Death Penalty and Race Arguments

Death Penalty and Race

Arguments have raged for decades about the use of capital punishment in the United States, with some holding that there is a need for society to express its disapproval for certain acts by ending the life of the convicted person, while others see this as an act outside the boundaries of what a civilized society should do. The discussion can be much more complex, beginning with assumptions about why the death penalty is used at all, how well these reasons can be supported, how likely it is that a mistake will be made, and so on. Fairness is always an issue in these discussions, referring to fairness to the accused, fairness to the victim, and even fairness to society at large and to any future victims if a murderer is free to kill again. The death penalty has been suspended at times, as after a major Supreme Court case in them 1970s when the criteria for application of the death penalty were challenged and then changed, but legislators in the states and the federal government keep reinstating it and trying to do so in a way that will pass judicial review. For the most part, such legislation is in response to public pressure for a solution to crime, if not for punishment that is simply more retributive because of public anger about one case or many cases. More and more challenges are being brought on the basis of racial disparity, on the perception that minorities are more likely to be convicted and sentenced to capital punishment and also more likely to be executed than whites. The argument is also tied to larger concerns about how the justice system treats minority defendants in all types of case, and inevitably the discussion is further tied to the wider issue of whether or not the death penalty should be applied at all.

One of the primary reasons for opposing the death penalty is that its finality does not allow the state to remedy errors. Indeed, the rhetoric of capital punishment does not allow for error or may even accommodate it as the price society is willing to pay. In recent years, we have seen many people released from death row because of new evidence, much of it DNA evidence, and had these people been executed, no remedy would have been possible.

Other arguments relate to the fairness of the death penalty as it is applied, and it has been argued that the death penalty is racially skewed, that application of the death penalty is arbitrary and capricious, that medical doctors are made into hypocrites by their participation, and that there are religious reasons for avoiding the death penalty. All of these are good reasons, but the best reason remains that making an error is simply too great a price to pay for assuaging the fears of the public, when in fact the death penalty does nothing to make society safer at all.

One of the theoretical models of criminal justice cited by Kraska (2003) and often used in analyzing the issue of the application of the death penalty to minorities is Criminal Justice as Oppression, a perspective often included in feminist critiques of society as well. This is based in part on the conflict model holding that society is best characterized by the existence of conflict so that criminal laws and the administration of those laws result from power struggles between competing groups and opposing interests. In such a competition, the minority is clearly outmanned and affected by discriminatory practices in a variety of ways.

Criminal Justice as Oppression

Alan Freeman also comments on a specific form of institutional racism when he writes,

It is sadly ironic that law, which offered for a time a promise of liberation from America's historic reality of caste-based oppression, and did secure some rights of equality, has also served to legitimize the persistence of rampant, racially identifiable inequality (Freeman, 1990, p. 122).

In an interview with Justice Bruce M. Wright of the New York Supreme Court, himself a black male, an area where blacks are not sufficiently related to the criminal justice system emerges and shows one of the reasons why the problems persist. Justice Wright answers a question as to why such a high percentage of black males are in jail and what to do about it:

Get more Blacks on the police forces. The police protect white property and regard us with suspicion. The U.S. Supreme Court recently ruled that it's all right for the police to stop an interstate bus and say to a passenger, "May I search your baggage?" Even though they have no reasonable grounds to believe that the person is transporting contraband. And who do [the police] stop? Black males. We are the ones who fit the police profile of criminals (Payne, 1991, p. 53).

Blacks are criminals and they are victims, but few are part of the justice system designed to deal with the issue. Blacks remain disenfranchised to a large degree so that their problems are seen as peripheral to the interests of white society and as impinging on that society primarily to the degree that black crime spills into white neighborhoods.

Blacks may also be omitted from participation in the trial process except as defendants as many experts suspect that blacks are often deliberately excluded from juries in capital cases. In 1977, a Georgia district attorney wrote a memo instructing jury commissioners to under-represent blacks in jury pools for murder cases. In 1988, during an investigation of bias, a district attorney in Jackson, Mississippi testified under oath that it was his policy to rid juries of "as many blacks as possible." Death-row inmates who claim that they have been unfairly convicted traditionally turn to the federal courts for redress. Since 1976, 42% of all state-imposed death sentences have been overturned on appeal, usually on the grounds that the defendant's constitutional rights have been violated, including claims that race was a factor in jury selection. Recently, though, the federal courts have become much less sympathetic to such claims. In a landmark 1987 decision, the Court ruled that while statistical data did show that killers of whites are more likely to receive the death sentence than killers of blacks, that fact was not enough to prove intentional discrimination (Monagle, 1992, pp. 13-15).

Though some whites think of blacks as prone to crime and as inherently criminal, the fact that there seem to be more black criminals than white is a relatively recent development. In 1930, 76.7% of inmates in our penal institutions were white, and as recently as 1970 the number was 60.5%. In contrast, blacks made up 22.4% of the prison population in 1930 and now make up a staggering 45.3%. This suggests that black men were much more law-abiding a century ago, and in fact, controls exerted by churches, the authority of elders, and community pride combined to deter conduct that could land black men in trouble. Given the depth of poverty and endless humiliations in the South of the time, this discipline is all the more striking. Hacker (1992) suggests one reason for the change when he notes:

The black family is disintegrating, while the white family remains intact. Since Daniel Patrick Moynihan's 1965 report found black families trapped in a "tangle of pathology," conditions seem to have gotten worse. Two-thirds of black babies are now born outside of wedlock, and more than half of black youngsters live only with their mother; and in most of these households she has never been married (Hacker, 1992, p. 21).

There appear to be a number of forces at work to contribute to the deterioration of black life to add to the rolls of both criminals and crime victims in those neighborhoods.

Statistical evidence shows that blacks are involved in crime both as perpetrators and victims in a percentage larger than their proportion in society. There is some evidence that blacks are also treated inequitably by the criminal justice system at all levels, from encounters with police on the street to sentencing, and specifically with reference to the application of the death penalty according to the race of the victim. Researchers seeking some reason for this have identified economic forces in the black community and the deteriorating structure of the family unit in that community as well as residual institutional racism in American society, though there are also researchers who would argue with some of these conclusions.

Capital Punishment

The issue of capital punishment has been debated from a number of perspectives, and one of the more recent attacks on the death penalty has come from those who believe that the punishment has not been applied equally and that there is a racial component in the way some offenders are treated by the system. To date, this concept has not prevailed with the U.S. Supreme Court, and the major cases that reached the Supreme Court based on this theory failed to persuade the Justices. Death penalty opponents have cited a variety of statistics as to reasons why the death penalty is racially discriminatory, raising the issue in court and before the legislature in an attempt to change the system or do away with the death penalty altogether, so far without success. Statistics show that black murderers are far more likely than white murderers to get the death penalty, especially if the victim was white. Blacks make up 12% of the population but 40% of the population on death row, as noted. Georgia can serve as a case in point. Statistics show that a black man accused of killing a white person in Georgia is substantially more likely to receive the death penalty than a white person convicted of killing either a white or a black, and forty-six percent of the inmates on Georgia's death row are black, with most on death row for killing a white person. The situation is much the same in the 35 other states that have capital punishment. In Maryland, blacks make up nearly 90% of the prisoners on death row; in Illinois, 63%; and in Pennsylvania, 60%. The disparity nationwide is even greater when the race of the murder victim is taken into account: although half of all murder victims in the U.S. are black, 84% of the inmates on death row are there for killing a white person. In the last 47 years, only one white person has been executed for the killing of a black person. Out of the 16,000 executions in U.S. history, only 30 cases involved a white convicted of killing a black (Monagle, 1992, p. 13).

In 1986, this issue was raised before the U.S. Supreme Court on an appeal by a Georgia inmate and a Florida inmate in two separate cases. This issue was touted as perhaps the last full-scale assault on the death penalty. In McCleskey v. Georgia it was argued that the defendant should not have to show that he was personally discriminated against to challenge the systematic racial discrimination perceived in the justice system. Similar claims were being raised by three inmates in California based in a preliminary study that showed that whites accounted for only one-third of the homicide victims between 1978 and 1982, while three-fourths of the murderers on Death Row had killed whites. It was stated that there was only a one-in-a-million chance that the disparity was not race related (Hager & Morain, 1986, p. A16).

An important study supporting the idea that there is a racial component to capital punishment was conducted by David Baldus, who examined all capital cases in Georgia from 1973 to 1979 and who found that even after controlling for all variables that affect sentencing, people convicted of killing whites were 4.3 times more likely to receive the death sentence than those convicted of killing blacks. In cases where the defendant was black and the victim white, blacks were 22 times more likely to be sentenced to death. Racial disparities of this sort are not limited to Georgia, and a national study conducted in 1990 by the federal government's General Accounting Office (GAO) found that there was a pattern of evidence indicating racial disparities in the all aspects of the death penalty (Monagle 13-14). In the McCleskey case, the Supreme Court allowed the sentence of death to stand, rejecting the Baldus study as irrelevant. The vote was a close 5-4, with the majority opinion written by Justice Powell and the dissent joined by Justices Brennan, Marshall, Blackmun, and Stevens. The dissenters stated that it was intolerable under the Eight and Fourteenth amendments that the decision to impose the death sentence should turn on the irrelevant factor of the victim's race. Justice Powell wrote that, to prevail, McCleskey had to prove that the decision-makers in his case intended to discriminate and that the statistical pattern insufficient for this purpose. Justice Powell never makes it clear why this is so, and Justice Blackmun pointed out in dissent that the statistics showed that McCleskey's case was such that it was more likely than not that he would not have received a death sentence if his victim had been black (Finkelstein, 1987, p. 599).

The evidence that there is bias in sentencing along racial lines is not conclusive. Another study seemed to show bias as it indicated that in a 17-county sample of convicted felons, 44% of the blacks, 37% of the Latinos, but only 33% of the whites were sent to prison. The distribution of prisoners and probationers by type of crime shows that black and Latino offenders were more likely to go to prison than white offenders, especially for assault and drug offenses. It was found that 39% of those sent to prison for assault were black, whereas only 27% of those who received probation for this crime were black. Latinos constituted more than half of those convicted of drug crimes but less than 25% of those convicted of theft or forgery. However, once the researchers had controlled for various influences, they decided that there was no racial bias in their sample:

Taken together, our findings indicate that California courts are making racially equitable sentencing decisions. The racial disparities apparent in the in/out decision are not evidence of discrimination in sentencing?

once we control for relevant crime, prior record, and process variables... We found no evidence of racial discrimination in the length of prison term imposed for any of the crimes studied (Klein, Petersilia, & Turner, 1990, p. 816).

Ongoing Debate

Stevenson (2004) accepts the idea of oppression as the impetus for the death peantly as he writes,

Stevenson further notes that at the end of 2002, there were 3,692 people on death row in the United States and that 38 of the 50 states had death penalty statutes. The death penalty had been resurrected in 1976, and after that there were over 800 executions, 89% of which have occurred in the American South, and that these executions included women, juveniles, and the mentally ill. The majority of these executions took place in the last decade of the twentieth century as support for capital punishment gained greater political resonance and as federal courts retreated from the degree of oversight and review that existed in the early 1980s: "All of the executed were poor, a disproportionately high number were racial minorities convicted of killing white victims, many of the executed were mentally ill, and some were juveniles at the time their crimes occurred. There is no meaningful assurance that all of the executed were guilty" (Stevenson, 2004, p. 84).

A number of analysts have found a relationship between racial prejudice and the death penalty. Bohm (1991) and Aguirre and Baker (1991) find that race is one of the characteristics that has distinguished death penalty proponents from death penalty opponents. Finckenauer (1988) is more explicit and states that public support for the death penalty is linked to personality characteristics such as racial prejudice. Cohn et al. (1991) suggest that support for punitive measures, such as the death penalty, is a reflection of whites' racial prejudice toward African-Americans. Both Taylor et al. (1978, 1979) and Stinchcombe et al. (1980) show that opposition by whites to school busing for racial equality has been strongly associated with their support for capital punishment. Furthermore, Young (1991) suggests that white citizens support the death penalty in higher numbers because they see it as the best deterrent to criminal actions committed by blacks. Such studies show that public support for the death penalty is not color blind and that white support for the death penalty is a form of symbolic racism.

Outcome for Capital Punishment

For most studies in which the crimes considered are comparable, the death penalty is shown to be between three and four times more likely to be imposed in cases in which the victim is white rather than black (Baldus & Woodworth, 1998; Baldus et al.,. 1990; Radelet & Pierce, 1991). A 1990 review of 28 studies was conducted for studies that had examined the correlation between race and death sentencing in the United States after 1972, and in this, the U.S. General Accounting Agency (1990) concluded that "the synthesis supports a strong race of victim influence. The race of offender influence is not as clear cut and varies across a number of dimensions. Although there are limitations to the studies' methodologies, they are of sufficient quality to support the syntheses' findings" (p. 6). Studies into the 1990s show the same thing so that the race-of-victim effects are note (Keil & Vito, 1995), though some research, such as Baldus et al., 1998, also finds race-of-defendant effects. Amnesty International (1999) concluded that it was "undeniable" that the death penalty in the United States "is applied disproportionately on the basis of race, ethnicity, and social status" (p. 2).

The studies of Baldus and his colleagues in Georgia have been key in the ongong effort to show the effect of racial bias on the application of the death penalty. In Baldus et al., 1990, the researchers statistically controlled for some 230 variables and then concluded that the odds of a death sentence for those who kill whites in Georgia are 4.3 times higher than the odds of a death sentence for those who kill blacks. This data was used in the McCleskey case before the Supreme Court in 1987, on the claim of unfair racial bias in the administration of the death penalty in Georgia. The Supreme Court, though rejected the argument and the idea that a statistical pattern of bias could prove any bias in McCleskey's individual case (McCleskey v. Kemp, 481 U.S. 279 [1987]). The vote on the issue was 5 to 4, and while the decision was written by the Justice who cast the deciding vote, Justice Lewis Powell, he has since stated that if he could change his vote in any single case, it would be this case.

As he would later state, "I have come to think that capital punishment should be abolished... [because] it serves no useful purpose" (Jeffries, 1994, pp. 451-52). The Supreme Court decision now requires that defendants raising a race claim must prove that race was a factor in their individual case. It also means that as far as the courts are concerned, the statistical patterns indicating racial bias are irrelevant. An effort was made to overcome this with the "Racial Justice Act," a law that would have required courts to hold hearings to examine statistical patterns of disparities in capital cases, but the law did not pass (Bright, 1995, pp. 465-66).

A further problem is that while most Americans recognize the problems of race and class, as shown in public opinion polls, they also do not believe that such discrimination is a reason to oppose the death penalty. A 1999 Gallup Pollfound that 65% of the respondents agreed that a poor person is more likely than a person of average to above-average income to receive the death penalty for the same crime, and half the respondents agreed that black defendants are more likely than whites to receive a death sentence for the same crime. In spite of this, 71% of those polled favored the death penalty (Glimpse, 1999).

Poveda (2000) notes that the death penalty has gained support in the year since it was temporarily ended in 1972 with the Furman decision, and he also notes how this makes the United States outside the mainstream in world opinion as much of the rest of the world has been abandoning the death penalty as a barbaric practice. He also states that the explanation for why U.S. has failed to abandon capital punishment must be understood against the backdrop of the persisting cultural values of the American Dream and on the basis of the traditional exclusion of racial minorities from national life. The period has also seen a revival of social Darwinism because of economic turmoil over this period. He says this beacsue social Darwinism in invokes the principle of "survival of the fittest" for corporations and individuals alike, contributing to calls for smaller government and for an end to government intervention in the marketplace. On this basis, those who fail to thrive deserve their fate and should have only a minimal social safety net available. This is in keeping with the view that those at the bottom of the social ladder who commit heinous crimes are even less deserving of consideration. Poveda notes that Texas is the state with the most executions in the post-Furman era and finds that the state also ranks at or near the bottom among all states on most measures of social spending. The themes that have developed continue to justify the execution of criminal offenders a t a time when other Western democracies have abandoned the practice. This is also seen as a reason why a statistical showing of bias in the application of the death penalty does not persuade more people of the unfairness of the punishment, given that they already accept that there are disparities but see them as the fault of the poor and the minorities themselves.