USA

"Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die." - Justice Blackmun, formerly of the US Supreme Court, 1994.

Extreme prejudice: Racism & the death penalty

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In 1996, 16-year-old Shareef Cousin became the youngest person on death row in the USA. The prosecution had hinged on the testimony of an eyewitness who told the jury she was “absolutely positive” that she had seen Cousin commit murder. After Cousin was convicted and sentenced to death, his lawyer saw a copy of the witness’s original police statement in which she said she couldn’t even describe the killer because “it was dark and I didn’t have my contact [lenses].”

In the same Lousiana district where Cousin was charged and convicted, a review of more than 400 homicide cases reveals troubling disparities in application of the death penalty related to race. Between 1990 and 1995, the Orleans Parish District Attorney sought the death penalty in 32 out of 44 cases in which black defendants were charged with the murder of a white person. By comparison, the death penalty was requested in fewer than one-third of cases of blacks accused of murdering blacks and just more than one-fifth of cases involving white defendants and victims. In this period, only blacks were actually sentenced to death.

A similar pattern can be found nation-wide. Although blacks and whites are the victims of homicide in roughly equal numbers in the United States, more than 81 percent of the 500 people executed between 1977 and the end of 1998 were convicted of the murder of a white person. At present, roughly half of the more than 3500 people on death row are people of colour.

Since Amnesty International’s campaign on human rights in the US began last Fall, Shareef Cousin’s conviction has been reversed on appeal and the murder charges against him dropped. These developments made Cousin the 76th person since 1977 to be exonerated of the charges for which they had been sent to death row.

But while these fortunate few have escaped execution, there’s no room for complacency about the death penalty. The pace of executions in the US is steadily mounting. Yet time and again US authorities have failed to deal with the overwhelming evidence that race, whether of the defendant or of the victim, is a critical factor in condemning the innocent and the guilty alike.

Shadows of the Past

Racism was once blatant in the US. Slavery, lynching and the slaughter of Native Americans were all highly visible manifestations of racism committed with the sanction or even active participation of the authorities.

Today, overt manifestations of racism would be unacceptable to the majority of US citizens. But, like many countries, the US continues to struggle with ongoing racial and ethnic divisions. Major steps taken over the past 50 years to end institutionalized racism have not eliminated the inequalities which many members of racial minorities continue to face in daily life.

What is true for US society in general also applies to the administration of the death penalty. Historically, the death penalty was applied in a manner that was openly and unashamedly biased against people of colour. Current procedures contain legal safeguards intended to prevent the discriminatory imposition of capital sentences. Yet despite these efforts, racial discrimination in the contemporary US legal system remains deeply ingrained.

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Ignoring the Evidence

In 1987, lawyers representing Georgia death row inmate Warren McCleskey took the issue of racism and the death penalty to the US Supreme Court. McClesky’s lawyers presented a rigorous statistical analysis of Georgia’s sentencing procedures. The study examined more than 2,000 murder cases. After accounting for some 200 variables such as the previous criminal record of the defendant, the study concluded that the odds of a death sentence in cases in which blacks killed whites were as much as 11 times higher than the capital murder of a black victim by a white person.

The Supreme Court accepted the validity of most of the study’s findings but ruled that “Apparent disparities in sentencing are an inevitable part of our criminal justice system.” In a 5-4 opinion written by Justice Lewis Powell, the majority maintained that statistical proof of bias in the sentencing process as a whole was not grounds to reverse an individual sentence. Nor did this statistical evidence invalidate the state’s sentencing procedures. Therefore, the Court ruled, the evidence presented in the appeal had failed to demonstrate that McCleskey, a black man found guilty of the murder of a white police officer, was treated injustly when he was condemned to death.

The consequence of that decision is that the burden is on the defendant to prove that prejudice impacted on the sentencing in his or her individual case. Short of an admission of racial bias by the prosecutor or jurors, this burden of proof is virtually impossible to meet.

Several years later, Justice Powell admitted he hadn’t fully understood the statistical evidence of prejudice in the McClesky case and wished he had voted differently. He said, “I have come to think that capital punishment should be abolished.” This change of heart came too late for McCleskey, who was executed in 1991.

Discretion and Bias

The death penalty is not mandatory for any crime in the US. Nor can it be applied except to a fairly narrow category of offences. In most US jurisdictions which retain the death penalty, the decision to seek its imposition is made on a case by case basis at the discretion of the local District Attorneys.

Given the overall absence of objective standards for filing charges, and the improbability that prosecutors can always rise above the racial biases that permeate US society, this discretionary power is an obvious source of injustice.

The administration of capital justice in Philadelphia appears particularly suspect. Of the 124 prisoners from Philadelphia on death row as of October 1998, only 15 were white.

A recent study found that, even after making allowances for various aggravating factors (such as the brutality of the crime or the previous criminal record of the defendant), Philadelphia prosecutors were much more likely to seek death sentences for black than other defendants who committed similar murders.

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Excluding Justice

Abuses of prosecutorial power are not limited to the selective laying of capital charges. The jury selection process for death penalty trials permits both the defence and the prosecution the right to exclude a certain number of individuals from the jury without giving a reason. In a host of cases involving black defendants, prosecutors have used this power to create all-white juries, in order to increase the likelihood of a conviction and imposition of the death sentence.

In 1986, the US Supreme Court ruled in Batson v. Kentucky that the removal of potential jurors on the grounds of race was unconstitutional One year after the Batson ruling, the Assistant DA for Philadelphia made a training videotape for the city’s prosecutors. On the video, he describes how to select a jury more likely to convict, including by removal of potential black jurors:

“Let’s face it, the blacks from the low-income areas are less likely to convict. There’s a resentment to law enforcement... You don’t want those guys on your jury... If you get a white teacher in a black school who’s sick of these guys, that may be the one to accept.”

The video also instructed the trainee prosecutors on how to hide the racial motivation for the rejection of prospective jurors.

The Batson decision has manifestly failed to prevent racial bias in the jury selection process. Proving “purposeful discrimination” is nearly impossible, since prosecutors need only provide plausible non-racial reason for dismissing potential jurors. As a result, people of colour facing possible execution continue to be tried by juries selected on the basis of race.

Killing With Insinuations

The prosecution’s job is to persuade the jury that the defendant is guilty. In capital cases, the prosecution must also convince jurors that the defendant merits the harshest penalty which the law can impose. In their zeal to obtain death sentences, some prosecutors play on the racial prejudices of the minds of jurors to incite animosity toward the defendant.

African American activist Mumia Abu-Jamal was sentenced to death in 1982 for the murder of a white Philadelphia police officer. The trial took place against a backdrop of longstanding tension and animosity between the predominately white authorities and many in the African American community.

The prosecution used 11 preemptory challenges to exclude potential black jurors. As a consequence, the jury consisted of 10 whites and two blacks, in a city that had a 40 per cent African American population. During the sentencing phase, the prosecutor cross-examined Abu-Jamal about a 12-year-old newspaper article that identified him as having been the communications secretary for the local chapter of the Black Panther Party when he was 16. In closing arguments to the jury, the prosecutor referred to the article to suggest that Abu-Jamal had demonstrated a rebellious attitude toward law and order, despite the fact that he had no previous criminal convictions.

Prejudicing the Defense

The prejudices of prosecutors and juries are not the only racial factors which threaten the impartiality of capital trials. Almost all people accused of capital crimes are impoverished and must rely on court-appointed lawyers to defend them at trial. Given the appallingly low standards of many court-appointed attorneys in numerous jurisdictions, there is an ever-present risk that minority defendants may be represented by lawyers who are not only incompetent, but also openly bigoted.

In at least five cases in Georgia, defence attorneys referred to their own clients during the trial by racial slurs, including “nigger”. In California, Melvin Wade was sentenced to death after being represented by an attorney who used defamatory language against blacks (including Wade), who failed to adequately present evidence of the childhood abuse suffered by Wade, and who asked that his own client be sentenced to death during the penalty phase of the trial.

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