News and Developments 2010: Race

A new study published in the Washington Law Review addresses the racial and geographical disparities in the implementation of the federal death penalty. The study, conducted by G. Ben Cohen, Counsel for the Capital Appeals Project in New Orleans, and Robert J. Smith, Counsel for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, concludes that the disparities in the federal death penalty may exist because federal cases do not use a county-level jury pool but instead employ a wider pool from the federal-district level, resulting in the dilution of minority representation in the jury pool. According to the authors, “Capital verdicts become separated from the moral judgments of the community when [there are] fewer minority group members in the jury pool.” They proposed utilizing a county-level jury pool as is done in state cases: “If federal capital juries come from the county where the offense occurred, then prosecutors are left to determine whether to seek the death penalty based on the relative federal interest in the crime (and not the prosecutorial interest to secure a death sentence by any means possible). This solution is also more democratic—the citizens most impacted by the effects of high crime, overly aggressive policing, or poor public policy are the decision-makers responsible for redressing those harms.”

Five men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system. These cases are the first to request application of North Carolina’s Racial Justice Act, which allows the use of statewide or regional statistical studies to challenge a death sentence because of racial bias. In all five cases, the victims in the underlying murder were white and the defendants were black.  Moreover, prosecutors struck eligible blacks from the juries in these cases at greater rates than whites. In some cases, prosecutors struck eligible black jurors while accepting similar white jurors. Ken Rose, staff attorney at the Center for Death Penalty Litigation (CDPL), said, “We would like to live and practice in a system where race does not matter. But the results show that white victims are valued more highly than black ones, and that black jurors are being denied their right to serve. This evidence of racial bias cannot be ignored.”

  A recent study published by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Alabama, shows that the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South. The study, "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy," found that in Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and in some counties, 75% of black jury pool members have been struck in capital cases. In Jefferson Parish, Louisiana, an analysis by the Louisiana Capital Assistance Center found that blacks were struck from juries more than three times as often as whites between 1999 and 2007.  In North Carolina, at least 26 current death row inmates were sentenced by all-white juries.  According to Bryan Stevenson, Executive Director of the Equal Justice Initiative, "There's just this tolerance, there's indifference to excluding people on the basis of race, and prosecutors are doing it with impunity. Unless you're in the courtroom, unless you're a lawyer working on these issues, you're not going to know whether your local prosecutor consistently bars people of color."

  On Friday, May 7, NPR's Radio Diaries will feature a half-hour documentary entitled, "Willie McGee and the Traveling Electric Chair." The documentary focuses on the life of Willie McGee who was executed in Mississippi during the Jim Crow era after being convicted by an all-white jury of raping a white woman. During that time in Mississippi, the state used a portable electric chair, which the state transported from county to county. According to NPR, it was not just the portable electric chair that made McGee's execution unusual, but the unprecedented live radio coverage that accompanied it. The documentary includes excerpts of the live coverage from McGee's execution, broadcast from outside the courthouse where the execution took place.