Racial Discrimination and the Death Penalty in America

Introduction: Incarceration and Racial Disparity

The United States Department of Justice Bureau of Justice Statistics reported that at the end of the year 2000 there were 1,381,892 prisoners under the jurisdiction of federal or state adult correctional authorities. During 2000, the prison population rose at the lowest rate since 1972 and recorded the smallest absolute increase since 1980. 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. In 1999, there were 3,527 individuals under sentence of death and 84 executions (State pp).

Donna Coker reports in the Journal of Criminal Law and Criminology that for the past several years, official incarceration data has revealed that African Americans represent roughly half of incarcerated individuals, though they 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 at some point in their lifetime (Coker pp). One study conducted by the Sentencing Project reports that roughly one in three — or 32.2% — of 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 portion 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 1995–2000, some 682 defendants were charged with death-eligible crimes — that is, crimes for which the death penalty was a potential punishment. 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 who subsequently entered a plea agreement that spared them from death penalty prosecution, only twenty-five percent were African American 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 stood in contrast to state death penalty data, where combined state data 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 even 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).

Racial Disparities in Federal Death Penalty Prosecutions

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 proving 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 defendants that exceed even 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 Armstrong 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 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 stated that the number of whites 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 favorably, and then dismissed the evidence proffered by the defendants, claiming that the testimony of the drug counselor and the defense attorney constituted "hearsay and personal conclusions based on anecdotal evidence," and that 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 1998–2000, fifty-one percent of death penalty defendants were African American, 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). 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 had been offered a plea bargain but refused it (Coker pp).

The political discourse surrounding the findings of the 2000 Department of Justice death penalty survey provides further evidence of the difficulty of assigning a reasonable meaning to the term "similarly situated" (Coker pp). The survey prompted 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 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, including 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 straightforward 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 sixty-six capital cases for review, of which fifty-nine involved African Americans, five involved whites, and two involved Hispanics — meaning eighty-nine percent of the defendants were African American, 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 by noting that "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).

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, holding that a defendant must demonstrate both that the prosecutors were motivated by discriminatory intent and that the prosecutors' conduct had a discriminatory effect upon the defendant (Larson pp). Jessie Larson argues 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 that in reaching its conclusion, the Court relied exclusively upon United States v. Armstrong (Larson pp). According to Larson, the Court's absolute reliance on Armstrong was misplaced, 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).

Historical Origins of Racially Biased Criminal Procedure

Michael J. Klarman reports in the Michigan Law Review that 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 only 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 World Wars, 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 to reach that result the Court had to revise the critical "sub-constitutional" 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 death sentences imposed 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). Whites then 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 on a freight train in northern Alabama in the spring of 1931 (Klarman pp). The defendants were tried in a mob-dominated atmosphere, and eight of them received the death penalty, though the state supreme court reversed one of the death sentences on the ground that the defendant was too young to be executed under state law and affirmed the other seven (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 had been 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 black 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 comprising 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 (Klarman pp). Moreover, even at the time of 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). The juries, which excluded any blacks, deliberated for only minutes before imposing death sentences (Klarman pp).

Most conclude that these trials were simply one step removed from lynching — essentially legal lynching (Klarman pp). Reported lynchings had declined dramatically by the 1920s, 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). Arkansas actually enacted a law designed to prevent lynchings by providing for a special term of court in cases of rape or other crimes likely to arouse public passion, stipulating 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 trial (Klarman pp).

Litigation, although it could not spark a social revolution, may have laid the groundwork for future civil rights protests through several distinct objectives (Klarman pp). First, litigation taught blacks that they had rights, though they must fight for their enforcement — as illustrated by the NAACP's political campaign during the interwar 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. This 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). 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). 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 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 has 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 Brown v. Board of Education to stem racial discrimination throughout public institutions (Howe pp).

The Baldus Study and Statistical Evidence of Racial Bias

The quest for racial neutrality in the capital sentencing context has failed, although the primary concern has shifted 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 by study and state, they 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 showing 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 action in the death penalty arena, yet 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 racial disparities in the capital sentencing context is "aberrational" in light of these advances, and some believe that history will rank McCleskey alongside Dred Scott as among the worst majority opinions in Supreme Court history (Howe pp). Those who deny that the study supporting the challenge in McCleskey sufficiently established the influence of racial prejudice 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 contend that these views build on unrealistic demands for certainty, and that 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 explains 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 significant variation in the propriety of the death penalty among potential capital cases and creating the potential for racial bias to affect outcomes (Howe pp).

There are only a small number 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 has also proscribed the penalty for a small number of defendants 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, more recently, those who are intellectually disabled (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 statute includes only certain aggravated murders (Howe pp). In general, however, "death eligibility remains remarkably broad — indeed, nearly as broad as under the expansive statutes characteristic of the pre-Furman era" (Howe pp). This broad application most likely encourages the influence of racial bias, because racial bias probably matters most in cases that are not at the extremes (Howe pp). Categorizing the "deathworthiness" of capital offenders is highly subjective; some researchers have contended that in cases viewed as being in the mid-range of aggravation, racial disparities are pronounced, while in cases at the most-aggravated and least-aggravated extremes, racial disparities are diminished — suggesting 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 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 claim that capital selection is free of racial bias (Howe pp).

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 study found the following death-sentencing rates in various 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)

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, findings supported by the long history of racial bias in the U.S. criminal justice system, the Baldus researchers searched for any latent, legitimate variables that could explain the outcomes. 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 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. They also found that black defendants had a modest advantage over white defendants when all cases were considered, but within the white-victim cases, 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 racial influences seemed to operate mostly in cases in the mid-range of defendant culpability (Howe pp). The Baldus study is considered the most thorough examination of the role of race in capital selection ever 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 1970s, Bowers and Pierce found a high risk of powerful white-victim bias in all three states. Paternoster and Kazyaka found the same 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 controlled for several legitimate case characteristics that could have explained the racial disparities (Howe pp).

Another important study covering a broad range of jurisdictions and also finding 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 1, 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).

Yet another complex and controlled study of prosecutorial discretion conducted in New Jersey found remarkable race-of-victim and race-of-defendant disparities that could not be explained by nonracial variables (Howe pp). Baldus led another study and found significant race-of-victim and race-of-defendant discrimination in capital cases in Philadelphia. Numerous other studies have also found that race influences capital selection, including one in Maryland 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 — 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, 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).

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 statutes were unconstitutional on the grounds that they were administered in an arbitrary and discriminatory manner (Poveda pp).

Tony Poveda points out in 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 from 1608 to 1987, approximately half of those executed were African Americans, while other races comprised another ten percent (Poveda pp). Moreover, lower-status occupations were overrepresented 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 for 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 1, 1999, 35% of those executed in the U.S. were African American, 7% were Hispanic, and 2% were Native American or Asian (Poveda pp). The demographic characteristics of current death-row inmates show an overrepresentation of minorities and the less educated: 42.2% African American, 9.2% Hispanic, and 1.6% Native American or Asian, with roughly more than half having 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 1998 study found that black defendants were 38% more likely than other defendants to receive a death sentence, "even after controlling for crime severity and the defendant's criminal history" (Poveda pp).

Conclusion: Wrongful Convictions and the Call for Reform

The Innocence Project, founded by Barry Scheck and Peter Neufeld, has been responsible for the momentum which has given rise to over 136 exonerations (Coker pp). The Innocence Network, initiated by two law schools, is a network of projects in some thirty-one states, involving law schools as well as individual attorneys (Coker pp). In the year 2000, Scheck and Neufeld analyzed seventy-four exoneration cases in which DNA evidence cleared the person initially convicted of the crime (Coker pp). They determined that the following factors contributed to wrongful convictions in these cases: mistaken eyewitness testimony, 82%; police misconduct, 50%; prosecutorial misconduct, 45%; inadequate defense counsel, 32%; false confessions, 22%; and snitches or informants, 19% (Coker pp). Most troubling was the finding that several of these factors were more pronounced in the conviction of innocent black men — some 55% of exoneration cases involving sexual assaults or murders involved African American male defendants and white victims (Coker pp).

Bryan Stevenson argues that the tolerance of racial bias in the operation of the criminal law increases the risk of wrongful convictions for African Americans suspected or accused of crime (Coker pp). Coker suggests that there should be a comprehensive assessment of the overall impact of criminal justice policies on the well-being of minority communities (Coker pp). The evidence assembled across decades of research, landmark Supreme Court cases, and legislative battles makes clear that racial discrimination in the administration of the death penalty remains a profound and unresolved challenge to the American ideal of equal justice under law.

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