Abstract

Excerpted From: Jelani Jefferson Exum and David Niven, Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018, 66 Saint Louis University Law Journal 677 (Summer, 2022) (142 Footnotes) (Full Document)

 

ExumNivenIn the Summer of 2020, the systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd's resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately kill Black people in this country with impunity because our system of policing encourages such violence, and our legal jurisprudence protects that use of violence. Combining the Black Lives Matter declaration with antiracism ideals requires systemic changes that will directly address the disproportionate and racist outcomes of policing. When combined with the larger antiracist movement--the call for antiracist policies across American institutions--the Black Lives Matter movement provided a powerful model for revealing the historic lack of protection for Black people as they live and work in this country. Declaring “Black Lives Matter” is a reminder that Black lives have value, too, and ought to be legally protected. However, even when there is a system that is arguably in place to vindicate the unjust loss of life, Black people still remain unprotected. The application of the death penalty in America reveals the troubling truth that Black deaths do not matter.

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders. It is also well known that the race of a victim is a leading factor in a capital defendant's risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks. This Article takes an in depth look at statistics covering the sentencing outcomes in Texas capital murder cases from 1973 to 2018 to reveal the clear evidence that race matters in the imposition of the death penalty. However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty. Rather, it argues that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. Through the example that Texas provides, the devaluing effect of Blackness is apparent. This is not simply a failure to recognize the value of Black lives--as the Black Lives Matter movement exposes--but is a reflection of the societal view that Blackness actually reduces the value and importance of all things--from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people--even in a system designed to exact retribution for death. When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

This Article reports quantitative findings from the authors' study of Texas capital murder convictions, documenting the consistent disparity in sentencing relating to the race of the victim. Finding that the punishments imposed in cases with Black victims are uniformly lower than in cases with white victims, the authors consider anew the urgency of the assertion that Black Lives Matter. This discussion is situated within the larger death penalty debate and considers how the findings here fit a pattern in which the legal system--in both criminal and civil matters--tolerates racial devaluation.

The Article proceeds in four parts. Part I presents data revealing a stark disparity in death sentence rates in Texas based on the race of the victim. Part II situates the findings within the notion of the death penalty as a tool of retribution. Part III considers how race of victim disparities fit a larger pattern of devaluing Black lives. Part IV suggests disparities are inherent to the death penalty and that the sentence is irredeemable.

[. . .]

The racial disparities in the death penalty are not isolated. Instead, they fit into the broader American legacy of racism and anti-Blackness. To ignore the prevalence of Black lives mattering less, or to discount the realness of anti-Blackness, is to completely misconstrue the context of the death penalty statistics. Such misconstruction (whether based on actual misunderstanding or willful blindness) encourages our legal system to develop strategies to deal with racial disparities that will never lead to their eradication. When the death penalty data is put in its proper historic and current context, it becomes clear that present-day America is unable to employ the death penalty in a racially just manner.

In Gregg v. Georgia, in 1976, the Supreme Court breathed life into the death penalty by holding that capital punishment is not automatically unconstitutional. While the Gregg court confirmed the position from the 1972 Furman v. Georgia decision, that the death penalty cannot be applied in an arbitrary manner, the procedural protections against arbitrariness suggested by the Court in Gregg completely ignore the reality of anti-Blackness as a basis for death penalty decisions. The Court said that:

[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

However, bifurcated jury proceedings and jury guidance have nothing to do with weeding out racial bias. The suggested protections against arbitrariness focus on not letting the legal guilt of the offender infect the jury's determination of the appropriate punishment. But, that focus ignores what is really at stake in capital cases--that jurors may deem a defendant more deserving of death if he kills white people than if he has even one Black victim. How does a bifurcated jury protect against that risk? It simply does not. Race was the arbitrary factor that led the Justices in Furman to say that it violates the constitution for the death penalty to be applied in an arbitrary manner. But, ever since Gregg shifted the solution to process, racial bias has ceased to be recognized as the actual problem.

The Texas death penalty data shows how pervasive race is in death penalty outcomes. Taken in sum, we see: a race of victim disparity in death sentences overall; a race of victim disparity in death sentences sorted by race of defendant; a race of victim disparity in death sentences sorted by weapon used; a race of victim disparity in cases with a single victim; and a race of victim disparity in multiple victim cases. Race is everywhere. Race is so prevalent that we even see a race of victim disparity in non-death sentence cases. In every single comparison, the racial disparity was statistically significant. In every single comparison, harsher punishment was associated with white victims than with African American victims, who clearly mattered less.

The truth, of course, is that Black victims matter as much as any, even if the legal system and society have not recognized their value. And when they are killed, it is not most likely in “a barroom quarrel” as Georgia's assistant attorney general speculated in McCleskey. Roderick “Chip” Brownlow had just arrived home from high school with his younger brother. A good student and athlete at Waco's Connally High School, Chip was due to graduate in two weeks and had plans to attend college. Chip's cousin, Garvin Graves, who grew up with the family and who he considered a brother, had just returned that day to spend the summer at home from college in Pennsylvania.

Chip was not killed in a barroom quarrel. He died in his front yard, amidst the tears and cries of his family. Terry Don Woodward's family lived next door. Woodward, with his neck decorated with a “white pride” message and gun in hand, came after the Brownlows that day. Witnesses testified that he called out a racial epithet and “I will kill you” before taking aim at Chip and his family. Woodward fired his gun several times and ran across the Woodward property. The family scattered and ducked for cover. But Chip Brownlow tripped and fell. As Woodward loomed over him, Chip pled for his life. “He walked up and stood over Chip,” Garvin Graves testified. “Chip was on the ground with his hands up and was saying, 'Please don't shoot me. Don't shoot me.”’ Woodward shot Chip Brownlow at close range and then ran from the scene. Police located Woodward the next day. A seven-hour standoff against members of five police agencies ensued before Woodward was finally taken into custody.

Woodward was convicted of murder for the death of Chip Brownlow, and aggravated assaulted for shooting at Chip's younger brother. He was sentenced to life in prison, with a thirty-year minimum. To the consternation and confusion of some of the victim's family, the death penalty was never sought.

Within a database of cases there are, of course, thousands of tragic stories of lives upended by acts of an almost unspeakable nature. The details differ from case to case. But across all those thousands of cases, the race of victim disparity persists. The math is straightforward. Indeed, the odds against the patterns seen here, emerging by chance, are truly astronomical. Which is to say, the penalties imposed for killing Roderick “Chip” Brownlow and thousands of other African Americans in Texas were less severe than the penalties imposed for killing whites.

The race of the victim matters in the Texas criminal justice system. The results are consistent with previous studies limited to several counties within Texas that also found racial disparities in sentencing. Here, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.

As a matter of jurisprudence and policy making, however, the meaning of the data is uncertain. Baldus and colleagues argue that the courts have often shrugged in response to race of victim disparities owing to “remedial uncertainties” and “the potential political fallout” of declaring the system tainted by discrimination. When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty. Findings of racial imbalance in Connecticut, Maryland, and New Jersey sentencing outcomes contributed to what were ultimately successful efforts to abolish the death penalty in those states. Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views.

After studying the matter in several states, Baldus and colleagues conclude that eliminating the race of victim disparity in death sentences requires either abolition of the death penalty or a severe narrowing of its application coupled with close judicial scrutiny of racial patterns. These authors argue that abolition is the only corrective approach. While many have focused that the death penalty is unconstitutional because the race of the defendant is unduly relevant, these authors argue that the effect of the victims' race also warrants abolition of the death penalty. This is not because the authors believe that the death penalty ought to be applied more often to vindicate the loss of Black lives. Rather, the persistent importance of the race of the victim in the death penalty context demonstrates an area of law where Blackness is not seen as equal to whiteness. The goal, then, is not simply to increase the application of the death penalty to avenge more Black victims, but rather to recognize that the racial outcomes in capital punishment teach us about the biases held in our society. The death penalty is a tool for carrying out those biases. In keeping with the momentum of today's antiracism reckoning, abolishing the death penalty is the only antiracist solution. It would dismantle an area of the law that allows for the unbridled exercise of racial bias. Professor Ibram X. Kendi describes antiracism as “a radical choice in the face of history, requiring a radical reorientation of our consciousness.” History shows us that Blackness has been devalued since the founding of America. We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just. To do otherwise is to perpetuate a system where Black lives matter less.


elani Jefferson Exum (J.D., Harvard Law School) is the Dean and Philip J. McElroy Professor of Law at the University of Detroit Mercy School of Law

David Niven (Ph.D., Ohio State University) is an associate professor in the School of Public and International Affairs at the University of Cincinnati.