F. Racial Bias in The Death Penalty
More than 2500 prisoners are on death row, of which approximately 40% are African-American. Since the death penalty was reinstated in 1976, of the 232 executed, 91 or 39.22% have been African-Americans. African-Americans make up approximately 12% of the general population. Therefore, they are disproportionately overrepresented on death row and subsequently executed.
Study after study has substantiated that race is a significant factor in the decision to sentence a defendant to die, especially if the defendant is black and the victim is white. Althea Simmons, Director of the Washington Bureau, National Association for the Advancement of Colored People, in testifying about the death penalty before members of Congress stated:
A 1981 study by Professor Rudelet of the University of Florida found that a “black on white homicide is 37.7 times more likely to get death.”
A 1983 study by Professor Bernard Bray, Talladega College, of capital murder cases in Alabama found that killers of whites are 10 times more likely to be tried for the death penalty and 8 times more likely to receive the death penalty than killers of blacks.
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In Illinois, killers of whites are 4 times more likely to be put to death than killers of blacks, according to the study of Gross and Mauro.
Even the Supreme Court, in striking down the death penalty in Georgia more than twenty years ago, stated that “[t]he death penalty is disproportionately imposed and carried out on the poor, the Negro and the members of unpopular groups.” In United States v. Wiley, the Court stated, “[t]here has been an enormous danger of injustice when a black man accused of raping a white woman is tried before a white jury. Of the 455 men executed for rape since 1930, 405 (89 percent) were black. In the vast majority of these cases the complainant was white.” States with death penalty statutes rewrote them after 1977 to eliminate arbitrariness in capital penalty sentencing. These attempted remedies failed to address the issue of racial discrimination. Death row statistics for African-American males are higher in some states than the national average.
The issue of racial disparity in death penalty sentencing was squarely before the Supreme Court in 1987, when Warren McCleskey, an African-American male, challenged his death sentence. In McCleskey v. Kemp, the Supreme Court was presented with a thorough study which reviewed more than 2,500 cases of homicides in Georgia for a six-year period. The report validated what most people already knew--that race was a major factor in deciding who received the death penalty. A summary of the report by the American Civil Liberties Union states:
Death was imposed in 34% of the white-victim cases but in only 14% of similarly aggravated black-victim cases.
The odds of receiving a death sentence in a white-victim case was 4.3 times greater than the odds of receiving a death sentence in a comparable black-victim case.
Nearly six of every 10 defendants who were sentenced to death for killing white victims would not have been sentenced to death had their victims been black.
Nearly 90% of those executed since 1977 were convicted of murdering whites, while in the same period, almost half of the homicide victims were black.
In the same period of time, all seven of the persons executed in Georgia were convicted of killing whites. Six of the seven executed were black.
Even though the Supreme Court did not dispute that the study was correct in finding race to be a factor in death sentences, the Court refused to grant McCleskey relief unless he could prove that he personally was a victim of intentional discrimination. The Supreme Court stated, “McCleskey's arguments are best presented to the legislative bodies.” Unfortunately, Congress has failed to adequately address the issue of racial disparity in death penalty sentencing. While Congress “grid locked,” McCleskey was executed in 1991 with no relief, other than the cold embrace of death. The race of the defendant and victim continue to be factors in death penalty cases.
In 1988, Congress passed the Anti-Drug Abuse Act which directed the GAO to “report to the Congress on whether or not any or all of the various [[[sentencing] procedures create a significant risk that the race of a defendant, or the race of a victim . . . influence the likelihood that defendants . . . will be sentenced to death.”
In response to Congress's directive, the GAO analyzed 28 studies to determine whether race was a factor in death sentencing. In summarizing their conclusions, the GAO made the following findings:
Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.
In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.
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The race of victim influence was found at all stages of the criminal justice system process, although there were variations among studies as to whether there was a race of victim influence at specific stages. The evidence for the race of victim influence was stronger for the earlier stages of the justice process (e.g., prosecutorial decision to charge defendant with a capital offense, decision to proceed to trial rather than plea bargain) than in later stages.
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Finally, more than three-fourths of the studies that identified a race of defendant effect found that black defendants were more likely to receive the death penalty.
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To summarize, the synthesis supports a strong race of victim influence. The race of offender influence is not as clear cut and varies across a number of dimensions. Although there are limitations to the studies' methodologies, they are of sufficient quality to support the synthesis findings.
Both Houses of Congress have conducted hearings on the issue of racism in the death penalty to support passage of a federal law that would prohibit racially discriminatory capital sentencing. However, after much protracted testimony and statistical data which supported allegations that African-American males are systematically discriminated against in receiving the death penalty, Congress failed to pass legislation to provide relief. Thus, the death penalty remains the “first cousin to lynching” of African-American males.