment, Christian fundamentalists do support capital punishment. And with that in mind, social change groups that hope to have an impact on the movement to ban capital punishment need to do their homework and put together coalitions of commonality to make points that will sway the other side their way.

There is no argument when the assertion is made that the media has had a huge impact on just about every social issue before the U.S. public. And an article in Social Science Quarterly ("Bolstering an Illusory Majority: The Effects of the Media's Portrayal of Death Penalty Support") suggests in a scholarly context that when it comes to the death penalty, "the media tend to cover the death penalty as if it were indisputably favored by a majority of Americans" (Niven, 2002). The author points to Justice Thurgood Marshall's belief that public opinion polls on the death penalty were "misleading," simply because "the average American was ignorant of the basic details of the death penalty debate."

Indeed, a sign of the times in terms of how divided the American public is on many social issues can be identified in the fact that studies show "both opponents and proponents of the death penalty are found to be resistant to information that undercuts the premise of their support." When told that their reasoning for being in favor of or against the death penalty "is factually inaccurate, opponents and proponents tend to attack the information rather than reconsider their positions."

That "attack" mentality and "in-your-face" strategy mirrors the approach candidates have taking in national elections in recent years; those paying attention have seen more attack ads - defining opposition candidates with slick, negative TV spots - than ads that actually explain what positive steps a given candidate will promise to undertake to make life better for voters.

Moreover, support for the death penalty is not as solid as the media would like people to believe, Niven reports. The question most normally phrased in polls - one that receives a "yes" answer about 80% of the time - is, "Are you in favor of the death penalty for persons convicted of murder?"

But when the question is posed differently, and provides further additional / optional alternatives, "including sentences of life without parole plus restitution (LWOP+R), in which the convicted murderer would be forced to work in a prison job and the proceeds of that work would go to the victim's family or to a victim's fund," the answers reflect that "less than half chose the death penalty." Indeed, in many cases, Niven writes, "a clear majority chose LWOP+R."

CONCEPTUALIZATION:

Given that there are signs that support for the death penalty is not as firm and as widespread as the media has projected it to be, and in fact is rather shallow in some regions, more research is needed into why the public appears (in polls) to be in favor of capital punishment. Aside from those citizens who are apparently predisposed to support the death penalty based on their racial bias, there should be a more objective set of questions and standards to tap into the true feelings of Americans on this issue.

Indeed, an article in Criminology and Public Policy ("Executing the Innocent and Support for Capital Punishment: Implications for Public Policy") strongly suggests that if a public information campaign were launched promoting the fact that "innocent people have been executed" (Unnever, et al., 2005) public opinion might be turned against capital punishment, or at least a dialogue could be launched in which facts and policies can be more fully explored.

The concept is straight forward: "Individuals [voters, citizens] who believed that innocent people have been executed were significantly less likely to support the death penalty" and more likely to support life imprisonment, the article asserts.

To bolster their argument the authors point out that since 1973 a total of 115 people in 25 states have been "released from death row with evidence of their innocence." Luckily, those 115 individuals were found to be not guilty of the crimes they had been accused of and convicted for, prior to stepping into the death chamber.

And when it comes to those convicted and sentenced to die, but later found to be innocent, their numbers are on an upward scale; indeed, the authors report that the yearly average of death row exonerations in 1973 was 3.08, but by 1998 it rose to 7 exonerations per year. Some 400 cases have been documented in which individuals have been "wrongfully convicted" of capital crimes, and the number of death row inmates released from prison "is equal to nearly 15% of those actually executed." And nearly one-half of the individuals that have been exonerated since 1973 have been African-Americans.

The salient reason for defining the current trend towards death row inmates being found innocent and subsequently released - due in no small part to the advances in the science of DNA - is that there is a need to educate the public regarding the facts of capital punishment.

METHODOLOGY:

The research that needs to be done regarding the way the public views capital punishment can be accomplished through a series of carefully crafted studies that tap the opinions of a cross-section of American society. The United States is indeed a melting pot of diverse cultures and sub-cultures, and while the literature presented in this paper points to generalizations regarding the pro-or-anti-attitudes of certain select American groups towards the death penalty, not enough in-depth research has been conducted into the diversity of cultures in America.

As Niven wrote in Social Science Quarterly, the media "face a basically united elite and an issue in which the popular majority is large enough (or appears so) that there is little need to be concerned with offending those who do not agree" with a pro-death penalty position.

So, since the prevailing media-fueled view of capital punishment is cut and dried but lacks "scholarly caveats in their portrayal of a consensus issue" (Niven), I will present the steps I propose to take to more fully research public opinion regarding capital punishment.

Research Design: First, a series of questionnaires will be created that will present objective questions to a diversity of voting Americans. The questions will be prefaced with a few very succinct, thoughtfully posed, yet poignant facts. The education of the public on important social issues is something that has been largely ignored by political leaders, who seem to prefer propaganda, attack ads and cheap campaign slogans to bona fide, worthwhile voter information.

The purpose of the questionnaires will not necessarily be to convince people to change their minds on the death penalty, but rather, to take the pulse of the nation in a more complete and objective way. When the question is opened up to allow choices, because there are alternatives to the death penalty, the possibilities for a more open-minded answer are present.

To wit, by presenting information that hitherto was not known to those participating in the questionnaire project, the result may well be a more verifiably scientific understanding of public opinion. Some of that information will be offered on the next page.

The typical question to be asked by the Gallup Poll and by media such as CNN and Time Magazine, which was mentioned earlier in this paper, is: "Do you support the death penalty for those who have been convicted of murder?" This question has words and phrases that are loaded with potentially prejudiced passion and emotion, and tend to evoke a "yes" answer. For example, "death penalty" is a much harsher phrase than "capital punishment," and "death" itself leads to dark, negative thoughts of uncertainty, mortality, victims and perpetrators; "penalty" has the punitive ring of revenge and hatred (e.g., you get what you deserve; let's get even).

The word "those" takes the humanity away from the real flesh-and-blood person who sits on death row; a "those" can be thrown away, burned to a crisp or injected with lethal poison, much easier then a "person" or "individual" or a "man." The word "convicted" implies that justice has been put to work in this case, and all the evidence points to guilty, otherwise some lawyer would have helped the accused prove his innocence, right.

And "murder" is one of the scariest words in the English language, and is used thousands of times a week on numerous television shows; murder is something that everyone dreads and fears, and for those who commit murder - including the thousands each week on television programs - no punishment can be too harsh, right? But, the point of this questionnaire project is, what if the public is led to understand that a significant number of "murder convictions" simply end up wrong, are riddled with mistakes and biased testimony, and that innocent people are being exonerated and released from death row on a regular basis? That presents a very different theme, one that can elicit a more measured, reasoned response.