Death penalty and systematic racism
"We simply cannot say we live in a country that offers equal justice to all Americans when racial disparities plague the system by which our society imposes the ultimate punishment." --Senator Russ Feingold on Civil Rights as a Priority for the 108th Congress, Senate, January 2003
Mass incarceration has recently become a topic in the media when the documentary 13th, that was nominated for an Oscar, was released. The film showed the connection between color and the likelihood of incarceration and revealed possible reason how race and sentences are linked to each other. But what about the most extreme form of juridical punishment, the death penalty? Is there also a connection between race and capital punishment?
The race of the victim
The Non-governmental organization Amnesty International published a graph that shows how many people have died due to death penalty since 1977. Moreover, they divided the people according to their nationality. One thing is immediately striking when looking at the data: The majority of people being on death row have killed a white person although Blacks make up half of all victims of murder. Thus, „prosecutors are more likely to seek a death sentence when the race of the victim is white and are less likely to seek a death sentence when the victim is African-American“ (AI1 2017). Concluding, the race of the victim is an indicator for the punishment. It is highly racist if the live of a white person is valued more and as a consequence the defendant is more likely to be sentenced to death. Although the annual death sentences are declining since 2000, a link between the punishment and race can still be found, as various studies revealed.
McCleskey vs. Kemp
In 1987 Warren McCleskey who was on death penalty argued against his punishment by revealing that death penalty candidates are statistically more likely to be black. The trial took place in Georgia and became famous as the case McCleskey vs. Kemp. The black defendant was accused of robbery and murder. His victim was a white police officer. Although he argued on the basis of a renowned study, the Supreme Court claimed that there is just one way to prove that death sentences are motivated by racism: the judge has to admit explicitly that his decision were tainted by racism. This is obviously very unlikely to happen. Thus, statistical evidence alone is not enough to stop an execution, what was intended in the case McClesky vs. Kemp. Even though the Supreme Court found the Baldus Study that served as the proof valid, it is not accurate and reliable enough when it comes to an individual's decision. The study was published by the law professor David Baldus whose major topic of investigation is race and capital punishment. He revealed for instance that death sentences are 4 times higher if the defendant is black. A possible explanation for that is provided by professor Jeffrey Pokorak who works at St. Mary's University Law School in Texas. He found out that 99% of the judges who are in charge in those countries using the death penalty are white men.
Since this Supreme Court decision it is “unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender” (DPIC2 2017).
More statistical evidence of the link between race and death penalty
1 AI stands for Amnesty International
2 DPIC stands for Death Penalty Information Center
Empirical studies have also proven that racism appears in 96% of the cases where the defendant was sentenced to die. Therefore similar crimes of Blacks and Whites were compared to each other. Either race-of-victim or race-of-defendant discrimination appeared. All this statistic evidence is said not to be enough when an individual defendant wants to prove that in his case the decision is influenced by discriminatory views of the judge. “The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors.” (DPIC 2017). A Californian study confirmed what Pokorak and Baldus already found out: a black person who murders a white victim is very likely to be sentenced to death whereas black-on-black crimes are punished softer.
California voted for death penalty in 2016
In 2016 inhabitants in California had the chance to vote for or against the death penalty. The aim of proposition 62 was to replace capital punishment with life without parole. But Californians voted against prop62 and favored instead prop66 which aims to fasten the process of an execution. The initiative prop62 argued not only on the basis of human rights but also listed the high costs for tax payers. There are 750 people on death row in California since the 1970s but there have only been 13 executions during these last 47 years. Therefore, the state spends about $150 annually on these prisoners. The main argument that was put forward in this case from the prop62 supporters were the high costs that were spent on these inmates, even though nobody was killed since 2006. This state ballot clearly reflects people's opinion on this case. It was supposed that anxiety and fear which is spread by politicians could have influenced peoples' decisions.
Many statistics gave evidence to the systematic racism that is present throughout the whole legal system in the USA. It is moreover astonishing that when people, such as the Californians in the last year, have the choice to vote against death penalty they are reluctant to do so. Or more precisely the majority is still in favor of an execution as an appropriate punishment. Regardless of all the philosophical questions that arise in general, when talking about death penalty, should the fact of taunted racist decision in whose going to live and whose going to die be enough to get rid of it. African Americans are four times likelier to be sentenced to death than Whites. This fact alone is alarming and should make people consequently vote against capital punishment. The case of McCleskey vs. Kemp clearly showed that even though there is statistical evidence of racist decisions by judges, the system is not going to be changed easily. In a survey among legal scholars which was published in the Los Angeles Times in 2008 McCleskey vs. Kemp was named as being one of the worst Supreme Court decisions since the Second World War (LAT3 2017). If an African American killed a white person, he is most likely to be executed. If we swap the color of defendant and victim, so if a white person kills an African American, he most likely get a more moderate sentence (DPIC 2017).
Baldus, David C.; Pulaski, Charles A.; Woodworth, George (1990). Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press.
Death Penalty Information Center
17.03.2017 Retrieved from: http://www.deathpenaltyinfo.org/node/2245Death Penalty and Race: Race of Homicide Victims in Cases Resulting in an Execution since 1976
20.03.2017 Retrieved from: http://www.amnestyusa.org/our-work/issues/death-penalty/us-death- penalty-facts/death-penalty-and-race
3 LAT stands for The Los Angeles Times
Race and the Death Penalty: “Just a Bunch of Racists”?
20.03.2017 Retrieved from: http://blog.amnestyusa.org/us/race-and-the-death-penalty-just-a-bunch- of-racists/
McCleskey v. Kemp 481 U.S. 279 (1987)
20.03.2017 Retrieved from: https://supreme.justia.com/cases/federal/us/481/279/case.html
Race and Death Penalty Juries
20.03.2017 Retrieved from: http://www.nytimes.com/2012/02/06/opinion/race-and-death-penalty- juries.html
California Voters Face Choice: End Death Penalty, or Speed It Up
19.03.2017 Retrieved from: https://www.nytimes.com/2016/09/21/us/california-voters-face-choice- end-death-penalty-or-speed-it-up.html?_r=0
California Today: Why Californians Kept the Death Penalty
19.03.2017 Retrieved from: https://www.nytimes.com/2016/11/11/us/california-today-death- penalty-vote.html
The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides
20.03.2017 Retrieved from: http://www.deathpenaltyinfo.org/death-penalty-black-and-white-who- lives-who-dies-who-decides
Racism and the Execution Chamber: The national death-row population is roughly 42 percent black—nearly three times the proportion in the general population.
20.03.2017 Retrieved from: https://www.theatlantic.com/politics/archive/2014/06/race-and-the- death-penalty/373081/
Fact Sheet: Death Penalty Information Center
19.03.2017 Retrieved from http://www.deathpenaltyinfo.org/documents/FactSheet.pdf