1. The Color of Death: Race & the Death Penalty
Chapter 8

2. Chapter Goals
Explain the Supreme Court decisions concerning the constitutionality of the death penalty
Interpret racial differences in attitudes toward capital punishment
Evaluate present statistics on death sentences and executions, and summarize the results of empirical studies examining the effect of race on the application of the death penalty
Explore and discuss the implications of McCleskey v. Kemp
Evaluate competing arguments pertaining to the discussion of recent calls for a moratorium on the death penalty and legislation intended to reform the capital sentencing process.

3. Unprecedented Commutation
Forcing society to pay attention…
Illinois Governor Ryan
Commuted sentences of all 167 inmates on state’s death row to “life in prison”
1994 – Supreme Court Justice Blackmun
Stated death penalty was arbitrary & racially discriminatory; would oppose future death sentences
The Debate
Many scholars & policymakers have questioned death penalty application
Death penalty supporters assert it is applied fairly & “checks” exist

4. Constitutionality: Death Penalty
8th Amendment
Prohibits “cruel & unusual punishments”
Question of “cruelty” at issue
Death penalty has existed throughout history
US Supreme Court has never ruled the death penalty is “cruel & unusual”
Cases like Furman v. Georgia have had serious impact on handling of capital punishment

5. Constitutionality: Death Penalty
Furman v. Georgia
1972 – Supreme Court ruled death penalty “unconstitutional” under existing administration practices
5-4 Decision *Split Decision*
Concluded serious risk of discriminatory application
Racial discrimination addressed by 3 of 5 majority
Impact?
Made application of death penalty difficult in most states
Many states responded by adopting statutes narrowing discretion & mandating death penalty for certain offenses
Bifurcated trial – Guilt or Innocence then imposition of death penalty
Supreme court ruled that some adoptions created arbitrary discretion; others did not

6. Attitudes Toward Capital Punishment
After Furman & Gregg
% in US favored death for murder convictions
1997 – 75% polled supported death penalty
Many researchers question poll results depending on…
Specific case
Defendant character
Available punishment alternatives
Recent polls
Majority of Americans think innocent are sometimes convicted in murder cases

7. Key Changes Since 1976
Atkins v. Virginia (2002) – The execution of individuals inflicted with “mental retardation” is unconstitutional. Execution constituted cruel and unusual punishment
Roper v. Simmons (2005) – The execution of juveniles (anyone under the age of 18) was unconstitutional and a violation of the 8th and 14th amendments.
22 juveniles had been executed since 1976

8. Attitudes Toward Capital Punishment
2010 Poll (Lake Research Partners) – Support for the Death Penalty when offered alternative sentences
39% - Life without parole plus restitution
33% - Death penalty
13% - Life without parole
9% - Life with parole
6% - No Opinion
2007 Gallup Poll
In favor of death penalty
70% of whites
40% of African Americans
Many question death penalty fairness

9. Attitudes Toward Capital Punishment
Why racial differences in attitudes?
Stereotypes
Apathy toward certain groups
Geographic (social context)
Local politics
Minority population numbers
Homicide rates

10. Race & Death Penalty
Clear statistical evidence for racial disparity in death penalty application
Murder of whites (especially by African Americans) significantly increases chances of being
Sentenced to death
Executed
Historically, African Americans have been a significantly greater portion of those sentenced to death & executed in US
African Americans are only 13.5% of US population (2008 Figures)
Some assert these numbers simply reflect African Americans committing more violent crime than other groups

11. Pre-Furman v. Post-Furman
Race & Death Penalty
Statistical evidence of racial disparity…
Pre-Furman
Rape played a significant role in discrimination
study showed
5% of whites convicted of raping whites sentenced to death
54% of African Americans convicted of raping whites sentenced to death
Fewer than 8 whites convicted of raping African Americans sentenced to death
Pre-Furman v. Post-Furman

12. Pre-Furman v. Post-Furman
Race & Death Penalty
Statistical evidence of racial disparity…
Post-Furman
Strong evidence indicates continued serious discrimination in death penalty application
GAO (1990) study
Found “a pattern of… racial disparities in charging, sentencing, & imposition of death penalty after Furman”
Also concluded race alone was not clearly the pivotal variable
Pre-Furman v. Post-Furman

13. Race & Death Penalty AR, FL, GA, IL, MS, NC, OK, VA
Death penalty decisions in 8 states… (1976 – 1980)
Less chance of death if for offender charged with killing African Americans
Greater chance of death for offender charged with killing whites
Greatest chance of death for African American charged with killing whites
10:1 in Georgia and Mississippi
8:1 (Florida), 7:1 (Arkansas), 6:1 (Illinois, Oklahoma, and North Carolina), and 5:1 (Virginia).
AR, FL, GA, IL, MS, NC, OK, VA

14. Rac& Death Penaltye Pierce and Radelet (2005) – California Study
Those who killed whites were 3.7 times more likely to be sentenced to death than those who killed African Americans and 4.7 times more likely than those who killed Hispanics.
Accounted aggravating circumstances
Williams and Holcomb (2004)
Race-Gender Characteristics
Homicides with white female victims more likely to result in death sentences than other victim race-gender dyads

15. Attitudes Toward Capital Punishment
After Furman & Gregg
% in US favored death for murder convictions
1997 – 75% polled supported death penalty
Many researchers question poll results depending on…
Specific case
Defendant character
Available punishment alternatives
Recent polls
Majority of Americans think innocent are sometimes convicted in murder cases

16. Think back to state action in the wake of Furman…
Race & Death Penalty
Race & federal capital sentencing process…
1990s: more defenses made eligible for capital punishment
US Department of Justice adopted regulations
“Death penalty protocol” = set of standards & procedures
e.g., AUSA cannot seek death penalty w/out Attorney General “ok”
Intended to provide greater fairness
Think back to state action in the wake of Furman…

17. Race & Death Penalty Race & federal capital sentencing process…
DOJ research
80% of federal death-eligible cases were minorities
Less chance of death recommendation for minorities
Majority of death-eligible cases reviewed were for Hispanic & African American defendants

18. Race & Death Penalty
2001
Concluded minority disproportion in death-eligible cases is not racial or ethnic bias
May be explained by focus on drug cases
Critics asserted 2001 study gives “premature” & incorrect image of CJ system “fairness” compared to past
2010
27 African Americans on federal death row
24 whites on federal death row
8 Hispanics on federal death row
1Native American on federal death row

19. Supreme Court & Racial Discrimination
Constitutional challenges based on empirical evidence
Applying the Death Penalty
McClessey v. Kemp:
Addressed victim-based discrimination
African American McClessey convicted of killing white police officer during armed robbery
McClessey defense claimed discriminatory administration of capital sentencing process & provided studies on issue

20. Supreme Court & Racial Discrimination
Constitutional challenges based on empirical evidence
McClessey v. Kemp:
Supreme Court rejected claim, but accepted validity of studies
Court stated that accepting the claim might open the way to major lawsuits on fairness of CJ system
Legal scholars & several Supreme Court Justices stated such a rationale is a refusal to be honest

21. 21st Century Death Penalty
Continues to be a major issue today…
1997 – American Bar Association
Formally asked for moratorium on US executions
2000 – IL Governor Ryan
Issued moratorium in IL
2000 – NH Legislature
Voted to repeal death penalty
2000 – TX Civil Rights Project
Questioned competence of attorneys in death penalty cases & probability of wrongful convictions

22. 21st Century Death Penalty
2001 – Supreme Court Justices O’Connor & Ginsburg
Criticized handling of death penalty cases
New York State Court of Appeals
Ruled that the state’s death penalty statute was unconstitutional
2007 – New Jersey Abolishment
First State to abolish the penalty post Gregg v. Georgia (1967)
Since 2000
Moratorium bills introduced in 32 states

23. You Decide The Racial Justice Act
Would have allowed condemned defendants to challenge their death sentences by showing a pattern of racial discrimination in the capital sentencing process in their jurisdictions.
The state would be required to prove that its death penalty decisions were racially neutral
Removed from the 1998 Omnibus Crime Bill
Only Kentucky and North Carolina have enacted a Racial Justice Act
Defense has to prove that there is a bias and the state rebuts the evidence.

24. Innocence Project
As of 2010 – 138 Death Row Exonerations have occurred with evidence of innocence.
Innocence Project
17 People proven innocent and exonerated by the project. Combined they served 209 years in prison including 187 years on death row.
Exonerations cross all levels of race and ethnicity.
Anthony Graves (October 28, 2010) – 12th person exonerated from death row in Texas.
18 Years incarcerated, 16 years on death row
Exoneree Compensation policy
$80,000 for each year a person was wrongfully incarcerated and college tuition

25. 21st Century Death Penalty
Death penalty reform movement…
Advocates say problem can be fixed
Call for measures to decrease odds of wrongful conviction
Standards for defense attorneys handling death penalty cases
More use of and funding for DNA testing
Call to cease execution of mentally challenged

26. Where is capital sentencing on the discrimination continuum?
Conclusion
Data show…
Those murdering whites are more likely to receive death penalty than those murdering minorities (especially African Americans)
Racial disparities cannot be ignored
Other factors also play a role
Toward the “systematic” end
Race is part of a clear pattern in post-Furman America
Where is capital sentencing on the discrimination continuum?

27. Key Terms Furman v. Georgia Gregg v. Georgia Death penalty application
Moratorium
DNA testing
Death penalty reform
Capital sentencing process
DOJ
Racial disparity
McClessey v. Kemp
Supreme Court
Clemency
Execution
Appeal
Ruling
AUSA
Statute adoption
Empirical study
Charging
Sentencing
Arbitrary
GAO