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Ruth E. Friedman
Statistics and Death: The Conspicuous Role of Race Bias in the Administration of the Death Penalty, 11 La Raza Law Journal  75, 77-81 (Spring 1999) (citations omitted) (permission requested)

As a capital defense lawyer who has represented death row inmates for over eleven years, I am most familiar with the criminal process in the state courts, particularly those in Alabama. Those of us who litigate capital cases in the South have had the opportunity to learn firsthand how charging decisions are made and, often through bitter experience, how race continues to play a major role in the machinery of death.

As in the nation as a whole, statistics reveal that the application of the death penalty in Alabama is marked by extreme racial disparities. Alabama's death row is 47% black, whereas the state population is 25% black. Although only 6% of all murders in Alabama are black-on-white, 60% of the black inmates on Alabama's death row are there for killing whites. Sixty-five percent of those executed in Alabama in the modern era have been black.

As is true in most jurisdictions, the process for charging someone with a death-eligible crime in Alabama involves a prosecuting attorney and a grand jury. Capital indictments are returned by grand juries sitting in one of the state's 67 counties. Cases are brought to the grand jury by prosecutors from the office of a district attorney who is elected in a judicial district, which sometimes covers several counties. None of Alabama's 40 elected district attorneys is black.

Grand jurors are randomly selected to serve from a list of county residents compiled from drivers' license data and other sources. Procedures for choosing the foreperson of the grand jury can vary from county to county: sometimes the presiding judge decides (with or without help from the prosecutor), sometimes the panel members choose, and at other times it is by lottery. Data have been collected on grand jury forepersons in various counties in Alabama. For example, Monroe County is 35% black. Statistics compiled for Monroe County criminal cases found that only one black had been chosen to lead a grand jury over a period of fourteen years. In Morgan County, as part of his appellate litigation, a death row inmate showed that from 1927 to the time of his trial in 1994, no black person had ever served as leader of a grand jury. Talladega County, with a population that is 31% African American, had seen only a handful of black forepersons. The chief judge in the county testified at a hearing that he handpicked the forepersons based on whom he knew and liked. Thus in the grand jury, the body that affirms or rejects a potential criminal charge, race is already a factor.

It is the district attorney, however, who decides what indictment to seek. The fundamental decision of whether to pursue a capital conviction and the death penalty rests entirely with him or her. Very few southern counties have "committee" decisions, unlike the federal government, where input is included from a number of people and is reviewed by the Attorney General. As long as a crime fits the state's definition of what can be deemed a capital offense-- murder during a robbery, for example, or during any other felony--the district attorney has discretion to prosecute it as a capital case if he or she sees fit. There are rarely any other parameters or oversight.

Because it is both highly discretionary and shielded from scrutiny, this process is especially subject to abuse. District attorneys in states such as Alabama are elected officials. They are aware of public responses to local crimes and of the political advantages to appearing tough on crime. They hold their positions only so long as they remain popular with the majority of voters. In this political climate, rarely will they be taken to task for failing to charge a defendant with a lesser offense.

It would, of course, be an unusual prosecutor (and not a politically savvy one) who would state publicly that race was a factor in her choice of charge. Unstated motivation is not easy to ferret out, particularly in the course of adversary proceedings. Litigation has sometimes made it possible to probe the exercise of charging discretion by prosecutors, and the results have been revealing. One such instance arose in Muscogee County, Georgia in 1989. The prosecutor there was seeking the death penalty for the second time against William Anthony Brooks, a young black man accused of raping and killing a white woman. Muscogee County led death penalty convictions in the state, and had the state's greatest proportion per capita of inmates on death row. At the time of Brooks' retrial, there were sixteen people from Muscogee who had received death sentences. Half of them were black.

Attorneys at the Southern Center for Human Rights in Atlanta, where I was then practicing, looked carefully at the county data on capital cases. We discovered that not only was there a substantial overrepresentation of blacks as defendants, but nearly all the capital cases had white victims. In 78% of the cases in which the Muscogee County prosecutor had pursued the death penalty, the victims were white--despite the fact that 65% of homicide victims in the area were black. Only six of the twenty-one capital cases brought in the circuit had black victims, and in half of those cases, there was more than one victim. In other words, it seemed that it took two black lives to equal one white life in the eyes of this prosecuting attorney.

We decided to see if we could prove that race actually was a factor in the decision to seek the death penalty for Brooks. We asked the prosecutor, on the record, how he determined in which cases he should pursue the death penalty. He maintained that race had nothing to do with his decisions. He said he sought the death penalty whenever the prior record of the accused or the aggravated nature of the crime (one accompanied by a felony, or a particularly brutal case, for example) warranted it. He also claimed that the desire of the victim's family for punishment was a significant factor.

Determined to find out if this was in fact true, we sought and received discovery from the trial court to test the prosecutor's assertions. We gained access to all the files the district attorney's office kept on homicides in the ten years prior to Brooks' trial. There were about 275 cases in all. We then combed each file for information regarding the offender's prior criminal history and the aggravation attendant to the crime. We then presented the information we found to a statistician who made cross-racial comparisons among these cases with the features the prosecutor had asserted had mattered most to him in deciding whether to seek the death penalty.

The results showed that even when the circumstances of the crime were comparable, the district attorney pursued the death penalty far more often when the victim was white. For example, for murders accompanied by another felony, the prosecutor sought the death penalty 47% of the time when the victim was white but only 11% when he or she was black. In cases with more than one perpetrator, the death penalty was sought in 53% of the white victim cases and 10% of the black victim cases. Statistically significant discrepancies were found in nearly every category.

We also pursued the claim that the wishes of the victims' families were a significant factor in the decisions. In Brooks' case, the parents of the dead woman were adamant that he be sentenced to death and would not consider a plea to any lesser punishment. Working from the files of the most aggravated crimes, we went to see the family members of county murder victims who were black.

Had the prosecutor's rationale been correct, they would have told us that they asked him not to seek the death penalty. None said this. What they did tell us, time and again, was that no one from the district attorney's office had ever spoken to them, much less asked their opinion. I spoke with one woman who had lost both her sons to homicide. She cried so loudly during a preliminary hearing in one of the cases that she was asked to control herself or leave the room. She learned from the television news that the man accused of killing her son had pled guilty to a lesser offense. No one had contacted her about either killing.

In sum, none of the prosecutor's reasons for seeking the death penalty turned out to be supported by the evidence. Race did play a role in his decision-making, so much so that he did not even concern himself with the wishes of survivors who were not white. After a change of venue, a racially- mixed jury convicted Brooks of Jeanine Galloway's murder, but this time voted unanimously against the death penalty. His conviction was affirmed by the Georgia Supreme Court in 1992.

The findings in the Brooks case should not be totally surprising. The country is fascinated when a blonde child beauty queen is found dead in her parents' home, or a young white British nanny is thought wrongly convicted of killing her charge. Columbus, Georgia brought out all manner of detectives, investigators and helicopter searchers when Galloway, the victim in the Brooks case, disappeared. Rarely do black defendants or people of color victimized by sexual assault or murder so capture the headlines or garner public sympathy. Since the prosecutor's actions fit so seamlessly into the culture around him, it did not even occur to him how deeply race-based his decisions were.

Racism can also rear its ugly head in plea bargaining, the stage that often follows an indictment or pretrial litigation. In an effort to avoid the electric chair, Brooks offered to forego trial, accept a life sentence and give up all right to seek or accept parole. Our legal team drafted contracts and sought the input of the Georgia Board of Pardons and Paroles regarding their enforceability. Resolute that this was a "death case," the prosecutor refused to negotiate.

This insistence on a death sentence is often politically motivated. For example, the Muscogee County prosecutor asked one father of a white homicide victim whether he wanted the death penalty, and was told that he did. The District Attorney sought and obtained death in that case. The father later contributed $5,000 to the prosecutor's successful campaign for judge in the next election. In another Georgia case on retrial, the defendant offered to plead guilty in exchange for his life but was repeatedly rebuffed. Tony Amadeo's conviction had been reversed because at his first trial, the Putnam County District Attorney had sent a memorandum to the jury commissioners instructing them on how to avoid detection while limiting the number of minorities and women on the grand and petit jury rolls. The memorandum surfaced when Amadeo was in state postconviction proceedings, but the Georgia courts refused to find anything amiss. The United States Supreme Court ultimately reversed his conviction and death sentence in a unanimous opinion, noting that the prosecutor had used his office "so as to deliberately under-represent black citizens."

On retrial the same prosecutor insisted on having a second chance. He maintained that this robbery/murder was a classic death penalty case and had to be prosecuted as such. During pretrial litigation, we filed a "Motion to Disqualify the Prosecutor" on the basis of his conduct at the first trial. We sent with it an amicus brief from leading ethics professors and prosecutors in Georgia and elsewhere who demanded that the district attorney recuse himself on account of his previous odious act. The next day the prosecutor agreed to plead the case to a life sentence. . . .

We were lucky in the Brooks case to be able to establish as clearly as we did that racial bias, conscious or unconscious, was inextricably bound up with the prosecutor's decision to seek the death penalty. We were able to empirically refute the reasons the prosecutor gave for his charging decisions, and to provide some insight into how these glaringly disparate numbers came to be. To us, the numbers in Muscogee County spoke volumes about the role racial bias played in who was condemned to die.

We did not rest on statistics, however, because we knew that from a legal standpoint they had little significance. . .

The numbers that characterize the administration of the death penalty in this country are staggeringly disproportionate by race. That our highest judicial decision-makers are willing to embrace such assumptions in the administration of justice is profoundly disturbing. Until there is a recognition that racial bias is an influence in our system of criminal justice, we cannot be comfortable with the outcomes that system produces.

It is critically important that we explore these statistics, that we educate people about how they came to be, and that we continue to conduct the kinds of inquiries that exposed the biased approach in the Brooks case. Those of us concerned with racial justice should not rest until the existence of racial disparities in the criminal justice system is acknowledged and effective remedies are instituted.

1. Senior Attorney, Equal Justice Initiative of Alabama, Washington, D.C.