Reflections on Race and the Death Penalty

(Dr. Sherri Lynn Johnson, Professor of Law at the Cornell University School of Law, gave a speech, “Race and the Death Penalty: Is Justice Color Blind?” on April 15 at the Widener University School of Law in Wilmington.  This forum was co-sponsored by Delaware Citizens Opposed to the Death Penalty, the Law and Inequality Project of Widener University School of Law, Phi Alpha Delta of Widener University School of Law, Wilmington Friends Meeting Ad Hoc Committee on Peace, Pacem in Terris, and the ACLU-Delaware.  This article is based on notes taken Mary Starkweather-White.)

Two passions have moved Dr. Johnson’s professional life: the issues of race in criminal justice and the death penalty.  As an academic, she has studied the influence of race in criminal justice.  When she was working with The Legal Aid Society: Criminal Appeals Bureau in New York City following graduation from Yale Law School, she got the impression that race is a significant factor in capital cases. The ACLU has acknowledged this and says that the issue of race is more prevalent in capital cases than in other criminal cases.  Dr. Johnson believes that race is uniquely present in death penalty cases and she has never seen a capital case where race did not play a role. From her vantage point, anyone committed to racial equality has to be committed to ending the death penalty.

Dr. Johnson announced that she was going to speak about three different things: 1) Data about race and the death penalty; 2) Why does race matter?; 3) What are remedies, besides abolition?  

1) Data about Race and the Death Penalty

Before there was an abolition movement, there was an interest in race and the death penalty.  The Legal Defense Fund of the NAACP found lots of racial disparities and  originally thought the death penalty was flawed, but eventually decided to oppose it completely. The Legal Defense Fund collected data in the early years. It found that although no white man was ever sentenced to death for the rape of a white woman; typically, there was a death sentence when the rape victim was white and the defendant was black. The death penalty was used against black defendants, because of all of the discretion that was given to judges.

The abuse of this discretion was later found by the Supreme Court to be unconstitutional in the case of Furman v. Georgia in 1972. The Supreme Court called for states to get rid of unlimited discretion and use instead “Guided Discretion.”  The Court said it was acceptable to do this through the promulgation of laws about mitigating and aggravating circumstances, and imposed a de facto moratorium on the death penalty while states passed new laws governing capital punishment in accordance with the dictates of the Court.  In the case of Gregg v. Georgia in 1976, the Supreme Court said that the new laws bifurcating capital cases into a guilt/innocence phase and a punishment phase looking at aggravating and mitigating factors were sufficient to render the process constitutional.  Although one small study which examined several death penalty cases supported the Court’s decision, in practice the idea that guided discretion would end discrimination in death penalty cases has proven false.

David Baldus conducted a study of the application of the death penalty in Georgia in order to determine racial bias. He knew that there would be resistance to a finding of discrimination, so he looked at 230 variables that could explain a death sentence.  He controlled for all these things and still found that if someone in Georgia who was black killed a white person, he was 4-1/2 times more likely to get a death sentence than a white defendant. If the victim was black, the chances were upped by  only 10%.  This Baldus study was the statistical basis of the case of McCleskey v. Kemp (1987) that went to the  Supreme Court.  However, the Court said: "So what.”  The Court said they could not know what this means or whether these cases were worse, and if they questioned these matters, the death penalty would fall apart. Therefore, statistical proof is not enough to prove racism and that some racial bias is inevitable and acceptable.

David Baldas said he would put together more proof, so he next looked at Philadelphia, a northern city.  In his study, he also made independent ratings of the charges brought against the defendants, how bad the cases were (how bad the crime was, what mitigating thing the defendant could say on his behalf, etc.)  What he discovered was not only data about the race of the victim, but also discovered race of the defendant effects.  He found that the influence of the race of the defendant increased enormously.  A black defendant who killed a white victim was 4 times as likely to receive the death penalty.  Evidently, the greater amount of information available about the case, the more racial discrimination was apparent. This was also found in studies in Maryland.  Baldus did studies in North Carolina and found that prosecutors were more likely to seek death when the victim was white. In Spartanburg death was sought in 40% of cases where the victim was white and in none where the victim was black. There was also discrimination against a black defendant. Virtually all studies (including the review of studies done by the Government Accounting Office of the federal government) showed significant racial disparities both in race of victim and race of defendant. Every study found a race of defendant effect when there was a white victim. They showed that a murder of a white victim led more often to an execution, but that the chance of this was substantially increased if the defendant was black.

Race influences jurors as well. The Capital Jury Project, which did a series of quantitative and qualitative studies of how race affects juries, found that a death sentence was more likely if there was a black defendant. White jurors were less likely to find defendants of color remorseful, contrite, sincere, etc.  In mock jury studies that have been set up with fewer variables, they found that mock jurors were harder on black defendants in the middle-range of capital cases. In a combination of studies with real world data, race determines who gets the death penalty.  In using the Philadelphia data, Dr. Johnson looked at white victim cases, then black on white murders. If the black looked "stereotypically" black, he was twice as likely to get the death penalty as a "white-looking" black.  She co-authored literature that looked at cases where the prosecutor used animal imagery: "looked for his prey", "stalked his prey,” "animal,"--those words were used twice as often if the defendant was black and were more likely to elicit a death penalty. There is evidence that race does make a difference.

2) Why does Race Matter?

The Supreme Court says not to assume bias, yet, the evidence shows that it does matter in capital litigation.  This bias can happen in two different ways.  Firstly, there are many different participants in capital trials and some are motivated by racial animosity. Dr. Johnson said that she was working on a trial in the south and she talked to one of the police officers involved in the case.  He later took her out to a field where he had told a black defendant to get out and run [if he didn’t want to get shot].  When she asked the officer why he was showing her the field and telling her this, he said, “Because the jurors and the court would not believe Sterling (the defendant) if he told them about this, and they wouldn’t believe you either.”  In another case a psychologist, serving as an expert witness, said that a defendant was not retarded when his IQ was below 70, because he was just an African American and that is what one should expect.  To the psychologist, the man’s IQ did not indicate mental retardation and the defendant was eligible for the death penalty.  Fortunately, the judge did not see it that way.

Some prosecutors deliberately decide to seek the death penalty based on race. One prosecutor said that he had never sought the death penalty in the case of a black victim. The worst thing is what the prosecutors say in court during summation. In a South Carolina case, during summation, the prosecutor said that it was a case of "King Kong and Blondie".  Others have used terms like "Super Fly", "shucking and jiving" and "boy". Some people feel racial animosity or they may assume that they can use this kind of language, because others at the trial feel the same way.  There are also defense attorneys who use racial slurs and have racial animosities towards their clients.  At one trial, the defense attorney actually said, "That little N----- deserves the chair," and the court did not object. In another case, a black defendant said, "I want a new lawyer. He called me dumb."  The white lawyer when asked about this, said, "I don't recall," and the judge did not excuse the lawyer.

Judges may also carry their own biases and animosities.  One judge who had been in the state legislature before coming to the bench had a known record of discrimination and had introduced legislation requiring separate blood supplies for whites and blacks.

Dr. Johnson feels that there is somewhat less of this type of overt racism now, especially when it comes to conscious racism.  But, there is still a great deal of unconscious racism. An Implicit Bias Test shows that 80% of Americans equate white with good and black with bad.  In perception tests to gauge whether someone was seen as having a tool or a weapon, they found that people, whether they were black or white, both assumed that the black man had a gun and more often would shoot blacks without guns. This bias is not only in our culture; the animal part of our brain responds differently when we have a conflict with someone of a different race. White subjects when they have a conflict with someone black, stay angry longer. This response is not biological but is influenced by a lifetime of images of blacks as less than human, more likely to be animal like, etc. Even when one hears the same evidence, the evidence is viewed differently if it is about someone of a different group. This is also true of defense lawyers and judges.

3) What are Remedies, besides Abolition?

The sentencing of someone to death is so discretionary, and given that racial bias is so prevalent and embedded in our culture, the death penalty cannot be fixed. To Dr. Johnson the only real answer is abolition, but she knows that not everyone can accept this, so she discussed some things that would limit the impact of race.  1) One of the ways to limit the influence of race is to change the decision-makers. Under Janet Reno, decisions were made in a way that was race-blind. They were made in a central location away from the community with no information about the race of the parties.  2) A second method to lessen the role of racial bias would be to make jurors more diverse.  We need to be more selective in choosing juries.  During the Voir Dire stage of the selection of jurors, we need to ask potential jurors in a more sensitive way about their racial bias in more extensive and private ways to elicit thoughtful, truthful answers.  Reference to race in a capital case should bring an automatic reversal.  Racial bias is an outside influence that should be considered; we should allow the jurors to impeach themselves on race. 3) We need to change the funding of defense attorneys in states that do not have a public defender system, in order to get rid of court appointed defense attorneys who put little effort into their representation because they are so underpaid.  They may be so incompetent, that they are only in it for the money. We need more money to pay for good attorneys who will adequately defend their clients.  4) We need to narrow the death penalty statutes.  For example, we could make only things like multiple murders and terrorism aggravating circumstances that are death penalty eligible.  Instead, some states are actually moving in the opposite direction. Louisiana enacted a death-penalty child rape statute, so we have actually expanded the number of cases that are death penalty eligible.

Dr. Johnson concluded by saying that since we have dehumanized people in our culture through racism, and the end of racism in our society is so far down the pike in the future, we cannot administer capital punishment fairly, so we should abolish the death penalty now.

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