Unacceptable racial bias persists in capital punishment

Jake Moore/Staff

Almost 40 years since the Supreme Court relegitimized the death penalty; almost 30 since they said it’s OK that it’s racist.

Sometime soon in the 31 states that have not abolished the death penalty, leaders at the highest levels of state government, men and women — mostly men and mostly white — will hold private, closed-door meetings, in which they will discuss the most secretive, most cost-effective, most media-friendly way to go about killing one, or more, of its citizens. Study after study shows that, more likely than not, this majority-white group of deathly decision-makers will be planning the killing of a man or a woman, though usually they’re a man, and usually they’re a black man.

These macabre meetings focused on sharpening the states’ machinery of death have been going on ever since the 1976 U.S. Supreme Court decision in Gregg v. Georgia. Gregg relegitimized and restarted the wheel of state-sanctioned death — a wheel that stopped spinning four years earlier, in 1972, when in Furman v. Georgia, the high court declared Georgia’s death penalty statute — and by implication the death penalty statutes of 40 other states — unconstitutional; the court held in Furman that the way the states were allowing juries and judges to decide who lives and who dies violated the Eighth Amendment’s prohibition of cruel and unusual punishment.

But just four years later, after the Gregg decision sanctioned the states’ newly rewritten death penalty statutes, the wheel of death started spinning again. And ever since, overwhelmingly, the condemned strapped to that wheel — or gurney, quite literally — have been poor persons of color; most often their legal representation has been atrocious. Read famed capital defense attorney and Yale law professor, Stephen B. Bright’s disturbing article, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,” if you have any doubt about that.

Even more repugnant though, study after study shows that the poor, probably black, death row inmate will have landed on death row because he killed someone white. The most famous of these studies, the “Baldus” study, an extremely well-respected empirical study published in 1983, showed that even after taking into consideration 39 nonracial variables, defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. The study also concluded, as quoted by Justice Lewis Powell’s decision in McCleskey v. Kemp, that “black defendants were 1.1 times as likely to receive a death sentence as other defendants.”

That has to be unconstitutional, doesn’t it? It’s an Equal Protection Clause violation, right? Part of the 14th Amendment to the U.S. Constitution, the Equal Protection Clause, which took effect in 1868, after the Civil War, provides that no state shall deny to any person, including a person of color, “the equal protection of the laws.” If, as the Baldus study convincingly showed, a defendant is more likely to get the death penalty solely because the victim was white instead of black, that would be a per se violation of the Equal Protection Clause, right?

Wrong. In a decision that New York University School of Law professor and celebrated Supreme Court advocate Anthony G. Amsterdam called “the Dred Scott decision of our time,” the court held that because defendant McCleskey, a black man, could not specifically prove “purposeful discrimination” had a discriminatory effect on him in his trial — the Baldus study his lawyers presented to show that the death penalty was racist, and whose findings the court notably did not dispute — were irrelevant.

McCleskey was executed in 1991. Beforehand he said, “I pray that one day this country, supposedly a civilized society, will abolish barbaric acts such as the death penalty.”

Twenty-four years have passed since McCleskey’s last words, but still the majority-white death councils convene and still, even 24 years later, even with a black president in the White House, their top quarry remains the poorest, darkest, worst-represented defendants.
When will it end?

When will African-Americans, white Americans and Americans of all colors demand that each and every politician they elect take action, and take action now, to put a stop to it?


Stephen Cooper is former D.C. and federal public defender. 

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  • justman7

    But what about the gender bias? What percentage of female convicted murderers and spouse-killers get the death penalty? And actually have it carrreied out?

  • George Edgar Worley


  • lspanker

    Given that blacks commit murder at a disproportional rate than whites or Asians, why should we be shocked that blacks are more likely to wind up on Death Row as well?

    • peepsqueek

      You are correct in that the math is clear. I would like see the death penalty for manufactures who illegally dump carcinogenic waste that gets into local drinking water and ground water that kills significant amounts of people every year with cancer. And I could think of a dozen other crimes that I would like to see the death penalty, as far too many innocent people die as a result of willful distributing of bad products, shoddy work on structures, violations of the clear air act, clean water act, WallStreet criminals and IRS criminals that cause hard working American families to lose every penny they have saved, etc.

      • JohnFHudson

        PG&E used a rate increase it received from Jerry Browns friends on the PUC for dividends and executive bonuses. That rate increase was supposed to be used for maintenance. Then PG&E blew up an entire neighborhood in San Bruno and killed 8 of the residents. Nobody from PG&E went to prison. The San Mateo County district attorney failed to prosecute.

  • earlrichards

    See, http://www.nospank.net. It should be against the law for adults to hit small children.

  • M2000

    The typical race card…what happens when the executioner, the arresting officer are all the same race??? You guys really want to then discuss race as the issue then with the death penalty?

    • peepsqueek

      To add to that point: I used to live in a high street crime area of Los Angeles and the victims, mostly minorities, would certainly like to see more aggressive policing and harsher sentencing for the perpetrators of violent crimes, especially the career criminals and repeat offenders, regardless of race, color, or national origin.

      • M2000

        And yet….the political elite help the criminals….

  • c.farrell

    Headline incorrect — capital, not corporal. They are entirely different things

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