Race

Legal Scholar Says President Obama May Be Close to Opposing Death Penalty

According to Charles J. Ogletree, Jr., a Harvard law professor who taught President Obama and the First Lady when they were law students, the President may be changing his views on capital punishment. Obama has said that he supports executions for "especially horrific" murders, but has also raised concerns about the death penalty. Ogletree said that Obama's recent focus on racial bias in the criminal justice system, as well as declining public support for the death penalty, may drive the President to oppose capital punishment. "He's not there yet, but he's close," Ogletree said. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him." A former strategist for President George W. Bush, Matthew Dowd, recently compared changing public views on the death penalty and same-sex marriage, saying, "Twenty years from now, people that are for the death penalty are going to be in the same place as people that are against gay marriage." In 2014, Obama commented on the death penalty after the botched execution of Clayton Lockett. "In the application of the death penalty in this country, we have seen significant problems -- racial bias, uneven application of the death penalty," he said. A growing body of research supports Obama's statement about racial bias. For example, a study in Philadelphia found that the odds of a jury handing down a death sentence were 29 times higher if the defendant was black, and that murder cases involving a black defendant and a white victim resulted in death sentences at 5 times the rate of cases in which the races were reversed.

STUDY: Missouri Study Finds Significant Racial and Geographic Disparities in Application of Death Penalty

A new study by Professor Frank Baumgartner of the University of North Carolina at Chapel Hill finds stark racial and geographic disparities in the application of the death penalty in Missouri. A majority of Missouri's executions came from just 2.6% of the state's counties, mirroring national trends, as 2% of U.S. counties have produced 52% of all executions since 1976. St. Louis County - the home of Ferguson, Missouri - has carried out more executions than any other Missouri jurisdiction. A person convicted of homicide in that county is three times more likely to be executed than someone convicted of the same crime elsewhere in the state and is 13 times more likely to be executed than for having committed the same crime in neighboring St. Louis City. Baummgartner also found significant racial disparities, particularly relating to the race of victims. Homicides involving white victims were 7 times more likely to result in executions than those involving black victims. Although 60% of murder victims in Missouri are black, 81% of people executed in Missouri had been convicted of killing white victims. Cases involving white female victims were 14 times more likely to result in execution than those involving black male victims. "If left unaddressed, these racial, gender, and geographic disparities may erode judicial and public confidence in the state’s ability to fairly administer the ultimate punishment," Baumgartner concludes. "A punishment that is so arbitrarily and unfairly administered could reasonably be deemed unconstitutional." (Click image to enlarge.)

94.5% of Elected Prosecutors in Death Penalty States Are White

According to a study by the Women Donors Network, 95% of elected prosecutors in the U.S. are white and 79% are white men. An analysis by DPIC of the study's data further shows that, in states that have the death penalty, 94.5% of elected prosecutors are white. In 9 death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington, and Wyoming), 100% of elected prosecutors are white. These numbers reveal that there has been little change from the time of a 1998 study that found that 97.5% of District Attorneys in death penalty states were white. Prosecutors wield significant power in criminal cases, making decisions about whether to accept plea deals and whether or not to seek the death penalty in capital murder cases. This discretion can be a source of racial disparities in sentencing. “What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network. Bryan Stevenson, director of the Equal Justice Initiative, said, “I think most people know that we’ve had a significant problem with lack of diversity in decision-making roles in the criminal justice system for a long time. I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.” (Click image to enlarge)

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.

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