The Death Penalty and Race
It is well known that courts reflect the racial biases of society (see, Judicial Council Study , e.g. page 67). Of all the flaws in the death penalty system, its racial disparities are the most troubling. Capital punishment inevitably tends to over-select people for harsher punishment based on racial factors. Fairness is a fundamental value of American culture, and most of us would like to think that the color of our skin, and that of a victim, would carry no weight in a court of law. The truth, however unpalatable, is otherwise.
Before the Civil War, special punishments applied to African-American defendants. For example, Georgia law made the rape of a white female by a black man punishable by death, while the rape of a white female by anyone else was punishable by a prison term not less than two nor more than 20 years. The rape of a black woman was punishable by fine and imprisonment, at the discretion of the court. Execution for rape, a remnant of such attitudes, was not ruled unconstitutional until 1977 (Coker v. Georgia).
Overall, 85% of the executions recorded since European settlement have occurred in the states that once comprised "the Slave South." This is not to suggest there is no racism in California and other states, but executions ? and the lynchings of an earlier era ? have a long history as a tool of racial dominance.
In recent years, about 25% of those arrested for homicide in California and nationally are African Americans. Over 40% of homicide arrestees in California are Hispanic. More than 75% of prisoners on Californi's death row are people of color, a far greater percentage than their 54% share of the population. The differential is even more pronounced for blacks, who comprise only 6.6% of the population, but 35% of death row. How could this significant disparity occur in a state that prides itself on a relatively even-handed treatment of ethnic minorities? Is this a manifestation of the brutalization of our population of former slaves?
Racial disparity was one of the embarrassing flaws the U.S. Supreme Court hoped to fix, after Furman v. Georgia, by requiring guidance for jury discretion, such as proof of a ?special circumstance." But the wide latitude given to California prosecutors by the many special circumstances that can merit a death penalty may lead to racially disparate sentencing.
In Furman, and ten years later in McCleskey v. Kemp (1984), law professor David Baldus presented evidence that the race of the victim may be as influential as the race of the defendant. Murders of whites by blacks were several times more likely to be punished by death than murders of whites by whites, blacks by blacks, or blacks by whites.
Despite the statistical proof of racial disparity, the U.S. Supreme Court, sitting in a building whose facade reads "Equal Justice Under Law," ruled that equity of punishment would be too great a challenge. The defendant Warren McCleskey, the justices said, would have to ?prove that decision makers in his case acted with discriminatory purpose." To appreciate the effect of this ruling, imagine how far the equality of education envisioned in Brown v. Board of Education would have advanced had each pupil's family been required to sue their local school board individually.
Is racial disparity less deadly for being unintentional? The special circumstances list was designed to help decide which acts of homicide are the most reprehensible, which killings the most outrageous or the least forgivable. In the penalty phase, the jury considers not just facts of the crime, but also any factors in the defendant?s life that may explain the event. This includes any violent behavior in the defendant's past that has come to police attention. After twenty years, the results suggest that Californians sitting as jurors may reflect a widespread if unspoken belief that African-American men are more dangerous, more prone to violence, less moral and less redeemable than others.
One veteran trial lawyer described capital trials as rounds of storytelling: In the guilt phase of the trial, the story (usually competing versions) of the crime itself; in the penalty phase, the story of the defendant's life before and after the crime; and in the victim impact statement, the story of that family's loss. Finally, the summations include allusions to other stories, little archetypes of cultural memory (e.g., this is a good boy who got into bad company, like Pinocchio; or, this is an uncontrollable monster that must be destroyed, like Dr. Frankenstein?s monster). The competing attorneys don't always re-tell these kinds of stories, but jurors use such archetypal comparisons in measuring the person and the crime.
Ideally, those who hear the stories are "a jury of one's peers,? persons who share common experience with the defendant. But what of a society characterized by socio-economic gulfs, of cities without community where the conditions and stresses of daily life in one neighborhood are so different as to be incomprehensible to jurors of a different social class?
How do cultural biases and incomprehension creep in? Few prosecutors ? the most influential players in converting homicide arrests into death sentences ? are African American; even fewer come from the neighborhoods in which the majority of death row prisoners grew up. A Los Angeles Times story in 2000 revealed that Latinos had been systematically excluded from grand juries for decades. A disproportionate number of African Americans are excused from trial juries because of their conscientious objection to the death penalty.
A defense attorney with unconscious racial assumptions may not spend enough time with the defendant or defendant's family to uncover mitigating evidence. A client from a different culture may come across as arrogant, uncooperative, or even guilty when viewed through the cultural lenses of attorneys and jurors. A lawyer who presumes his client's guilt may unconsciously invest less effort in defending his client.
The breadth of California?s death penalty statute and the broad discretion given prosecutors and juries provide ample room for even subtle racial biases to influence whether death is sought and imposed. The race of defendant and victim play a larger role in those cases that could go either way. Thus, clearly guilty defendants with multiple victims and grisly crime scenes tend to receive a severe penalty, regardless of the races involved. Murder cases with weak evidence or elements of self-defense will not get the death penalty, regardless of race. But in the many cases that are neither massacres nor simple murders, the race of defendant and victim persists as a crucial determinant.
An honest appraisal of our history can lead us to acknowledge the death penalty's role in a culture of racial dominance. Although the law aspires to perpetuate our best ideals, the courtroom often reflects our worst impulses as well. In contrast to the checks and balances of our Constitution, the death penalty system puts inordinate discretion in the hands of prosecutors. Not surprisingly, they prove fallible, and rectifying their mistakes is difficult and expensive. On the day Californians abandon a discredited death penalty, we will have taken a long stride toward racial justice as well.
Inmates are well acquainted with the issue:
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