Retired Supreme Court Justice: Capital Punishment ‘Shot Through with Racism'

Posted by: Jessie

http://www.racismreview.com/blog/

The New York Times is reporting that retired Supreme Court Justice Stevens has
written an essay that offers a devastating critique of the death penalty as “shot
through with racism.”  In a detailed, candid and critical essay to be published soon
in The New York Review of Books, Stevens wrote that personnel changes on the court,
coupled with “regrettable judicial activism,” had created a system of capital
punishment that is “shot through with racism, skewed toward conviction, infected
with politics and tinged with hysteria.”  While other justices (e.g. O’Connor and
Souter) have offered some commentary since retiring, their rather abstract
discussions of legal issues is, apparently, nothing like the blow-by-blow critique
in Justice Stevens’ death penalty essay, which will be published in The New York
Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.


In 2008, two years before he announced his retirement, Justice Stevens reversed
course and in a concurrence said that he now believed the death penalty to be
unconstitutional.  But the reason for that change of heart, after more than three
decades on the court and some 1,100 executions, has in many ways remained a mystery,
and now Justice Stevens has provided an explanation.  He will also be on “60
Minutes” on Sunday night.
The essay is actually a review of the book Peculiar Institution: America’s Death
Penalty in an Age of Abolition, by David Garland, a professor of law and sociology
at New York University. The book compares American and European approaches to the
death penalty, and in the essay Stevens appears to accept its major conclusions.
Garland attributes American enthusiasm for capital punishment to politics and a
cultural fascination with violence and death.  According to the New York Times
article, Stevens notes that the problems with the administration of capital
punishment extend beyond the courthouse and into the voting booth.  Referring to the
“race-based prosecutorial decisions” allowed by the 1987 McCleskey v. Kemp, ruling
that even solid statistical evidence of racial disparities in the administration of
the death penalty did not violate the Constitution, Stevens wrote:

“That the murder of black victims is treated as less culpable than the murder of
white victims provides a haunting reminder of once-prevalent Southern lynchings.”
This bold move by a retired Supreme Court Justice is good news for those concerned
with the injustice of capital punishment.







Categories : criminal justice, death penalty, new jim crow
Comments (2)



Apr
18

Race and the Death Penalty, IV: ResourcesPosted by: admin | Comments (1)
In this last post of our four-part blog series on race and the death penalty, we*
would like to provide you with some additional links.  As our series this week
illustrated, the death penalty today looks very much the same as in the past. If you
would like to learn more about race and the death penalty, please visit:

The Innocence Project
Death Penalty Information Center
The Sentencing Project
American Civil Liberties Union: Race and the Death Penalty
Amnesty International Death Penalty and Race
While the death penalty has undergone what some would call a legitimacy crisis in
recent years with issues of innocence and cost becoming prominent, we argue that we
should still pay attention to issues of racial bias.
~ *We are a group of four sociology students studying the death penalty in Danielle
Dirks’ “Capital Punishment in America” undergraduate course at University of
Texas-Austin.  This is the first post of our four-part blog series on race and the
death penalty. Please read and feel free to comment or ask questions. Thank you for
your time!







Categories : criminal justice, death penalty, links, race, racism
Comments (1)



Apr
18

Race and the Death Penalty, III: Troy Anthony Davis and the Denial of JusticePosted
by: admin | Comments (9)
In many ways, the story of racial injustice and the death penalty in the U.S. can be
summarized in the story of Troy Anthony Davis.
On the night of August 19, 1989, an off-duty police officer, Mark MacPhail, was shot
and killed. The events leading to his death are quite unclear.  Eyewitness accounts
and testimonies have been altered and recanted. However, the story was reported as
follows: Standing outside a Burger King in Savannah, Georgia, a black man, Sylvester
“Redd” Coles was seen harassing a homeless man for beer. Coles continued to harass
the homeless man and followed the man to a nearby parking lot. Several bystanders,
including Troy Anthony Davis, followed the scuffle. Coles was overheard threatening
to shoot the homeless man and seen hitting him over the head with a gun. Hearing the
homeless man’s cries for help, MacPhail responded to the scene. While responding to
the fight, a .38 caliber revolver set off ultimately killing officer MacPhail.
At first, witnesses had a hard time identifying the shooter as the scene was not
well lit, and two men present, Coles and Davis, appeared similar in appearance to
many.  Soon after the shooting, Coles confronted the police to tell his version of
events and implicate Davis. Unaware that he was accused of a crime, Davis went to
Atlanta in search of job opportunities. Davis’ trip appeared to police like an
attempt to flee the scene of the crime and an admission of his guilt.

(Protesters hold images of Davis, from here)
During the day on August 19, 1989, another shooting occurred at a party where both
Coles and Davis were present. At this scene, Coles was overheard arguing with the
victim. Shell casings from both scenes revealed that the same firearm had been used
in both shootings. Despite the mounting evidence against Coles, his belongings were
never searched, and he was never questioned as a suspect in either crime. Davis was
deemed guilty and put on trial. There was never an investigation into his part in
the crime, and he was never questioned as a suspect.
Here is where things get even messier…

Police never corroborated Coles’ story.
Without performing an investigation, Davis’ picture was broadcast on TV along with
proclamations that he was a cop killer.
Coles’ picture was not included in a photo lineup for witnesses.
Seven out of nine witnesses have recanted their testimonies citing coercion,
threats, and police pressure. Eyewitness recantations include the following: Dorothy
Ferrell told police that she saw nothing, yet testified falsely.  Ferrell later told
the public that she felt “compelled to identify Mr. Davis because she was on parole.
[A detective] showed Ms. Ferrell only one photograph and suggested she should
[identify Davis]” [link opens PDF]. Darrell Collins was 16 at the time of his
eyewitness testimony to the police.  The police threatened him with jail time if he
did not identify Davis as the shooter.  Collins, afraid of being sentenced to jail
time, then knowingly falsely identified Davis.
One of the individuals who has not recanted his testimony is the primary alternative
suspect.
At the time of Davis’ habeas corpus petition, Congress cut funding to
post-conviction defender organizations, such as the one representing Davis.
Therefore, Davis lost the majority of his defense and evidence of recantations and
other new evidence was never discovered or heard by a jury.
The case of Troy Anthony Davis offers insight into the kind of injustices that a
person of color faces in the criminal justice system. To learn more about upcoming
proceedings in the Davis case, and to take action on his behalf, please visit:

Amnesty International’s Justice for Troy Campaign
NAACP’s I am Troy Davis Campaign
Troy Anthony Davis’ Legal Case
With the mounting evidence of Davis’ innocence, why does he still sit on death row?
We ask several questions for readers here:

If Davis were a white man, would police have produced a thorough investigation?
If Davis were a white man, would his pleas of innocence be taken more seriously?
If Davis were a white man, would he be provided with fair and adequate treatment by
the police/justice system?
~ *We are a group of four sociology students studying the death penalty in Danielle
Dirks’ “Capital Punishment in America” undergraduate course at University of
Texas-Austin.  This is the first post of our four-part blog series on race and the
death penalty. Please read and feel free to comment or ask questions. Thank you for
your time!







Categories : criminal justice, death penalty, race, racism
Comments (9)



Apr
17

Race and the Death Penalty, II: Black Defendants, White VictimsPosted by: admin |
Comments (15)
This is the second part of a four-part series on the most common death penalty
cases: those involving black defendants and white victims. In this post, *we explore
some of the research about the racial dynamics in this type of death penalty case.
Most crime is intra-racial, that is it happens among the same racial group. The
majority of homicides of whites are perpetrated by other whites, the majority of
homicides involving black victims are perpetrated by other blacks.
Yet, despite this statistical fact, the black defendant/white victim has the highest
chance of being selected for a death sentence.   One study in the midwest found that
prosecutors are 2.5 times more likely to seek the death penalty when a black
defendant kills a white victim.
One factor that may be influencing the death penalty decision is the race of the
prosecutor.  According to a study conducted by Professor Jeffrey Pokorak of St.
Mary’s University School of Law, the racial breakdown of District Attorneys in death
penalty states is as follows: 97.5% whites, 1.2% black, and 1.2% Hispanic. There is
no absolute way to show that because the majority of District Attorneys in America
are white, they are racist against blacks. However, prosecutorial discretion studies
illustrate racial patterns in cases where death sentences are sought.
Another factor that researchers have examined is the race of the jury pool.  In
cases involving a black defendant and white victim, having five white males on the
jury doubles the chance that the death penalty will be imposed [opens PDF].  Having
just one black man on a capital jury cuts the chance of a death sentence in half
[opens PDF].  In addition to the composition of the jury pool, the prejudice of
jurors’ may also play a role in who gets the death penalty.
One study found that defendants who were perceived as looking more “stereotypically
black” (i.e., having darker features) more than doubles the chances of being
sentenced to death in capital cases involving white victims.
Our question for readers here: Do we – as a society – value the lives of black and
white victims differently?
~ *We are a group of four sociology students studying the death penalty in Danielle
Dirks’ “Capital Punishment in America” undergraduate course at University of
Texas-Austin.  This is the first post of our four-part blog series on race and the
death penalty. Please read and feel free to comment or ask questions. Thank you for
your time!







Categories : criminal justice, death penalty, race, racism
Comments (15)



Apr
17

Race and the Death Penalty, Part I: Who Gets the Death Penalty in America?Posted by:
admin | Comments (7)
The history of the death penalty in America is a history about race. While African
Americans comprise approximately 11 percent of the U.S. population, they have
constituted half (50%) of all the people executed in the U.S. since 1800. In this
post, we* begin this series by exploring racial disparities in death sentencing and
executions historically and today in the U.S.
Controlling for a variety of legal and extralegal factors, studies continue to show
that race of the victim is the single-most statistical factor in deciding who gets
sentenced to death and who gets executed.  The most active death penalty states
today are those where the most lynchings occurred historically (e.g., Virginia, the
Carolinas, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas).   See
Jacobs, et al., “Vigilantism, Current Racial Threat, and Death Sentences,” American
Sociological Review (2005) 70: 656-677.
There is evidence that a defendant accused of killing a white person is more likely
to receive a death sentence than a defendant accused of killing a black person,
especially if the defendant is black, for example:

Prior to Furman v. Georgia (1972), black defendants were 12 times more likely to
receive a death sentence than white defendants. See Baldus, Pulaski and Woodworth,
Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,
74 J. Crim. L. & Criminology 661 (1983).
Black defendants are nearly four (3.9) times more likely to receive a death sentence
than white defendants.  See Richard C. Dieter, The Death Penalty in Black and White:
Who Lives, Who Dies, Who Decides, Report, Death Penalty Information Center, June,
1998.
Defendants accused of killing a white victim are 4.3 times more likely to receive a
death sentence than defendants accused of killing a black victim.  See See Baldus,
Pulaski and Woodworth, Comparative Review of Death Sentences: An Empirical Study of
the Georgia Experience, 74 J. Crim. L. & Criminology 661 (1983).
In an examination of death penalty rates among all death-eligible defendants in
Philadelphia, Pennsylvania between the years of 1983 and 1993 demonstrated that the
odds of receiving the death penalty in Philadelphia increased by 38% when the
accused was a black person.  D. Baldus, et al., Race Discrimination and the Death
Penalty in the Post Furman Era: An Empirical and Legal Overview, with Preliminary
Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998).
There is also evidence that racial disparities exist not only in who gets sentenced
to death, but who is executed, for example:

Between 1976 and 1990, only 15 white defendants were executed for killing a black
victim while 283 black defendants were executed for killing white victims.  See this
U.S. Government report [opens PDF].
It was not until 1999 that a white person was sentenced to death for killing a black
person in Texas in the case of James Byrd.
Defendants of color who have killed white victims have significantly higher chances
of being executed than other capital defendants.  See Jacobs et al., “Who Survives
on Death Row? An Individual and Contextual Analysis,” American Sociological Review
(2007) 72: 610-632
The questions we invite readers to ponder are these: Is capital punishment in the
United States a racially fair system?  Are you persuaded by the evidence we’ve
presented here?
~ *We are a group of four sociology students studying the death penalty in Danielle
Dirks’ “Capital Punishment in America” undergraduate course at University of
Texas-Austin.  This is the first post of our four-part blog series on race and the
death penalty. Please read and feel free to comment or ask questions. Thank you for
your time!







Categories : criminal justice, death penalty, racism
Comments (7)



Apr
17

Death Penalty: Four Part SeriesPosted by: Danielle Dirks | Comments (1)
I teach “Capital Punishment in America,” an undergraduate course offered through the
Department of Sociology at The University of Texas at Austin. This semester, I have
asked the students in the class to engage social media as a way to broaden our class
discussion about the death penalty.   I approached Joe and Jessie about hosting part
of this discussion here, and they kindly agreed to feature some of the students’
work on Racism Review.
Following this is a four-part blog series on race and the death penalty, each post
written by a group of four students interested in the idea of racial disparities and
the death penalty.  Part of the goal of this exercise is to generate discussion with
people outside the class, so please be sure to comment.
As many Racism Review readers are aware, the death penalty has long been fraught
with issues of racial bias and discrimination. While there have been attempts to
improve the fairness of the system, the students’ blog posts will illustrate that we
still have a long way to go when the state kills.
~ Danielle Dirks, PhD Candidate, Department of Sociology, University of Texas-Austin







Categories : criminal justice, death penalty, law, race, racism
Comments (1)



Jan
06

Systemic Racism & the “Race to Execution”Posted by: Jessie | Comments (4)
The New York Times reported recently that a leading group, The American Law
Institute, which created the intellectual framework for the current system of
capital punishment almost 50 years ago, pronounced the project a failure and walked
away from it (h/t to Sister Scholar).  Even though there were other important
changes in news about the death penalty last year, including that the number of
death sentences continued to fall, Ohio switched to a single chemical for lethal
injections and New Mexico repealed its death penalty entirely,  but none of these
changes was as significant as the institute’s move, which represents “a tectonic
shift in legal theory.”  The WSJ has more analysis of this issue here, suggesting
we’re the throes of an upheaval in the administration of the death penalty.
We write here often about systemic racism and what that means.  For compelling
evidence about how race is built in to the very fabric of U.S. society, one needn’t
look much further than the evidence about the race and the death penalty.    Race is
the single greatest factor in who lives and who dies when it comes to death penalty
cases. A black defendant who kills a white victim is up to 30 times more likely to
be sentenced to death than a white defendant who kills a black victim.
The imposition of the death penalty is even more likely when there is a black
defendant and a predominantly white jury.  Most minority defendants, especially in
death penalty cases, are judged by predominantly white jurors.   White male jurors
can be especially persuasive in death penalty cases.  Researcher Bowers, Steiner and
Sandys (2001) analyzed cases in which a black defendant was accused of murdering a
white victim found that the racial composition of the jury matters in death penalty
cases.  Once the proportion of white male jurors reaches 70%, the death penalty is
far more likely.
The U.S. Supreme Court took this kind of data into consideration when it ruled in
1972 in the Furman v. George case and struck down the death penalty as “arbitrary
and capricious.”  Then, in 1987, the Supreme Court ruled again on the death penalty.
In the McCleskey v. Kemp case, the court refused to overturn an individual decision
to execute a particular man solely based on the bias in the system.   Basically,
what the Supreme Court basically decided that it didn’t want to look at the
“statistics about race” because it wouldn’t consider the social science evidence in
the case.  The evidence, had they considered it,  overwhelmingly showed a pattern of
racial bias in who lives and who dies in death penalty cases.
instead, what the Supreme Court was suggesting was that they wanted to look at
whether race played a role in each individual case, not at systemic racism.   In
some ways, what the Supreme Court was doing with this case was rejecting social
science in the law and declaring that racial inequality is ineradicable and
inevitable.
This is where the The American Law Institute comes in. They were attempting to “fix”
what had been broken with the 1987 McCleskey v. Kemp decision, and see if there was
some way to administer the death penalty in way that didn’t just reinforce racial
discrimination already in place.  Now, the organization has decided to abandon the
project and admitted it was a failure.  Another way of looking at this news is that
this is further evidence that the death penalty is deeply, systematically racist and
should be abolished.  

There is a powerful documentary that tells this story in a fresh way called “Race to
Execution” and it’s directed by Rachel Lyon, narrated by Charles Ogletree. While
it’s been out a couple of years now, it recently re-aired on my local PBS station
and I was moved by it once again.   It’s a really powerful, and nuanced, telling of
human stories of those affected by the death penalty interwoven with the court cases
and social science research about race and the death penalty.  (If you’re
considering it for the classroom, there is lots of great additional material here.)
If race is the single greatest factor in who lives and who dies, and now the leading
legal organization in the nation has admitted defeat in trying to change that, isn’t
it time to abolish the death penalty and put an end to state-sponsored racism?