Racial Discrimination in the Criminal Justice System

Capital punishment is the legal imposition of death on a person convicted of a crime. At the root of this controversial subject are moral, legal and ethical concerns. It is said to be reserved for the most

serious, heinous crimes and its use has been justified through claims of deterrence and prevention of further crimes. The death penalty has often been warranted from a religious viewpoint, quoting the command of Exodus in the saying an “eye for an eye, tooth for a tooth, life for a life” (Meltsner, 1973, p. 46). In contrast to this way of thinking, many people have come to heed the words of the late Martin Luther King, Jr. who warned that an eye for an eye attitude only makes everyone blind (Bessler, 2003). One would think it strange if one would suggest that we rape the rapist or rob the armed robber. Yet, our society continues to justify murdering the murderer.

Throughout history, minorities, especially African Americans, have been treated differently than their white counterparts in the criminal justice system. Dating back to the days of the “Old South” where blacks were lynched for the slightest infraction, there have been documented cases of African Americans having been punished more harshly than whites for the same law violations. This racial bias is especially evident in the administration of capital cases. According to the United States Census Bureau, about sixty-nine percent of the American population is of white, non-Hispanic background and African Americans make up approximately twelve percent of the population. Yet, when looking at death row inmates, blacks consist of forty-two percent of inmates. This is quite a difference in relation to their population numbers.

As of July 2004, there were 3,490 inmates sitting on death row, forty-four percent of those taking residence in just three states, California, Texas, and Florida. And, published research has shown that the death penalty in Florida, Georgia, and Texas is reserved almost exclusively for those (white or black) who kill whites (Death). During this year alone, fifty-nine prisoners have been killed at the hands of the state (“Facts”, 2004).

The manner in which capital punishment is administered in this country is far from being free of discrimination in its application. The Supreme Court of the United States first officially recognized this bias in the landmark decision, Furman v. Georgia (1972), in which the court held that by imposing the death penalty, punishment is “cruel and unusual”. And most recently, New York declared its use of the death penalty unconstitutional (“Facts”, 2004). All of the justices in the majority of the Furman decision had different views on why the death penalty infringed on the Eighth and Fourteenth Amendments, however they all agreed that it was unconstitutional (Bessler, 2003).

Justice William Douglas wrote:

The words “cruel and unusual” certainly include penalties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is “cruel and unusual” to apply the death penalty — or any other penalty — selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board. There is increasing recognition of the fact that the basic theme of equal protection is implicit in “cruel and unusual” punishments. A penalty . . . should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily. The extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position (Furman v. Georgia, 1972).

Justice Brennan, also in the majority, wrote, “When a country of 200 million rarely inflicts an unusually severe penalty, the inference is strong that the penalty is unfairly and irregularly applied, that it runs counter to community values, and that there is a deep-seated reluctance to employ it. The notion that because people fear death the most, the death penalty is a superior deterrent to crime only applies to those who think rationally about committing capital offenses” (Bessler, 2003, p. 94).

In the Furman v. Georgia (1972) decision, the concurring justices agreed that the Constitution prohibited the execution of the 631 men and two women held on death row in 32 states. Of those 633 inmates, 547 were murderers, 80 were rapists and four were armed robbers; of which 351 were black, 267 white and 13 of other racial backgrounds. All of the condemned had their sentences commuted to life imprisonment, to a term of years, or, in a few cases, to new trials (Bessler, 2003). The Supreme Court eventually rescinded this decision in 1976.

In relation to discrimination in capital punishment, Bessler (2003) identifies seven common myths:

Myth #1: Innocent people aren’t executed.
The Stanford Law Review published a study in 1987 and found that since 1900, at least 23 people who were possibly innocent have been put to death. Over 100 people have been released from death row since 1973 because of uncertainties about their guilt or because DNA or other evidence positively proved their innocence (Bessler, 2003). So far this year, there have already been five exonerations (“Facts”, 2004).

Bessler (2003) calls attention to a study conducted by James Liebman, a professor at Columbia Law School, which showed just how many mistakes are made in death cases. The study looked at 4,578 capital sentences reviewed by state appellate courts and 599 capital sentences reviewed in federal habeas proceedings from 1973 to 1995. Of the 4,578 death sentences reviewed on direct appeal, 41% were tossed out due to serious error. Even more sentences were vacated in state habeas corpus proceedings, and of the 599 sentences reviewed by federal courts, 40% were set aside because of potentially fatal errors. In those instances, it took on average more than seven years to detect the errors. Incompetent defense attorneys were responsible for 37% of mistakes, 20% involved faulty jury instructions and 19% were due to police or prosecutorial error. At retrials, 75% of convicts whose death sentences were vacated got lesser sentences or acquitted. The overall error rate from 1973 to 1995 in capital cases was 68% (p. 89). A margin of error that high is hardly acceptable on university level exams, yet our society continues to allow people to be put to death under such circumstances.

George W. Bush, former governor of Texas, expresses confidence that no innocent inmates were ever executed during his gubernatorial tenure. “I know there are some in the country who don’t care for the death penalty,” he once said on the presidential campaign trail, “but I’ve said once and I’ve said a lot, that in every case we’ve adequately answered innocence or guilt” (Bessler, 2003, p. 71). Yet, under his administration, Bush decided that 30 minutes was too long to spend on a final review of a death sentence, so he cut reviews to a mere 15 minutes. How can someone “adequately” determine guilt or innocence in a 15-minute review? A former French justice minister, Robert Badintor, was so bothered by Bush’s oversight of (and lack of oversight of) more than 100 Texas executions that he called Bush “the world champion executioner” (Bessler, 2003, p. 77).

Perhaps Bush should have followed the lead of Illinois Governor George Ryan, who in 2000, declared a moratorium on executions in his home state. After 13 death row inmates were exonerated by new evidence, Ryan said he would not allow any more executions unless an independent panel could give him a “one hundred percent guarantee” against any mistaken convictions (Bessler, 2003, p. 68). Also in 2000, President Clinton and Attorney General Janet Reno concluded that a moratorium on federal executions was necessary to conduct a further study of the problem. That study was ditched in 2001, when President Bush’s newly appointed Attorney General, John Ashcroft, declared that another study showed “no evidence of racial bias in the administration of the federal death penalty” and who declared the Department of Justice would not postpone executions on the basis of doubts about racial fairness (Bessler, 2003, p. 88).

Myth #2: Death row inmates all get fair trials.

How much does a trial cost? For some, it is merely a monetary issue. For others, it can cost them their life. A fair trial inherently revolves around the ability to retain competent counsel, and under most circumstances, competent counsel does not come under the guise of a court appointed attorney. For example, in Alabama there is no state funded public defender system. Attorneys, subject to severe compensation restrictions by the state, end up representing defendants in capital cases who are unable to afford counsel. Until 1999, Alabama’s cap on compensation in capital cases was the lowest in the nation. Alabama’s hourly rate of compensation was $20 per hour for out-of-court work and $40 per hour for in-court activity. Out-of-court compensation was capped at $1,000 per phase of a capital trial. These restrictions led many lawyers to neglect the time necessary to effectively assist their clients in capital cases. (Stevenson, 2004).

When a poor person is tried for a capital case with a court appointed attorney, more often than not, they are receiving less consideration in their cases than someone like Scott Peterson, a California man recently convicted of murdering his wife and unborn child. Peterson was able to retain a high profile lawyer and, although he was convicted, his lawyer gave 110% to ensure Peterson was afforded every opportunity under the law. Naturally, Peterson’s lawyer was well compensated for his efforts. Another high profile example of this is the OJ Simpson case. Simpson, accused of brutally murdering his ex-wife, Nicole Brown Simpson and her friend, Ron Goldman, was acquitted after his team of lawyers proved how inept the prosecution was and a showed a conspiracy with the local police department. A person of modest means, who would have no way to afford such diligent attorneys, often falls prey to the injustices of the criminal justice system.

In other cases, condemned inmates have been represented by drunk attorneys and lawyers who fell asleep in court or called their own clients “wetbacks” or “niggers” (Bessler, 2003, p. 75). The Chicago Tribune found that 33 people sentenced to die in Illinois were represented by attorneys who were later disbarred or suspended from practicing law. Lawyers less than a year out of law school have been appointed to defend capital cases, and incompetent attorneys have failed to hire investigators or experts, present evidence of a defendant’s mental illness, or put on any evidence at all at the penalty phase of a capital case (Bessler, 2003).

In 1997, Stevenson (2004) represented a death row prisoner on appeal whose appointed attorney did not call a single witness or present any evidence whatsoever on behalf of his client at either the guilt or penalty phase during the trial. The evidentiary portion of the penalty phase takes up less than a single page of the court’s transcript. And, in a 2000 Dothan, Alabama, case, the entire trial lasted only seven hours-including closing statements and jury instructions-before an underprivileged man accused was convicted of capital murder. After the state’s presentation of evidence, the defense presented no witnesses and the jury began deliberating at 3:15pm on the same day that the trial had started. The jury sentenced the defendant to death. (Stevenson, 2004).
Bedau (1987) says that, “Persons are sentenced to death and executed not because they have been found to be uncontrollably violent or hopelessly poor confinement and release risks. Instead they are executed because at trial they have a poor defense (inexperienced or overworked counsel), they have no funds to bring witnesses to court, they are transients or strangers in the community where they are tried, the prosecuting attorney wants the publicity that goes with “sending a killer to the chair”, there are no funds for an appeal or for a transcript of the trial record, or because they are members of a despised racial or political minority (p. 44). Reasons beyond the scope of control for a defendant are not legitimate enough to execute them.

Myth #3: There’s no discrimination in the death penalty’s administration.

Between 1930 and 1990, 53% of the 4,016 people executed in the US were black, and from 1930 to 1976, when blacks made up just 12% of the US population, 90% of all rapists executed were black. According to one report of six white men sentenced to death for rape since 1940, five had received clemency or had their convictions reversed by the courts. In contrast, of the forty-eight black rapists sentenced to death since 1940, twenty-nine had died in the electric chair. Of those remaining, twelve were awaiting execution at the Florida State Prison in Raiford. The convictions of only four of the forty eight blacks were reversed by the courts; only two of the forty eight persuaded the Pardon Board to commute their death sentences; the forty eight was killed in custody by a white sheriff under mysterious circumstances (Meltsner, 2003). Every study of the death penalty has confirmed that black male rapists (especially where the victim is a white woman) are far more likely to be sentenced to death and executed than white male rapists (Bedau, 1987).

In some capital cases, the existence of racial bias is overt. Stevenson (2004) called attention to the case of Victor Saldano. The Supreme Court overturned his conviction in 2000 after the attorney general of Texas conceded that the “prosecutions’ introduction of race as a factor for determining ‘future dangerousness’ constituted a violation of the appellant’s right to equal protection and due process.” At trial, the state’s expert testified in the penalty phase that one of the factors associated with a defendant’s future dangerousness was his race or ethnicity. The state’s “expert” identified the Argentinean defendant as Hispanic and relied on the overrepresentation of “black and brown” people in prison to support his assumption about the correlation between race and dangerousness. After the United States Supreme Court reversed the lower courts decision based on the Texas attorney general’s confession of error, the Texas Court of Criminal Appeals reinstated the death sentence. The Texas court held that the attorney general had no authority to confess error in a death penalty case appealed to a federal court. In another case, Anthony Ray Peek, an African American, was wrongly accused of capital murder and sentenced to death in Florida after a white trial judge inappropriately admitted evidence and expedited the penalty phase proceedings by stating from the bench, “Since the nigger mom and dad are here anyway, why don’t we go ahead and do the penalty phase today instead of having to subpoena them back at cost to the state” (Stevenson, 2004, p. 87).

In 1989, another case of clear discrimination was documented when a federal judge found that Wilburn Dobbs, was tried by a state court judge who had spent his life defending racial segregation and would only refer to Mr. Dobbs at trial as “colored” or “colored boy.” A jury, some who later revealed that they believed the Ku Klux Klan did “good things in the community” and that black people are more violent than whites, convicted Dobbs of capital murder. Mr. Dobbs was defended by an attorney whose own racist views included a belief that black people are “morally inferior, less intelligent, and biologically destined to steal.” The District Court and the Eleventh Circuit Court nevertheless affirmed Mr. Dobbs’ conviction and death sentence. The United States Supreme Court eventually reversed the lower court’s ruling on other grounds (Stevenson, 2004 p. 88).

Myth #4: The death penalty is cheaper than life without parole sentences.

In Texas, a typical death penalty case costs $2.3 million, three times the cost of imprisoning someone in a single cell at a maximum-security prison for 40 years. In Florida, death sentences cost over $3 million, compared with $516,000 for a life sentence, and in North Carolina, they cost at least $2 million more per. A recent study in California showed taxpayers would save more than $90 million per year by abolishing the death penalty (Bessler, 2003).

Myth #5: Impartial jurors hand out death sentences.
In a process approved by the US Supreme Court, all capital juries are “death qualified,” meaning death penalty opponents are excluded from sitting in judgment in capital trials (Bessler, 2003).

An 11 state study of capital juries showed that 4 of 5 jurors agreed with the statement “persons sentenced to prison for murder in this state are back on the streets far too soon”. Those jurors, however, routinely underestimated how long a defendant would be incarcerated if not sentenced to death. In all 11 states, citizens’ release estimates for murderers often fell far below the mandatory minimum sentence required by state law. Defendants are thus sentenced to die by jurors on the basis of misinformation (Bessler, 2003, p. 82).

Myth #6: Death sentences are a better deterrent than life without parole sentences.

Bessler (2003) reports statistics from active death penalty states to show how ridiculous it is to say the death penalty deters or reduces violent crime more effectively than incarceration. In 1997, Louisiana had 15.7 murders per 100,000 residents; by comparison, Minnesota’s murder rate was 2.6 per 100,000. Texas has one of the country’s worst records when it comes to violent crime. From 1988 to 2000, 1,608,276 violent crimes were reported, including 23,795 murders. There were, on average, over 10 murders per year, per 100,000 residents.

A recent study commissioned by the New York Times examined FBI data and found that death penalty states’ average homicide rates consistently exceed those of non-death penalty states. That study showed that, “over the last twenty years, death penalty states’ murder rates have been, on a per capita basis, an astonishing 48 to 101 percent higher than those in non-death penalty states” (Bessler, 2003, p. 35).

As one can easily detect from the examples provided, racial discrimination can rear its ugly head in most aspects of the criminal justice system. In capital cases especially, continued bias from judges, juries and attorneys often condemn defendants before they are even tried. Justice Harry Blackmun, who stated in his bold dissent in Callins v. Collins (1994) “From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.”

Blackmun continued, “Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. “ It is virtually self-evident to me,” he says, “now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.” “The basic question-does the system accurately and consistently determine which defendants “deserve” to die? -cannot be answered in the affirmative,” Blackmun wrote. “The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”

Even when the problems with the administration of justice in capital cases are recognized, no action has been taken to prevent problems for occurring in the future. So the debate continues, as it has for hundreds of years. Bedau (1987) summed it up simply:
The actual study of why particular persons have been sentenced to death shows those executed were usually the unlucky victims of prejudice and discrimination, the losers in an arbitrary lottery that could have just as well spared them, the victims of the disadvantages that almost always goes with poverty. However, heinous murder and other crimes are, the system of capital punishment does not compensate for or erase those crimes. It tends only to add new injuries of its own to catalogue of human brutality (p. 44).

Bedau, H. (1987). Death is Different. Boston, Massachusetts: Northeastern University Press.
Bessler, J. (2003). Kiss of Death. Boston, Massachusetts: Northeastern University Press.
Callins v. Collins, 510 U.S. 1141 (1994)
Facts About the Death Penalty. (2004). Retrieved November 24, 2004, from Death Penalty Information
Center Web site: http://www.deathpenaltyinfo.org/FactSheet.pdf
Haas, K. C., & Inciardi, J. A. (1988). Challenging Capital Punishment: Legal and social approaches.
Newbury Park, California: Sage Publications.
Meltsner, M. (1973). Cruel and Unusual: The Supreme Court and Capital Punishment. New York, New
York: Random House.
Stevenson, Bryan (2004). “Close to Death: Reflections on Race and Capital Punishment in America” in Bedau and Cassell eds., Debating the Death Penalty: Should America Have Capital Punishment? New York, New York: Oxford University Press.