Racial and ethnic disparities in death penalty sentencing and appeals

Racial Discrimination and the Death Penalty

The United States Department of Justice Bureau of Justice Statistics reported that at the end of the year 2000 that there was 1,381,892 total number of prisoners under the jurisdiction of federal or state adult correctional authorities (State pp). During 2000, the prison population rose at the lowest rate since 1972 and had the smallest absolute increase since 1980 (State pp). Relative to the number of U.S. residents the rate of incarceration in prisons was 478 sentenced inmates per 100,000 residents, up from 292 in 1990, or one in every 109 men and one in every 1,695 women (State pp). In 1999, there were 3,527 individuals under the sentence of death and 84 executions (State pp).

Donna Coker reports in the June 22, 2003 issue of Journal of Criminal Law and Criminology that for the past several years the official incarceration data has revealed that African-Americans represent roughly half of incarcerated individuals, though African-Americans account for only twelve percent of the national population (Coker pp). Approximately twelve percent of African-American men between the ages of twenty and thirty-four were either in jail or prison in 2002, compared to 1.6% of white men in the same age group (Coker pp). Researchers with the Bureau of Justice Statistics estimate that twenty-eight percent of African-American males will be jailed or imprisoned during some point in their lifetime (Coker pp). One study conducted by the Sentencing Project reports that roughly one in three, or 32.2%, African-American men between the ages of twenty and twenty-nine are under the supervision of the criminal justice system on any given day (Coker pp). The "War on Drugs" policies that focus on supply-side enforcement against low-level dealers in inner city areas account for a significant amount of the racial disparity (Coker pp). Moreover, in federal prison, the federal 100 to 1 sentencing disparity between crack cocaine and powder cocaine, together with a federal law enforcement focus on crack offenses also plays a significant role in creating the disparity (Coker pp).

Racial disparities not only exist in drug sentencing, but also in death penalty sentencing (Coker pp). A survey released in 2000 and a follow-up survey in 2001 by the Department of Justice revealed that during the years 1995-2000, some 682 defendants were charged with death-eligible crimes, that is crimes for which the death penalty was a potential punishment, and of these 682 defendants, the defendant was African-American in forty-eight percent of the cases, Hispanic in twenty-nine percent of the cases, and white in only twenty percent of the cases (Coker pp). The survey also revealed a significant racial disparity in plea bargaining (Coker pp). Of the defendants in whose cases the Attorney General authorized a death penalty prosecution, and subsequently entered a plea agreement that spared them a death penalty prosecution, only twenty-five percent were African-American defendants and twenty-eight percent were Hispanic, compared with forty-eight percent of white defendants who entered into plea agreements (Coker pp). Moreover, the survey noted that there were nineteen defendants then under a federal death sentence, sixty-eight percent of whom were African-American, while only twenty-one percent were white and five percent were Hispanic (Coker pp). The racial disparities in federal death penalty data were in contrast to state death penalty data, where combined state date found that fifty-five percent of defendants awaiting execution were white and forty-three percent were African-American (Coker pp). The racial disparities in the federal system remained when additional data was collected on cases that could have been charged with death eligible offenses, but were not (Coker pp). The 2001 follow-up survey included an additional 291 cases, for a total of 973 cases (Coker pp). Of the 973 defendants who were either charged with a death-eligible offense or whose conduct was such that they could have been charged with a death-eligible offense, seventeen percent were white, compared to forty-two percent African-American and thirty-six percent Hispanic (Coker pp).

Generally speaking, criminal defendants have been unsuccessful in challenging racially disproportionate surveillance, incarceration, or application of the death penalty (Coker pp). The Court's intent-based requirements for discrimination are seldom adequate to address the kinds of systemic discrimination that are most common (Coker pp). The Supreme Court's discovery rule in Armstrong and Bass creates obstacles for defendant that exceed those created by the need to prove discriminatory intent (Coker pp). In United States v. Armstrong, and the recent per curiam decision in United States v. Bass, defendants moved for discovery in support of their selective prosecution claims (Coker pp). The defendants in the Armstrong case argued that federal prosecutors selectively chose to indict African-Americans in federal court for crack cocaine offenses, while whites were prosecuted in state court where conviction carried shorter sentences (Coker pp). To support their discovery motion, defendants offered evidence that all of the twenty-four cases closed by the Federal Public Defender's office involving defendants charged with crack cocaine offenses involved African-American defendants, that a counselor at a drug treatment center said that the number of white who use and deal drugs is equivalent to the number of racial minority persons, and that in the experience of a criminal defense attorney, many whites were prosecuted in state court for crack cocaine offenses (Coker pp). The Supreme Court ruled that to gain discovery, defendants must proffer evidence that "similarly situated" whites were treated more favorable, then it dismissed the "similarly situated" evidence proffered by the defendants, claiming that the testimony regarding the experiences of the drug counselor and the defense attorney were "hearsay and ... personal conclusions based on anecdotal evidence," and the study of cases handled by the federal public defender "failed to identify individuals who were not black and could have been prosecuted for the same offenses" (Coker pp).

In Bass, the Court reiterated its discovery standard set in Armstrong and made clear that the same standard applied even when the claim was selective prosecution in electing to pursue the death penalty (Coker pp). Bass tried to prove that the federal prosecutor's decision to pursue the death penalty in his case was based on his race (Coker pp). His primary evidence of racial effect was the 2000 Department of Justice survey described above, which reported that for the years 1998 -- 2000, fifty-one percent of death penalty defendants were fifty-one percent, compared to only twenty-five percent who were white, and that a similar disparity existed in those cases in which the Attorney General authorized death penalty prosecution but the defendant later agreed to a plea bargain (Coker pp). According to the Court, Bass's evidence was inadequate to support a claim for discovery (Coker pp). And regarding the evidence that African-Americans are charged in federal court more often with a death-eligible offense than whites, the Court determined that Bass failed to demonstrate that there were "similarly situated" whites who were not so charged (Coker pp). Moreover, the Court dismissed as irrelevant the racial disparities in plea bargaining due to the fact that Bass was offered a plea bargain but he refused (Coker pp).

The political discourse regarding the findings of the 2000 Department of Justice death penalty survey provides further evidence of the difficulty of pinning a reasonable meaning to the term "similarly situated" (Coker pp). The survey caused a response from then Attorney General Janet Reno who "directed that further study be carried out to illuminate any statistical disparities at other stages of the process, such as decisions whether to pursue federal rather than state charges in potentially capital cases"(Coker pp). Reno ordered the National Institute of Justice to solicit outside research proposals to conduct a study of the federal system, and also required U.S. Attorneys to submit summaries of all cases in which a capital eligible crime could have been charged, but was not (Coker pp). The supplemental data from the U.S. Attorneys was compiled and analyzed in a second Department of Justice Report, Survey 2001, under new Attorney General John Ashcroft (Coker pp). The 2001 survey also revealed sharp racial disparities, which included an additional 291 cases, for a total of 973 defendants (Coker pp). Of the 973 defendants who were either charged with a death-eligible offense or whose conduct was such that they could have been charged with a death-eligible offense, seventeen percent were white, compared to forty-two percent who were African-American, and thirty-six percent who were Hispanic (Coker pp).

The first survey completed under Reno's tenure reported data in a straight forward manner with little commentary, while the 2001 survey under Ashcroft argued that the racial disparities in the pool of death-eligible cases and the resulting disparity in death penalty prosecutions were the result of individual district priorities, not trends in federal prosecution (Coker pp). It noted two areas of district concern that accounted for most of the racial disparity: "enforcement effort against 'violent gangs' that traffic in illicit drugs, and inmate violence in federal prisons" (Coker pp). The 2001 survey provided examples from four districts, focusing on the Eastern District of Virginia, which sent for review sixty-six capital cases, of which fifty-nine were African-Americans, five were for whites, and two for Hispanics, thus eighty-nine percent of the defendants were African-Americans, 7.6% were white and roughly three percent were Hispanic (Coker pp). The fact that drug enforcement task force efforts were responsible for fifty-one percent of the cases was explained, "the defendants in these drug-related cases are not White because the members of the drug gangs that engage in large-scale trafficking in the district are not White" (Coker pp). In response to racial disparities in plea bargaining the survey's author suggested that African-Americans and Hispanics were more inclined to reject a plea offer than whites, yet offered no evidence, empirical or anecdotal, to support any of the claims (Coker pp).

Michael J. Klarman reports in the October 01, 2000 issue of the Michigan Law Review the constitutional law of state criminal procedure was born between World War I and World War II (Klarman pp). Before 1920, the Supreme Court had upset the results of the state criminal justice system in a "handful" of cases, all of which involved race discrimination in jury selection (Klarman pp). However, by 1940 the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings, including "mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses" (Klarman pp). Moreover, the Court had broadened its earlier decision forbidding race discrimination in jury selection in ways that made it "practically as well as theoretically possible to establish equal protection violations in that context" (Klarman pp). The Supreme Court decided six landmark state criminal procedure cases between the years of the World Wars' era, four of which involved black criminal defendants convicted and sentenced to death after unfair trials (Klarman pp). In Moore v. Dempsey, the Court interpreted the Due Process Clause of the Fourteenth Amendment to forbid criminal convictions obtained through mob-dominated trials, in Powell v. Alabama, it ruled that the Due Process Clause requires state appointment of counsel in capital cases and overturned convictions where defense counsel had been appointed the morning of trial (Klarman pp). In Norris v. Alabama, the Supreme Court reversed a conviction under the Equal Protection Clause where blacks had been intentionally excluded from juries, and in order to reach that result the Court had to revise the critical "subconstitutional" rules that previously had made such claims nearly impossible to prove (Klarman pp). In Brown v. Mississippi, the Court construed the Due Process Clause to forbid criminal convictions based on confessions extracted through torture (Klarman pp).

In the Moore case, six black defendants appealed imposed death sentences for a murder allegedly committed during the infamous race riot in Phillips County, Arkansas in 1919, when a group of whites shot into a black union meeting at a church and blacks returned gunfire, killing a white man (Klarman pp). Apparently whites went on a rampage against blacks, tracking them down through the rural county, and killing as many as 250 of them, yet seventy-nine blacks, and no whites, were prosecuted as a result of the riot, twelve of whom received the death penalty for murder (Klarman pp). Six were involved in the appeal to the U.S. Supreme Court in Moore v. Dempsey, where the Court reversed their convictions on the ground that mob-dominated trial proceedings violated the Due Process Clause (Klarman pp). Both Powell v. Alabama and Norris v. Alabama arose out of the famous Scottsboro Boys episode, in which nine black youths, ranging in age from thirteen to twenty, impoverished, illiterate, and transient, were charged with raping two young white women, alleged to be prostitutes, on a freight train in northern Alabama in the spring of 1931 (Klarman pp). The defendants were tired in a mob-dominated atmosphere, and eight of them received the death penalty, yet the state supreme court reversed on of the death sentences on the ground that the defendant was too young to be executed under state law, and affirmed the other seven sentences (Klarman pp). The U.S. Supreme Court twice reversed the Scottsboro Boys' convictions, "the first time on the ground that they had been denied the right to counsel, and the second time on the ground that blacks had been intentionally excluded from the grand jury that indicted them and the trial jury that convicted them" (Klarman pp). In Brown v. Mississippi, the Supreme Court reversed the death sentences of three black sharecroppers convicted of murdering their white landlord, because the principal evidence against the defendants was their own confessions which were extracted through torture (Klarman pp). The Court ruled that convictions so obtained violated the Due Process Clause of the Fourteenth Amendment (Klarman pp).

These four cases arose out of three similar episodes in which blank defendants were charged with serious crimes against whites and were nearly lynched before their cases could be brought to trial (Klarman pp). In all three episodes, mobs comprised of hundreds or even thousands of whites surrounded the courthouse during the trial, demanding swift execution, and lynchings were avoided only through the presence of armed state militiamen surrounding the courthouse (Klarman pp). Moreover, even at the time of the trial, there was serious doubt as to whether any of the defendants was in fact guilty of the crime charged, and in all three cases, defense lawyers were appointed either the day of or the day before the trial, "with no adequate opportunity to consult with their clients, to interview witnesses, or to prepare a defense strategy" (Klarman pp). The trials took place quickly after the alleged crimes, less than a week afterward in Brown, twelve days in Powell, and a month in Moore, and were completed in a matter of hours, (only forty-five minutes in Moore), and the juries, which excluded any blacks, deliberated for only a matter of minutes before imposing death sentences (Klarman pp).

Most conclude that these trials were simply one step removed from lynching, and were basically legal lynching (Klarman pp). Reported lynchings had declined dramatically by the 1920's, and although there were several contributing factors, the decline was also dependent on the fact that lynchings were being replaced by quick trials that reliably produced guilty verdicts, death sentences, and rapid executions (Klarman pp). In fact, Arkansas actually enacted a law designed to prevent lynchings by providing for a special term of court in cases of rape or other crimes that were likely to arouse the passions of the public, stating that a trial was to take place within ten days of the alleged crime (Klarman pp). Thus, the state-imposed death penalty in these cases was simply a formalization of the lynching process, and in the small number of cases where defendants in mob-dominated trials were acquitted, they often were shot dead by the mob before they could leave the courthouse (Klarman pp).

The Alabama Supreme Court had previously reversed convictions in cases similar to Scottsboro on the ground that a change of venue should have been granted owing to mob domination, yet in Powell, the Alabama Supreme Court ruled that a fair trial was possible notwithstanding the presence of a mob surrounding the courthouse and that the right to counsel had been satisfied notwithstanding the farcical appointment of counsel the morning of the trial (Klarman pp).

Litigation, although it could not begin a social revolution, may have laid the groundwork for future civil rights protests due to several distinct objectives (Klarman pp). First, litigation taught blacks that they had rights, though they must fight for their enforcement, such as the NAACP's political campaign during the inter-war era for a federal anti-lynching bill (Klarman pp). Litigation also provided salutary examples to black communities of black accomplishment and courage, such as the presence of black lawyers in southern courtrooms (Klarman pp).

Following World War II, there was a resurgence in lynchings, maimings, and race riots, leading President Truman in 1946 to appoint his famous civil rights committee, which started a chain of events resulting in 1948 in the Democratic Party's adoption of a landmark civil rights platform and in Truman's issuance of executive orders desegregating the military and the federal civil service (Klarman pp). And most importantly, this same dynamic accounts for the enactment of landmark civil rights legislation in 1964 and 1965, in response to the brutality inflicted on black demonstrators in Birmingham and Selma (Klarman pp). Thus, as Klarman points out, the backlash Brown v. Board of Education produced in southern politics ultimately generated its own counterbacklash which rendered possible the enactment of revolutionary civil rights legislation, proving that Supreme Court decisions sometimes have unpredictable consequences (Klarman pp).

Scott Howe writes in the April 01, 2004 issue of William and Mary Law Review that the modern effort to regulate capital sentencing grew largely out of concerns about racial discrimination (Howe pp). Since 1963, the specter of racial prejudice animated the agenda for reform, and efforts within the Supreme Court to promote racial neutrality in death sentencing coincided with larger efforts in the wake of the Brown v. Board of Education decision to stem racial discrimination throughout public institutions (Howe pp).

The quest in the capital sentencing context has failed, although the primary concern has simply changed from race-of- defendant to race-of-victim discrimination (Howe pp). Numerous studies conducted in many states indicate that a defendant is less likely to receive a death sentence for the capital murder of a black victim than for the same murder of a white victim, and although results vary with the study and the state, they do reveal a widespread problem (Howe pp). The Supreme Court's post-Furman decisions on capital sentencing have done little to control the influence of unconscious racial biases, and the Court for the most part abandoned further effort toward a solution with its opinion in McCleskey v. Kemp, in which it rejected claims based on a study that showed a high risk that racial prejudice influenced capital selection in Georgia (Howe pp).

There is no easy explanation for the failure to pursue serious remedial actions in the death-penalty arena, however the federal government has made substantial efforts to limit racial discrimination in other areas, such as voting, housing, employment, and public education (Howe pp). This has led some commentators to argue that the weak effort to remedy the racial disparities in the capital sentencing context is "aberrational" in light of these advances, and some believe that history will rank McCleskey with Dred Scott as among the worst majority opinions in Supreme Court history (Howe pp). Then there are those who deny that the study supporting the challenge in McCleskey sufficiently established the influence of racial prejudice, and also deny that any statistical study can adequately prove racial discrimination in a context as complicated as capital sentencing (Howe pp). Critics of the disparities generally contend that these views build on unrealistic demands for certainty, and in fact, the accumulated research now strongly implies that unconscious racial bias influences capital selection on a widespread basis, "a conclusion sufficient to raise questions about the lack of more serious remedial action" (Howe pp).

In the post-Furman era, capital selection still lends itself to the influence of racial discrimination by decision-makers, most of whom are white (Howe pp). According to Howe, four factors play a central role:

(1) the broad application of the death penalty to non-negligent homicide;

(2) the decentralized decision making exercised by prosecutors and capital-sentencing juries;

(3) the extreme deference that courts extend to prosecutors on basic matters such as charging and plea bargaining; and (4) the expansive discretion given to capital sentencers

(Howe pp).

Howe continues by explaining that the broad applicability of the death penalty promotes the influence of racial prejudice by extending discretionary decision making to cases in which the propriety of the death penalty is unclear (Howe pp). According to Supreme Court doctrine, the death penalty can apply to most criminal homicides, and death-penalty states typically make the death penalty a possibility for most murders, resulting in a significant variation in the propriety of the death penalty among potential capital cases, leading to the potential that racial bias will affect outcomes (Howe pp).

There are only a small group of crimes for which the death penalty is now constitutional, since the Supreme Court has outlawed its use for typical non-homicidal felonies, such as rape or robbery, and have also proscribed the penalty for a small number of defendant who fall within the fringes of the felony-murder rule through vicarious liability doctrine (Howe pp). The Court has also banned the execution of previously death-sentenced inmates who are insane, defendants who were under sixteen at the time of their offenses, except in extraordinary circumstances, and recently, those who are retarded (Howe pp).

Most death-penalty states allow the capital sanction for a very broad array of murders, although some differences exist in the definitions of capital crimes (Howe pp). For example, any person convicted of simple murder in Georgia may face a death-sentencing hearing, yet in Louisiana, the capital statue includes only certain aggravated murders (Howe pp). In general, however, "death eligibility remains remarkably broad ... indeed, nearly as broad as under the expansive statues characteristic of the pre-Furman era" (Howe pp). And this broad application most likely encourages the influence of racial bias, because racial bias probably matters most in cases that are not on the extremes (Howe pp). Categorizing the "deathworthiness" of capital offenders is very subjective, however some researchers have contended that in cases viewed as being in the mid-range of aggravation, racial disparities are pronounced, yet in cases they view as being in the most-aggravated and the least-aggravated ranges, racial disparities are diminished, thus they believe that the influence of racial bias will matter most often where the proper outcome is not otherwise clear (Howe pp).

There are numerous studies that tend to confirm that unexplained racial disparities have plagued capital selection systems in the post-Furman era, and the vast majority have "found unexplained race-of-victim disparities and many also have found unexplained disparities against black defendants" (Howe pp). Moreover, these studies have been conducted in enough states to confidently dispute any claims that capital selection is free of racial bias (Howe pp).

Thus far, the most prominent statistical study, which became the basis for the litigation in McCleskey v. Kemp, was conducted by a team of researchers led by Professor David Baldus of the University of Iowa Law School, and focused on Georgia murder cases from 1973 to 1979 in an attempt to assess the influence of race and other illegitimate factors on the selection of murder suspects for death sentences (Howe pp). The Baldus group found the following death-sentencing rates in various categories of race-of-defendant and race-of-victim combinations:

Race of Defendant & Victim Death Sentencing Rate

1. black defendant/white victim .21 (50/233)

2. white defendant/white victim .08 (58/748)

3. black defendant/black victim .01 (18/1443)

4. white defendant/black victim .03 (2/60)

Total .05 (128/2484)

(Howe pp).

These statistics demonstrate that if the victim was white, the death sentencing rate was much higher than if the victim was black, and moreover, within the white victim cases, black defendants received death sentences at a much higher rate than white defendants (Howe pp).

Although there was no overall disparity favoring white defendants over black defendants, and on the whole, black defendants received death sentences less often than white defendants, this outcome stemmed from the predominance of black-on-black murders and the tiny proportion of death sentences in that category (Howe pp). Howe points out that although these outcomes may seem highly suspicious, and may stem in part from racial prejudice finds support in the long history in the United States of racial bias by whites in favor of whites and against blacks, especially within the criminal justice system, the Baldus researchers searched for any latent, legitimate variables that could explain the outcomes, however after extensive research and sophisticated analysis, they found no latent factors that could fully or even substantially explain the racial disparities (Howe pp). The Baldus group determined that no combination of the variables could explain the results without the consideration of race and confirmed that race strongly influenced case outcomes (Howe pp).

The Baldus researchers estimated that a defendant was 4.3 times more likely to receive the death penalty if the victim was white rather than black, and found that black defendants had a modest advantage over white defendants when all cases were considered, but with the white-victim cases, they found that a defendant was 2.4 times more likely to receive a death sentence simply because he was black rather than white (Howe pp). Moreover, the study revealed that the racial influences seemed to operate mostly in cases that were viewed in the mid-aggravation range of defendant culpability (Howe pp). The Baldus study is considered the most thorough examination of the role of race in capital selection that has even been conducted (Howe pp).

Based on capital cases during the first decade after Furman, numerous researchers conducted studies in Georgia and several other death-penalty states that implied race-of-victim influences (Howe pp). After studying capital sentencing in homicide cases in Florida, Texas and Georgia from the late 1970's, Bowers and Pierce found a high risk of powerful white-victim bias in all three states, and Paternoster and Kazyaka found the same held true in South Carolina, and the Nakell-Hardy study found the same in North Carolina (Howe pp). The researchers in each of these studies covered the various stages of decision making in capital selection by prosecutors and sentencers, and although not as thorough as the Baldus study, each study controlled for several legitimate case characteristics that could have explained the racial disparities (Howe pp).

Another important study that covered a broad range of jurisdictions and also found race-of-victim biases was conducted by Professors Samuel Gross and Robert Mauro, who examined all homicides reported to the Federal Bureau of Investigation from January 01, 1976 through December 31, 1980, in eight states: Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and Virginia (Howe pp). Researchers found "a remarkably stable and consistent" pattern of racial discrimination in the imposition of the death penalty in all eight states (Howe pp). In another study of capital sentencing cases between 1976 and 1986, in Kentucky, Vito and Keil also found unexplained racial disparities (Howe pp). After examining all cases in which a grand jury issued an indictment for murder, the researchers found that those who killed whites were much more likely to be sentenced to death than those who killed blacks, and concluded that Kentucky prosecutors had been influenced by racial factors (Howe pp).

And yet another complex and controlled study of prosecutorial discretion conducted in New Jersey also found remarkable race-of-victim and race-of-defendant disparities that could not find explanation in nonracial variables (Howe pp). Baldus led another study and also found significant race-of-victim and race-of-defendant discrimination in capital cases in Philadelphia, and numerous other studies have also found that race influences capital selection, such as one in Maryland that was commissioned in 2000 by then Governor Parris Glendening, that studied capital selection between 1978 and 1999, and found pronounced bias against killers of white victims, and within the white-victim cases, additional bias against black offenders (Howe pp).

The disparities are too pronounced and too consistent across studies, states, and time to ignore, leading even some staunch proponents of capital punishment to acknowledge the prevalence of race-bias in capital selection (Howe pp). In a private memorandum to the other Supreme Court Justices in 1987 and later exposed when the late Justice Marshall's papers were made public, Justice Scalia acknowledged the influence of racial bias (Howe pp). At the time the Court was considering whether the evidence from the Baldus Study made out a constitutional violation in McCleskey, when Justice Scalia wrote:

"Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this Court, and ineradicable, I cannot honestly say that all I need is more proof" (Howe pp).

According to Howe, Justice Scalia's statement underscores that there is nothing radical in accepting the statistical studies as grounds to doubt that capital selection is race neutral, and that "the studies support the view that racial prejudice frequently influences who dies" (Howe pp).

In United States v. Bass, 536 U.S. 862 (2002), the Supreme Court, in a "per curiam opinion," ruled on the standard of proof required for a defendant to obtain discovery to support a claim of selective prosecution for the death penalty and held that in order to attain such discovery, "a defendant must demonstrate that the prosecutors were motivated by a discriminatory intent and that the prosecutors' conduct had a discriminatory effect upon the defendant," and that such a showing may be accomplished by submitting relevant evidence that similarly situated persons were treated differently (Larson pp).

In the June 22, 2000 issue of Journal of Criminal Law and Criminology, Jessie Larson writes that the Court's decision "imposes too high a burden upon a defendant seeking to obtain discovery in support of a selective prosecution defense where the Government is seeking the death penalty," and in reaching its conclusion, the Court relied exclusively upon United States v. Armstrong (Larson pp). The Armstrong case set the standard for obtaining discovery in a selective prosecution stating that defendants must submit some evidence that similarly situated individuals could have been prosecuted but were not (Larson pp). According to Larson, the Court's absolute reliance on Armstrong was misplace, because the "importance of ensuring that the death penalty is not imposed arbitrarily outweighs the need to maintain the Executive's independence in enforcing criminal laws" (Larson pp).

The post-Furman era refers to the period since 1976, when executions resumed following the judicial moratorium of 1968 to 1976 (Poveda pp). In 1972, the United States Supreme Court declared in Furman v. Georgia, 408 U.S. 238, that state death penalty statues were unconstitutional on the grounds that they were administered in an arbitrary and discriminatory manner (Poveda pp).

Tony Poveda points out in the June 22, 2000 issue of Social Justice that those who have been executed throughout U.S. history have come overwhelmingly from the ranks of the poor and minorities (Poveda pp). According to the Espy File of executions in the United States, 1608 to 1987, approximately half of those executed were African-Americans, while other races comprised another ten percent (Poveda pp). Moreover, lower-status jobs were over-represented among the executed, and slaves made up the single largest occupational group (Poveda pp). One study of executions in Texas between 1923 and 1972, found that African-Americans accounted for 63.4% and Hispanics 6.6% (Poveda pp). Sixty-six percent were common laborers, 90% had not graduated from high school, and 52% had less than a sixth-grade education (Poveda pp). As of January 01, 1999, 35% of those executed in the U.S. were African-American, 7% were Hispanic, and 2% were Native American and Asian (Poveda pp). The demographic characteristics of current death-row inmates show an over-representation of minorities and the less educated: 42.2% African-American, 9.2% Hispanic, and 1.6% Native American and Asian, and roughly more than half have not graduated from high school (Poveda pp). These data establish the historical pattern of particular class and racial groups whose members are more likely to be executed (Poveda pp).

In 1990, the General Accounting Office, in a report to the Senate and House Committees on the Judiciary, reviewed 28 major studies on race and capital sentencing and found that the studies show "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" (Poveda pp). Eighty-two percent of the studies found race of the victim to be a key factor in the administration of the death penalty, influencing decisions at all stages of the criminal justice process, and more than half the studies identified race of the defendant as a factor (Poveda pp). A more recent study in 1998 found that black defendants were 38% more likely than were other defendants to receive a death sentence, "even after controlling for crime severity and the defendant's criminal history" (Poveda pp).

Colleen Johnson writes, in the June 02, 2001 issue of the Journal of Economic Issues, that capital punishment in the United States is administered in an economically discriminatory way, that the wealth disparity between those murderers who live and those who die constitutes a serious constitutional challenge to the permissibility of the death penalty (Johnson pp). Johnson believes that some twenty-five years' experience with the post-Furman death penalty procedures is an embarrassing constitutional failure, and that the apparent caprice and unfairness in the application of state-sponsored death is just as prevalent as it was before 1972 (Johnson pp).

Johnson points out that since blacks are three times as likely to be poor as whites, then it seems reasonable that race could serve to measure the impact of poverty on criminal charges, convictions, and sentencing (Johnson pp). In 1978, 53% of black jail inmates had pre-arrest incomes below $3,000, compared with 44% of whites, and in 1983, the median pre-arrest income of blacks was $4,067, while that of white inmates was $6,312 (Johnson pp). Theodore Chiricos argued that the poor person is more likely to be found guilty of similar crimes than a wealthier defendant, partly due to the fact that the poor are less likely to make bail and more likely to be represented by a public defender (Johnson pp). And being unable to post bail may bias the verdict toward guilty because the defendant is unable to substantially assist in his own defense (Johnson pp). Moreover, there is evidence that within the sentencing phase, the harshest penalties are reserved for blacks and the poor (Johnson pp). J. Petersilia found that African-Americans and Hispanics are "less likely to be given probation, more likely to receive prison sentences, more likely to receive longer sentences, and more likely to serve a greater portion of the original time" sentenced (Johnson pp).

Capital cases are high stakes occurrence, not only for the defendant but also for the state, and issues of prestige and credibility are raised, in the abstract for the state and in very personal terms for the district attorney (Johnson pp). Moreover, capital cases are much more expensive to litigate, thus the state chooses its capital cases very carefully (Johnson pp). According to Johnson, huge factors are the odds of winning, the relative cost of the prosecution and the degree of the community pressure, thus indigent defendants are relatively good bets for district attorney considering the possibility of asking for the death penalty (Johnson pp). Several studies have found that the race of the murder victim influences the decision whether to seek the death penalty, but Johnson claims that the wealth of the victim is equally relevant (Johnson pp). Thus Johnson is convinced that murder victims who are poor, regardless of their race, are afforded an unequal, second-class status (Johnson pp).

In the March 22, 1993 issue of Social Justice, David Baker notes that race is one of the characteristics during the last fifty years that has distinguished death penalty proponents from death penalty opponents (Baker pp). One 1988 study observed that public support for the death penalty is linked to personality characteristics such as racial prejudice (Baker pp). Other studies have shown that opposition by white persons to school busing for racial equality is strongly associated with their support for capital punishment (Baker pp). Some have suggested that white persons' support of punitive measures, such as the death penalty, is a reflection of their racial prejudice toward African-Americans, while others have suggest that white persons support the death penalty because they believe it to be the best deterrent to criminal actions committed by African-Americans (Baker pp). Thus, these studies suggest that public support for the death penalty is not color blind, and also suggest that white persons' support for the death penalty is a form of symbolic racism (Baker pp).

Baker's study found similar findings that suggest that white racial prejudice is expressed symbolically in the support of capital punishment by white persons (Baker pp). Their finding suggests that white persons support capital punishment because it serves as an outlet for expressing anti-African-American attitudes (Baker pp). For example, Baker's results show that there is no statistically significant relationship between fear of criminal victimization and support for the death penalty, thus the white respondents in his study did not support the death penalty of fear regarding criminal victimization (Baker pp).

However, Jennifer Harry reports in the December 01, 2000 issue of Corrections Today that 66% of Americans support the death penalty in theory, but that public drops to around 50% when voters are offered the alternative of life without parole (Harry pp). According to a 2000 Reuters-Zogby poll, African-Americans and Hispanics support the death penalty in particularly for heinous crimes, and according to international polls, there is strong support among member of minority groups (Harry pp). Of the 734 Hispanics surveyed, 59.6% strongly supported the death penalty and 13.3% supported it somewhat compared to just 6.4% who were somewhat opposed and 15.8% who were strongly opposed (Harry pp). According to another survey, a solid 70.5% endorsed the death penalty, yet support dropped to 66.4% among Hispanics and dropped to 47.3% among African-Americans, with 43.3% of African-Americans voicing opposition (Harry pp). Some 28.3% of the 607 people questioned said they would replace the death sentence with a mandatory life sentence without parole, while 60.8% would not replace it and the remainder did not respond (Harry pp). Fifty-one percent of African-Americans favored replacing the death penalty, while 36.4% would not (Harry pp). Harry reports that a majority of all the other groups polled, "men and women of varying ages, with different educational backgrounds, in different income groups, both union and nonunion and Republicans and Democrats, favored keeping the death penalty" (Harry pp).

In the June 01, 2000 issue of the Yale Law Journal, Ian Lopez defines racism as follows: "Racism is racial status-enforcement undertaken in reliance on racial institutions" (Lopez pp).

He defines racial institutions as "any understanding of race that has come to be so widely shred within a community that it operates as an unexamined cognitive resource for understanding one's self, others, and the way the world is" (Lopez pp). Racial status enforcement refers to action that has the effect of enforcing a racial status hierarchy, and such may enhance or degrade a racial group's social position and may take material or symbolic forms (Lopez pp).

Yet as Barry Latzer points out in the June 22, 2001 issue of the Albany Law Review, "for millennia, mankind has sought an ideal criminal justice system in which the punishment will be perfectly suited to the crime and all of the deserving will be treated alike" (Latzer pp). And although a worthy goal, it is a standard that is hopelessly unrealistic, because no distribution of penal sanctions can meet such a test (Latzer pp). However, the death penalty is often said to be different enough from other punishments to warrant higher standards, yet there is no reason to expect that death penalties could or should be meted out more equally than all other sentences (Latzer pp). According to Latzer, "such a demand for equal justice is as pernicious as it is pointless, since the remission of deserved death sentences undermines retributive justice" (Latzer pp).