Race

Bryan Stevenson Puts the Charleston Massacre and the Use of the Death Penalty in Historical Context

In an interview with The Marshall Project, Bryan Stevenson (pictured), director of the Equal Justice Initiative and author of Just Mercy, discussed the role the history of slavery, lynchings, and racial terrorism in the South played in the racially-motivated killings of nine black people in an historic black church in Charleston, South Carolina. In the interview, Stevenson described the historical use of the death penalty as a tool to reinforce a racially discriminatory social order. This, he says, is manifest in race-of-victim disparities in death penalty cases: "In Alabama, 65% of all murder victims are black, but 80% of all death sentences are imposed [when victims] are white. And that’s true throughout this country. We’ve used it particularly aggressively when minority defendants are accused of killing white people."  Occasionally, he says, states will seek the death penalty for a white man accused of a racially-motivated murder, masking the need for an open and honest discussion of this country's race problems. "You'll see lots of people talking enthusiastically about imposing the death penalty on this young man in South Carolina. But that’s a distraction from the larger issue, which is that we’ve used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people." Given its historical legacy as tool of racial oppression, Stevenson urges the abolition of the death penalty, saying, "If I were the governor of South Carolina, I’d say: 'We’re going to abolish the death penalty, because we have a history of lynching and terror that has demonized and burdened people of color in this state since we’ve became a state.'...And I think every southern governor should do the same. That’s when you’d get the different conversations starting in this country. Then you might get some progress."

As Court Prepares to Hear Juror Exclusion Case, A Look at Tactics That Exclude Blacks from Juries

This fall, the U.S. Supreme Court will hear a Georgia case, Foster v. Humphrey, in which an all-white jury sentenced a black man to death after prosecutors struck every black prospective juror in the case. The Court will determine whether prosecutors violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. In anticipation of the case, The New Yorker published an analysis of tactics used to evade Batson challenges by providing race-neutral reasons for striking jurors. In Philadelphia, a training video told new prosecutors, "When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. . . . You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race." In the 1990s, prosecutors in North Carolina -- whose use of peremptory strikes have been held to violate that state's Racial Justice Act -- held training sessions featuring a handout titled, "Batson Justifications: Articulating Juror Negatives." Defense attorneys can challenge these reasons, but such challenges are rarely successful. Stephen Bright, president of the Southern Center for Human Rights, who is representing Foster, said, "You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it. That’s very difficult psychologically for the average judge.” Justice Thurgood Marshall recommended banning peremptory strikes so as to stop racial bias in jury selection. Louisiana Capital Assistance Center director Richard Bourke suggests a more politically realistic reform: track the racial makeup of juries in order to raise public awareness of bias.

NEW VOICES: Kareem Abdul-Jabbar Urges Abolition of Death Penalty

In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."

Supreme Court to Review Exclusion of Black Jurors in Georgia Capital Case

The Supreme Court has agreed to hear the case of Timothy Foster, an African-American defendant who was sentenced to death by an all-white jury after Georgia prosecutors had struck every black prospective juror in his case. On May 26, the U.S. Supreme Court granted review in Foster v. Humphrey to determine whether the prosecution’s actions violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. Foster challenged the prosecution’s jury strikes as racially discriminatory at the time of jury selection, but the trial court permitted the strikes. Nineteen years after the trial, his lawyers obtained the prosecutors' notes from jury selection, which contained information that contradicted the “race-neutral” explanations for the strikes that the prosecution had offered at trial. 

INNOCENCE: Anthony Ray Hinton Exonerated After 30 Years on Alabama's Death Row

Anthony Ray Hinton (pictured, l.) has been exonerated after spending nearly 30 years on Alabama's death row. He will be released on April 3. Hinton was convicted of the 1985 murders of two fast-food restaurant managers based upon the testimony of a state forensic examiner that the bullets in the two murders came from a gun found in Hinton's house. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton was arrested after a victim in a similar crime identified him in a photo lineup, even though Hinton had been working in a locked warehouse 15 miles away when that crime was committed. Hinton's lawyer did not know the law and mistakenly believed that funding to hire a qualified firearms expert was not available.  Instead, he hired an expert he knew to be inadequate, and as a result failed to present any credible evidence to rebut the state's claim that the bullets were fired from Hinton's gun. In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from the a single gun at all. Last year, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings.  Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Bryan Stevenson (pictured, r.), Hinton's lead attorney, said, “Race, poverty, inadequate legal assistance, and prosecutorial indifference to innocence conspired to create a textbook example of injustice. I can’t think of a case that more urgently dramatizes the need for reform than what has happened to Anthony Ray Hinton.” Hinton is the 152nd person exonerated from death row since 1973, the second in 2015, and the sixth in Alabama.

LAW REVIEW: "The American Death Penalty and the (In)Visibility of Race"

In a new article for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School examine the racial history of the American death penalty and what they describe as the U.S. Supreme Court's "deafening silence" on the subject of race and capital punishment. They assert that the story of the death penalty "cannot be told without detailed attention to race."  The Steikers' article recounts the role of race in the death penalty since the early days of the United States, including the vastly disproportionate use of capital punishment against free and enslaved blacks in the antebellum South and describes the racial and civil rights context in which the constitutional challenges to the death penalty in the 1960s and 1970s were pursued. The authors contrast the "salience of race" in American capital punishment law and practice through the civil rights era with the "relative invisibility [of race] in the judicial opinions issued in the foundational cases of the modern era."

STUDIES: Lynchings in America Related to Racial Bias in Death Penalty

A new report from the Equal Justice Initiative (EJI) of Alabama has documented more lynchings in American history than previously reported, particularly of African Americans in the South, and has drawn parallels between this practice and the modern death penalty. According to EJI, the report--titled Lynching in America: Confronting the Legacy of Racial Terror --"makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation." The report draws connections between lynchings and abuses in the criminal justice system that persist today: "[L]ynching reinforced a narrative of racial difference and a legacy of racial inequality that is readily apparent in our criminal justice system today. Mass incarceration, racially biased capital punishment, excessive sentencing, disproportionate sentencing of racial minorities, and police abuse of people of color reveal problems in American society that were shaped by the terror era." (emphasis added). A New York Times editorial about the report made a similar point: "The researchers argue, for example, that lynching declined as a mechanism of social control as the Southern states shifted to a capital punishment strategy, in which blacks began more frequently to be executed after expedited trials. The legacy of lynching was apparent in that public executions were still being used to mollify mobs in the 1930s even after such executions were legally banned."

STUDIES: Death Penalty Overwhelmingly Used for White-Victim Cases

According to a new study principally authored by Prof. Frank Baumgartner of the University of North Carolina, the death penalty is far more likely to be used if the underlying murder victim was white rather than black. The study examined every U.S. execution from 1976-2013 and found, "The single most reliable predictor of whether a defendant in the United States will be executed is the race of the victim....Capital punishment is very rarely used where the victim is a Black male, despite the fact that this is the category most likely to be the victim of homicide." Of the 534 white defendants executed for the murder of a single victim, only nine involved the murder of a black male victim. Although blacks make up about 47% of all murder victims, they make up only 17% of victims in cases resulting in an execution. The authors concluded, "In [the death penalty's] modern history as in its use in previous eras, racial bias in its application is consistently high. In addition to the threat to the equal protection of the law that these numbers suggest, such overwhelming evidence of differential treatment erodes public support for the judicial system."

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