1. Racial Discrimination in Capital Punishment
Kaitlyn Fennell
Class of 2020
2018 Summer Fellows
Working under Eric Rise, Criminal Justice and Sociology

2. History of Capital Punishment in the U.S.
Capital Punishment has been used in the United States since colonial times
In the beginning, only white colonists were executed
Slave codes recognized different punishments for slaves compared to whites
One example is that blacks could be executed for rape, but not whites
During the Antebellum Period, slave states would sentence blacks to death for various offenses, many that they would not sentence whites, and sometimes, if a white person were to do the same thing, they would not have any charges brought on to whites (Allen and Chubb 162).
History of Capital Punishment in the U.S.

3. Race and Crime in the United States
“In other words, possessing white skin color… has become a ubiquitous part of public understandings of, and expectations of what, for example, it means to be hardworking, law-abiding, and/or trustworthy” (Ogletree and Sarat 152).
According to the Federal Bureau of Prisons, 37.7% of the prison population in the U.S. are black, while they only make up 13.4% of the total population, according to the U.S. Census
Blacks also make up 41.8% of those on death row (DPIC)
Black Americans could not serve on juries or testify for themselves as well
Race and Crime in the United States

4. Racial Discrimination and the Criminal Justice System in Numbers
*According to David Baldus study on
“Race and Proportionality”
Racial Discrimination and the Criminal Justice System in Numbers
*According to Garfinkel findings in Death & Discrimination by Samuel R. Gross and Robert Mauro

5. According to the Kirwan Institute at The Ohio State University, Implicit Bias can be defined as “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner”
Within the criminal justice system, this could refer to a juror’s thoughts that all black people are criminals, as that can be a common stereotype that people believe
Implicit Biases like above can skew how a trial turns out, and can result in a disproportionate amount of people convicted based on race (or ethnicity, sexual orientation, citizenship, etc.), instead of the facts of the case.
Implicit Bias

6. Ruled that all then existing capital punishment laws were Unconstitutional because the arbitrariness of application violated the 8th Amendment Cruel and Unusual Punishment Clause
In dicta: the current capital punishment sentencing guidelines (or lack thereof) left a lot of room for racial discrimination when jurors were left to decide the fate of a defendant
Furman v. Georgia (1972)

7. Gregg v. Georgia (1976) and the re-instatement of the death penalty
Because of Furman, after four (4) years of having the death penalty suspended, the Supreme Court upheld a new set capital punishment guidelines for Georgia
Some of the guidelines included:
A list of aggravating factors, at least one of which must be present for a defendant to be eligible for the death penalty
However, if the defense brings up any relevant mitigating factors, the jury may consider them to balance out aggravating factors
Gregg v. Georgia (1976) and the re-instatement of the death penalty

8. Decided at the same time as Gregg v
Decided at the same time as Gregg v. Georgia, the Supreme court also ruled on a number of other capital punishment guidelines.
Florida: Proffitt v. Florida (1976) – upheld guidelines that 1) required the jury to determine whether the mitigating factors outweighed the aggravating factors; and 2) allowed the judge to override the jury's recommendation of a death sentence (this was overturned in Hurst v. Florida (2016))
Texas: Jurek v. Texas (1976) – upheld death penalty guidelines that narrowed the definition of capital murder and required jurors to consider the future dangerousness of the defendant.
North Carolina: Woodson v. North Carolina (1976) – dealt with mandatory death sentences, so this was reversed
Louisiana: Roberts v Louisiana (1976) – This was also reversed because the guidelines included mandatory death sentencing for five different types of homicides
Other states

9. The General Consensus of the Court
After several rulings on Capital Punishment sentencing rules, there was a pattern that the court had stuck with
To be constitutional, guidelines had to:
Not have a mandatory death sentence for any crime by limiting the discretion of juries in capital cases
The jury must weigh the different aggravating and mitigating factors presented in the case, even if there is not an exact list to choose from
This was to attempt to eliminate any arbitrariness that had occurred prior to Furman
The General Consensus of the Court

10. This study of more than 2000 murder cases prosecuted in Georgia in the decade after Gregg showed how black defendants are more likely to be convicted and sentenced to death for the same/lesser crime than their white peers
This study also showed a race-of-victim affect which displayed how if the victim of the crime was white, a jury would be 4.3 times more likely to convict the defendant
David Baldus Study (1983)

11. McCleskey v. Kemp (1987) – addressing the problem
Warren McCleskey, a black defendant from Georgia sentenced to death for murder and armed robbery, brought his case to the Supreme Court, arguing that Georgia's capital punishment sentencing was administered in a racially discriminatory manner
He used David Baldus’s study as evidence of this in the Georgia justice system
He believed that the Baldus study showed how “[Georgia] as a whole has acted with a discriminatory purpose” in addition to the study demonstrating how Georgia’s capital sentencing system was unconstitutional under the Eighth Amendment and the Fourteenth Amendment equal protection clause (McCleskey).
This case was the first time the Court had directly considered the issue of racial discrimination in capital sentencing
McCleskey v. Kemp (1987) – addressing the problem

12. In a 5-4 ruling, the Supreme Court upheld McCleskey’s conviction
Although the Court accepted the validity of the Baldus study, it held that McCleskey failed to show evidence of discrimination in his particular case
“The majority Justices rejected the data’s significance as to the question of whether Georgia’s capital system was “impermissibly tainted” by racism… by setting a standard that requires ‘proof that decision-makers in his case acted with discriminatory purpose… in order to prevail on the equal protection challenge” (Ogletree and Sarat 183).
McCleskey’s ruling set a precedent regarding the usage of social science studies in cases from here on out.
The Ruling

13. How did the States react?
Most of the states accepted the ruling of the Supreme Court
However, some states decided to give defendants more protections against bias in sentencing
Two states enacted Racial Justice Acts:
North Carolina
Kentucky
And another state attempted to add extra precautions to minimize the overt and implicit biases that would come into each case:
New Jersey
In the end, New Jersey ended up getting rid of its Death Penalty
How did the States react?

14. North Carolina passed a Racial Justice Act in 2009, making it the second state to pass a legislative act to attempt to prevent racial discrimination in capital punishment sentencing.
The act states “no person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race”
In 2013, however, the North Carolina Racial Justice Act was repealed by state legislature.
However, before the repeal, four death row inmates had their sentences commuted to life imprisonment without parole after a judge determined that racial bias had played a role in jury selection. These cases are currently under review by the state supreme court.
North Carolina

15. Kentucky Racial Justice Act passed in 1998 was more restrictive than North Carolina’s.
It was limited to pretrial motions that the prosecution purposefully discriminated against the defendant according to his/her race (Baldus, Woodworth, and Gross 147).
Not retroactive to allow inmates who were sentenced before the law was enacted to challenge their death sentence.
According to “Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance,” the limitations on the Racial Justice legislature led to increased backlash from prosecutors. There was often a “denial and retaliatory effect” from any discrimination claims.
Kentucky

16. Unlike the previous two states, New Jersey attempted to dissolve racial disparities in sentencing through cases rather than a legislative act
State v. Ramseur (1987) – The NJ Supreme Court announced its constitutional goal of reliable and uniform death sentencing
The court appointed David Baldus to conduct a proportionality review of capital sentencing in New Jersey, which tentatively found that black defendants in NJ were 19 percent more likely than whites or Hispanics to be sentenced to death.
New Jersey also would evaluate different claims of racial bias on a case by case basis
New Jersey

17. How New Jersey eventually got rid of the Death Penalty
After attempting to clear up any possible discrimination in capital cases, and the exhaustion of resources and time spent, the attempt to fix the racial discrimination problem within the courts did not solve the issue that capital punishment was facing.
In 2007 Governor Jon Corzine signed into law a bill that abolished the death penalty.
How New Jersey eventually got rid of the Death Penalty

18. In 1994, Congress proposed a Racial Justice Act as part of the Crime Bill of that year.
“Despite the pronounced racial disparities in the infliction of the death penalty in both state and federal capital cases, Congress refused to include the Racial Justice Act as part of the crime bill in 1994, just as it refused to enact the Racial Justice Act in previous years. The Racial Justice Act was a modest proposal that would have required courts to hold hearings on racial disparities in the imposition of the death penalty and look behind the disparities to ascertain whether they were related to race or some other factor” (Ogletree and Sarat 230).
Since then, there has been no legislation by the federal government to attempt to get rid of the racial discrimination in death penalty sentencing
Federal Government

19. What if we just get rid of the Death Penalty?
One solution that would surely solve the problem at hand would be to eliminate the death penalty throughout the United States
However, while this would be a quick solution, it would not solve the issue completely
The main issue is not the death penalty itself, it is the racial biases that those involve hold. This includes jurors, prosecutors, and judges. All of these can hold different opinions that can skew how a defendant is presented with heavy bias about their race.
If the death penalty were to be outlawed, there would still be biases held by people when a defendant of a racial minority for other charges a person could potentially face.
What if we just get rid of the Death Penalty?

20. Justices Who Changed their Mind on Capital Punishment
Several justices since the McCleskey decision have changed their own personal stance on the death penalty.
In the case of Callins v. Collins, former Justice Blackmun expressed in his dissent that he would “no longer tinker with the machinery of death.”
Blackmun cited McCleskey in his dissent, “Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey, the Court has chosen to deregulate the entire enterprise”
When retired justice Lewis Powel was asked in an interview if he would change any vote, he replied, "Yes, McCleskey v. Kemp" (Jeffries 1994).
Justices Who Changed their Mind on Capital Punishment

21. Racial discrimination in Capital Punishment sentencing has occurred since the 19th Century in the United States.
This and abundant arbitrariness in sentencing guidelines led to the suspension of the death penalty from 1972 to 1976
The reforms implemented after Gregg v. Georgia did not eliminate racial disparities in capital punishment. This was outlined in David Baldus’s study.
The Baldus study was used in the 1987 case of McCleskey v. Kemp, where it was ultimately decided that the social science study did not show how racial discrimination affected McCleskey personally.
After, several states attempted to take matters into their own hands regarding racial discrimination. Kentucky and North Carolina both signed Racial Justice Acts into legislature, but North Carolina’s was repealed in 2013.
New Jersey decided to abolish the death penalty after attempting to evaluate racial discrimination claims in the courts on a case by case basis.
The Conclusion

22. I would like to thank Dr. Eric Rise as well as the University of Delaware Undergraduate Research Program for giving me the opportunity and sponsoring my research this summer.
Acknowledgements

23. References

24. The End