Race to the Finish
Death Penalty and Race: Partners in Injustice
Our history shows that the death penalty has been unjustly imposed,
- Ramsey Clark
by Robert Dunham
For years, study after study has established a disturbing link between race and the death penalty. The concerns about racial discrimination in the administration of the death penalty persist in virtually every jurisdiction in which death remains a legal form of punishment, and appear intractable. And while the myth is widely held that racial discrimination in the death penalty is exclusively a Southern phenomenon, Philadelphia's death penalty has all the trappings of Southern death-belt racial discrimination ... and more.
Death penalty statistics shine an ugly spotlight on racial justice in the City of Brotherly Love. Philadelphia's death row of 135 men and women is larger than that of 42 states - 90% of Philadelphia's death row are racial or ethnic minorities. During one recent period in the mid 1990s, 40 of 41 defendants sent to death row by Philadelphia juries (97.6%) were black or Latino. As of 1 November, Pennsylvania Department of Corrections figures revealed that Philadelphia's ratio of African American-to-European American death row inmates is a shocking 8.69:1 - nearly 11 times worse than corresponding Department of Justice figures for death rows across the South.
A new study by the Pennsylvania Capital Representation Project, with an anticipated year-end release date, reveals that Philadelphia has placed the largest number and highest concentration of black defendants on death row of any major American city. Philadelphia is the only city in America with more than 100 African Americans on death row, and as of 1 July, had more than three times the number of African Americans on its death row than did any other comparably sized (1.35 million to 1.75 million) county in the country. The others, Clark County, Nevada, and Cuyahoga County, Ohio, had 31 and 23, respectively.
The upcoming report also discloses that, among comparably sized counties, Philadelphia had the largest number of minorities on death row (121); the highest percentage of African Americans on death row (83.6%) and the highest percentage of minorities on death row (90.3%). Philadelphia (census population 1.5 million) had 25 more African Americans on death row than any other county, regardless of size. Los Angeles and Harris County (Houston), with census populations of 9.5 million and 3.4 million, respectively, each had 87 African Americans on their death rows.
Among all counties in the country with 30 or more death-row inmates, Philadelphia also had the highest concentration of African Americans and minorities on death row, and the highest per capita minority death row population. The concentration of African Americans on Philadelphia's death row was nearly 35 percentage points higher than for Los Angeles and more than 25 percentage points higher than for Harris County. The concentration of all minorities on Philadelphia's death row was more than 22 percentage points higher than for Los Angeles and nearly 25 percentage points higher than for Harris County.
Not surprisingly, a comprehensive study of more than 10 years of first degree murder convictions in Philadelphia conducted by Professors David Baldus and George Woodworth of the University of Iowa - the nation's foremost researchers on race and capital punishment - published in 1998 in the Cornell Law Review provided powerful evidence that being black significantly increased the likelihood of receiving a death sentence in Philadelphia. Using the same analytic and statistic methodology routinely employed in widely accepted public health studies, the Philadelphia study revealed that race is statistically more likely to affect death sentencing than smoking is to affect the likelihood of a heart attack.
The key findings in the study included that black defendants in Philadelphia face odds that a jury will sentence them to death that are nearly four times higher than for non- blacks charged with similar offenses. Black defendants are more likely to be sentenced to death than other defendants. Killers of black victims are less likely to be sentenced to death than killers of non-black victims.
The study documented that in Philadelphia, the mere fact of being black is the statistical equivalent of the most important statutory aggravating factors as a basis for imposing the death penalty. In simple human terms, the results of the study showed that, if the effects of racial discrimination were removed from the process, 35 fewer African Americans would have been sentenced to death in Philadelphia in the years 1983 to 1993 alone.
The racially discriminatory imposition of the death penalty in Philadelphia capital cases is closely related to the racial profiling that is endemic in the selection of Philadelphia death penalty juries. Both the prosecution and the defense bar have been guilty of racial profiling, but the prosecution has historically been more successful in discriminating because its primary target group is a racial minority. Simply put, there are fewer blacks than whites to strike, and so discrimination against the smaller group has a disproportionate impact. And while race discrimination in jury selection is unacceptable whether practiced by defense lawyers or by prosecutors, it is particularly pernicious as part of the policy and practice of state officials.
The practice of racial profiling in the Philadelphia District Attorney's selection of death penalty juries is now well documented. In April 1997, in the midst of an election campaign for Philadelphia District Attorney, the District Attorney's office released a 1987 training videotape to the public that, in the words of the Pennsylvania Supreme Court, "denigrated as ridiculous'" the goal of selecting a fair and impartial jury and offered "various racial and gender stereotypes ... as reasons to discriminate in the selection of jurors." The tape "described in detail" techniques for discriminating in jury selection, "including the maintenance of a running tally of the race of the venire panel and the invention of pretextual reasons for exercising peremptory challenges; and a willingness to deceive trial courts to manipulate jury panels to these ends."
The tape included such statements as: "Let's face it, ... there's the blacks from the low-income areas[,] ... you don't want those people on your jury." "You know, in selecting blacks, you don't want the real educated ones." "In my experience, black women, young black women, are very bad." "You're not going to have some brain surgeon from Chestnut Hill with some nitwit from 33rd and Diamond."
Nor can the training videotape be dismissed as the statements of a rogue prosecutor. One local journalist reported that District Attorney jury selection training well into the 1990s showed that the practice had not changed. Notes from one of the lawyers present at the jury selection training program - conducted by another prosecutor several years after the videotaped training - disclosed that prosecutors were again taught such things as "The ideal jury, 12 Archie Bunkers, will convict on little evidence."
"If you wanted, you could strike almost all blacks. This gives you an advantage." Both training sessions told prosecutors to keep track of the race of jurors.
There can be little question that city prosecutors have systemically practiced what their trainers have preached. During the course of the landmark race study, Professors Baldus and Woodworth had noticed a statistically significant relationship between the racial composition of Philadelphia death penalty juries and the disproportionate rate at which these juries were sentencing African American defendants to death. This observation, coupled with the disclosure of the training tape, prompted a second Baldus study, published earlier this year in the University of Pennsylvania Journal of Constitutional Law, that demonstrated that the training techniques taught in the training videotape reflected practices long in place in the Philadelphia District Attorney's office. This second study tracked the District Attorney's jury selection choices over three prosecutorial administrations between 1981 and 1997, encompassing more than 10,000 choices to empanel or exclude prospective jurors. It revealed a consistent, historic pattern and practice of racial profiling by city prosecutors in the selection of capital sentencing juries. This study documented that city prosecutors peremptorily challenged black jurors from capital trials at double the rate that it challenged other jurors. The study also showed that racial profiling by the prosecution extended to the selection of non-black jurors: city prosecutors struck non-black jurors from integrated neighborhoods at twice the rate of jurors from highly segregated white neighbourhoods.
City prosecutors have publicly criticised the training videotape as advocating discrimination while at the same time arguing in court that it does not evidence any discriminatory policy or practice by the District Attorney's office. Instead of addressing the claims on their merits, however, city prosecutors have resisted every request to produce the notes of trial prosecutors that followed the practice espoused in the training tape to keep track of the race of jurors, have called the Baldus study "a fraud," and have personally attacked defense lawyers for "willfully slander[ing]" prosecutors by presenting historical evidence of discrimination. The personal attacks on Baldus and defense counsel who raise this issue are belied by the facts - both statistical and from the horse's mouth.
Indeed, in the case in which city prosecutors accused me of slander, a federal judge granted the defendant a new trial, finding that the prosecutor had discriminatorily excluded six black jurors because of their race. The supposedly "slanderous" evidence was that, during the course of 23 homicide prosecutions, the trial prosecutor had struck black jurors 3.3 times more frequently than white jurors, and 10 times more frequently in the case actually before the court. The prosecutor had stated on the record that she could not tell a juror's race simply by looking at him or her, but that she had struck 12 of the 14 jurors she thought were black. (She also stated on the record that people might mistake one Jewish juror as being black because the juror had curly hair.) The prosecution exercised 15 peremptory challenges in the case, 12 directed at African Americans, one at a Latino prospective juror and two at white prospective jurors.
The prosecutor also had opposed a defense motion to strike a juror for cause who had admitted feeling prejudiced against the defendant because he was black and the juror had twice been the victim of crimes committed by black perpetrators.
Other factors - some that on the surface appear to be race neutral - almost certainly influence the racially disproportionate application of the death penalty in Philadelphia. For example, Pennsylvania is one of only two states in this country that limits a jury's capital sentencing options to life without possibility of parole or death but does not instruct sentencing juries what a life sentence means. The National Jury Project survey of capital sentencing jurors reveals that, among all the life without parole states, Pennsylvania's jurors were the least informed as to the meaning of a life sentence. Fully half of the jurors surveyed believed that a defendant sentenced to life in Pennsylvania would receive parole after 12 to 14 years.
Studies uniformly show that jurors are more and more likely to return death sentences as they believe that defendants will serve less and less time in prison. But no one - not one person - in the history of Pennsylvania's death penalty statute who received a sentence of life without parole after being capitally prosecuted has ever had a reduction of that life sentence.
There can be little question that some unquantifiable number of capital sentencing juries have imposed death sentences out of fear caused by the false choice of sentencing options that results from the systemic failure to explain our sentencing option. The failure to provide a truthful life without parole sentencing instruction is facially race neutral, but as Willie Horton has taught us, the fear that a defendant will pose a future danger to society is not.
When prosecutors select for racially insulated white jurors who are the most geographically isolated from African Americans, they select for jurors who are the most fearful of black defendants and most likely to mete out a death sentence out of erroneous fear of the defendant's future release.
Similarly, Pennsylvania's aggravating circumstances that support imposition of death are facially race neutral, but are not necessarily race neutral in application. The facially neutral aggravating circumstance that a defendant has a significant history of prior felony convictions involving the use or threat of violence - which has been judicially interpreted to include non-violent burglaries and criminal trespasses, as well as juvenile adjudications for offenses equivalent to burglary and trespass - will not be race neutral in application if minority offenders are disproportionately the subjects of the juvenile justice system, disproportionately prosecuted for burglary and trespass, and are disproportionately convicted.
But this is what a recent study by the National Council on Crime and Delinquency suggests. More black defendants will have a history of felony convictions than white defendants, for the same conduct. And the more racially isolated and fearful the jury, the more likely they are to deem that history "significant" and to find it decisive as a basis to sentence the defendant to die. And so it goes. The influence of race permeates the death penalty, in Philadelphia and nationally.
Its pernicious effects have placed defendants on death row who, but for their race, would have been spared death, and perhaps acquitted. And even where its effects cannot be quantified, the specter of discrimination undermines confidence that justice will, or even can, be done in capital cases, and in the integrity of the judicial process.
Robert Dunham is the director of training for the Capital Habeas Unit of the Pennsylvania Capital Representation Project of the Philadelphia Federal Defender.
Source: counterpunch.org 10 December 2001
In 2005, the US Supreme Court will decide on the legality of PRISON SEGREGATION: Can state prison officials separate inmates based on the prisoners' skin color? (Johnson versus California, 03-636) The argument was heard 2 November 2004.
Justices Weigh Executions of Young Killers
by Linda Greenhouse
Washington - If American society has indeed reached a consensus that the death penalty should not apply to those who kill at age 16 or 17, as the lawyer for a young Missouri murderer argued to the Supreme Court on Wednesday, no such consensus was apparent among the justices themselves. Two years after ruling 6 to 3 that the execution of mentally retarded offenders is categorically unconstitutional, the court appeared deeply divided over whether the reasoning of that decision meant that the death penalty for acts committed while a juvenile should likewise be seen as "cruel and unusual punishment" in violation of the Eighth Amendment.
The Missouri Supreme Court reached that conclusion by a 4-to-3 decision in August 2003, freeing Christopher Simmons from death row for a murder he committed in 1993 when he was 17. It resentenced him to life in prison without parole. Missouri appealed to the United States Supreme Court, arguing that the state court lacked authority to reject the Supreme Court's last decision on the question, a 1989 ruling that upheld capital punishment for 16- and 17-year-olds. A 1988 decision barred the execution of those who killed when they were younger than 16.
Seth P Waxman, representing Mr Simmons, argued that not only the increasing rarity of juvenile executions since 1989 but also new medical and psychological understanding of teenage immaturity validated the step the Missouri court took last year. "These developments change the constitutional calculus," Mr Waxman, a former United States solicitor general, told the justices. The new scientific evidence, described in briefs filed by the American Medical Association, the American Psychological Association and other professional groups, "explains and validates the consensus that society has drawn," he said.
Justice Antonin Scalia countered: "If all this is so clear, why can't the legislature take it into account? All you have to do is bring these facts to the attention of the legislature." Mr Waxman replied that the number of states that actually execute people for crimes committed as juveniles is "very small." While 19 states nominally permit the execution of 17-year-old murderers, only three states - Texas, Virginia and Oklahoma - have executed juvenile offenders in the past 10 years. Oklahoma has no juvenile offender on its death row. Virginia has one, and a jury there refused last year to impose a death sentence after finding Lee Malvo, the teenage member of a pair of Washington-area snipers, guilty of murder. Texas, with 29 inmates now on death row for juvenile crimes, accounts for more than half the executions of juvenile offenders, 13 of 22, carried out in the United States since the modern era of capital punishment began in 1976. There were 2 juvenile death sentences imposed in the United States last year and 1 so far this year, down from 14 five years ago.
Justice Scalia told Mr Waxman he was not surprised by the low numbers. They demonstrated juries' ability to take a defendant's youth into consideration, he said, adding that the question was whether to leave it to juries or to impose a "hard rule."
Chief Justice William H Rehnquist challenged Mr Waxman on whether the scientific evidence contained in the briefs was even appropriate for the court's consideration. Noting that the studies had not been introduced at Mr Simmons's trial, he said, "You're talking facts, and facts are ordinarily adduced at trial for cross-examination."
Mr Waxman, temporarily nonplussed, replied: "The issue for this court is not the application of law to a particular defendant, but what the Constitution requires as a matter of law."
Justice Anthony M Kennedy asked Mr Waxman whether he would lose the case if the court accepted neither the scientific evidence nor the existence of a consensus.
"This is truly a case in which the whole is greater than the sum of the parts," Mr Waxman replied. Four justices - John Paul Stevens, David H Souter, Ruth Bader Ginsburg and Stephen G Breyer - have made clear in recent years their desire to invalidate the juvenile death penalty. "The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilised society," the four wrote in October 2002, dissenting from the court's refusal to grant a writ of habeas corpus to a Kentucky inmate, an action that required five votes. Just as clearly, Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, the three dissenters in the retardation case, will not vote to extend that decision to juveniles. With these facts known to most people in the courtroom, the focus of attention was on Justice Kennedy and Justice Sandra Day O'Connor, both of whom rejected the challenge to juvenile executions in 1989 and at least one of whom must repudiate that precedent if Mr Simmons is to prevail.
Justice O'Connor, usually an active participant in the court's arguments, made only one comment, to James R Layton, Missouri's state solicitor. She noted that the number of states that have rejected execution of those younger than 18 was "about the same" as the number that had rejected execution of the retarded in the years leading up to the court's ruling in that case. Of the 38 states with a death penalty, 19 have a minimum age of 18. In 2002, 18 states barred execution of the retarded. "Are we at least required to look at that?" Justice O'Connor asked.
Mr Layton replied that the retardation case, Atkins versus Virginia, took account of an "inexorable trend" among the states, and "we don't have that here." In the retardation case, there had been what the court called a "dramatic shift in the state legislative landscape," with only two states having barred execution of the retarded as recently as 1989. In fact, Justice Stevens, in his majority opinion in the retardation case, went out of his way in a footnote to contrast that shift with the much slower rate of change on the youth question. The footnote may have been necessary to hold the vote of Justice O'Connor or Justice Kennedy.
On Wednesday, Justice Kennedy appeared deeply conflicted throughout the argument. He said he was concerned that drawing the line at 18 might induce teenage gangs to designate their 16- or 17-year-old members as "hit men." A brief filed by Alabama that contained grisly descriptions of murders committed by teenagers made for "chilling reading," Justice Kennedy said, adding that he wished all those who had signed briefs for Mr Simmons "had read it before they signed on." This led Justice Stevens to say that the death penalty did not seem to have deterred those crimes, all of which took place in states that permit the execution of juvenile offenders.
The case, Roper versus Simmons, No. 03-633, has attracted wide interest overseas, with briefs for Mr Simmons signed by the European Union, the 45-member Council of Europe, and other organisations. The United States and Somalia are the only nations that have not formally repudiated executing juveniles. A brief filed by former United States diplomats asserted that the situation was an irritant in international relations.
"Should the court give that brief any credence?" Justice Stevens asked Mr Layton. "No," Missouri's lawyer replied, the question remained one for legislatures and not courts.
Source: nytimes.com The New York Times 14 October 2004
The decision should be handed down in the first half of 2005.
Death Penalty and Gender
Bigger Share of Female Inmates Killers
by Polly Greeks and Chloe Groser
Far fewer women than men are in New Zealand prisons but they are more likely to have committed a homicide, according to a Department of Corrections census of inmates. Of 233 female inmates, 30.4% were imprisoned for homicide, compared with 21.9% of the 5,647 male prisoners. The census was carried out in November 1999 and results were released last month.
The other main female offences that led to imprisonment were property-related, making up nearly 30%. This compared with 21% of men who were jailed for property-related offences.
A reader in criminology at Victoria University, John Pratt, said the statistics reflected the different patterns of crime for men and women. "Women tend to mainly commit crimes of dishonesty because of severe economic hardships, or they commit murder because of dysfunctional domestic situations," Dr Pratt said.
David Hagar, secretary of the Howard League for Penal Reform, said women did not commit violent offences as often as men. "Women don't go out in the middle of the night and bash someone over the head with a softball bat. They are more likely to resort to their brains than their brawn to commit a crime." He said there would always be more men in prison than women because violent offending held harsher penalties than crimes for fraud. The census showed a 48% rise in the total number of female inmates since 1991. Dr Pratt said this was typical of many other penal systems. He said it did not necessarily reflect an increase in female crime, but could reflect changes in sentencing.
More than half of all inmates were younger than 30, with more than a quarter first imprisoned as teenagers. Dr Pratt put that down to offenders growing out of the desire to commit crimes. "After a while it just becomes too much like hard work," he said.
Maori inmates dominated both male and female prison populations. The number of Maori and Pacific Island male inmates younger than 20 years was almost double that for Europeans. Eight percent of imprisoned males were patch members of gangs, most belonging to the Mongrel Mob or Black Power. Crimes of sexual violence were proportionally lower among inmates with gang affIliations. Dr Pratt said this showed a shift in the behaviour of gangs.
There were 345 sentenced inmates under psychological supervision.
Source: The Evening Post Thursday 4 January 2001
Killer Hooker Put to Death
Starke, Florida - Aileen Wuornos, a hitchhiking prostitute who killed 6 men along Florida's highways more than a decade ago, was executed by lethal injection yesterday after dropping her appeals and firing her lawyers. Wuornos, 46, became the 10th woman executed in the US since capital punishment resumed in 1977. Oklahoma has put 3 women to death; Florida and Texas have executed two each.
In her final statement Wuornos referred to Jesus - and a movie. "I'd just like to say I'm sailing with the Rock and I'll be back like Independence Day with Jesus June 6, like the movie, big mother ship and all, I'll be back," Wuornos said.
The execution had been delayed while experts evaluated Wuornos' mental health. Governor Jeb Bush lifted his stay last week after 3 psychiatrists concluded she was competent to choose execution. Wuornos shot to death at least 6 men along Florida highways in 1090 and 1990. Her story has been portrayed in 2 movies, 3 books and an opera. She initially said the killings were in self-defence after she was assaulted by johns who picked her up. But she later said that the self-defence claim was a lie and that she intended to rob and kill the men.
At a hearing in July, Wuornos told a judge she was "sick of hearing this 'She's crazy' stuff. I'm competent, sane and I'm telling the truth." She also told the state Supreme Court she would kill again. Wuornos' death warrant was for her first victim, Richard Mallory, an electronics-shop owner. She later pleaded no contest to 5 other murders.
She spent Tuesday night visiting with a childhood friend, Dawn Botkins, who said Wuornos was in a good mood, laughing a lot and never crying. "She was looking forward to being home with God and getting off this Earth," Botkins said. "She prayed that the [souls of the] guys she killed are saved, and that by her dying they will be saved."
Terri Griffith, whose father was killed by Wuornos, said, "I'm glad it's over. It was an easy death. It was a little bit too easy. I think she should have suffered a little bit more. She was off her rocker."
Source: New York Post Thursday 10 October 2002 nypost.com from Associated Press
Perhaps Ms Griffith wanted Ms Wuornos to be tortured just a little?
Death Penalty and Sanity
Insane Prisoner Ordered to Take Drugs So He Can Be Legally Executed
by Rupert Cornwell
A United States federal appeals court has ruled that a mentally ill death row inmate can be forcibly treated with anti-psychotic drugs to make him sane enough to be legally executed. In a 6-5 vote, the 8th Circuit court in St Louis found that "involuntary medication followed by execution" was "a better choice" than withholding drugs, followed by psychosis and imprisonment. The ruling is likely to be appealed to the Supreme Court, which in 1986 barred the execution of insane prisoners.
Charles Singleton was convicted of killing an Arkansas grocery store worker in 1979. He has been on death row ever since. His mental health began to worsen and in 1987 he came to believe his cell was inhabited by demons and that a prison doctor had implanted a device in his ear. Singleton has since been given anti-psychosis drugs, sometimes voluntarily, sometimes by force.
The hearings in St Louis produced almost surreal exchanges, with Arkansas prison officials arguing that Singleton had to be medicated to prevent him being a danger to himself and to others. But his lawyer said forcible medication became illegal once an execution date was set as it was no longer in his ultimate medical interest. The defence also argued that without drugs, the prisoner could not understand his punishment. One dissenting judge wrote in a minority opinion: "Receiving treatment is not the same as being cured. Drug-induced sanity is not the same as real sanity." The judge acknowledged that doctors treating a mentally ill inmate faced an untenable choice between making him or her fit for execution, or withholding treatment and condemning the prisoner to Singleton's life of hallucination and delusions.
For foes of the death penalty, the answer is simple: abolish it for all prisoners in this situation. The American Medical Association agrees, holding it unethical for a doctor to give treatment that makes someone competent to be put to death. To what extent, one specialist asked, "can a government take invasive, involuntary action using medical personnel who are sworn to save life" when the result is the patient's execution? In October 2001, a panel of the 8th Circuit ruled that Singleton be sentenced to life without the possibility of parole. The state appealed, and the court has now reversed that decision. But Singleton's lawyer, Jeff Rosenzweig, asked: "What is the power of the state to give medical treatment that has the effect of causing his execution? You should forbid execution under those circumstances."
The Death Penalty Information Centre contends that 44 mentally retarded people were executed between 1976 and last year. In one instance, Governor Bill Clinton of Arkansas left the 1992 presidential campaign to fly home for the execution of Rickey Ray Rector, a murderer who shot away part of his brain in a suicide attempt after he had shot and killed a police officer. Rector was so brain-damaged, his lawyers said, that he asked that his pecan pie be put aside for him to eat as a snack after his execution. Clinton rejected his final appeal for clemency. - Independent
Source: The New Zealand Herald 13 February 2003
For more articles on capital punishment, see also these pages found elsewhere in this section on prisons:
I would also like to recommend the excellent book Newjack, by Ted Conover, which details what it's like to be a prison guard. Some guards manage to hang on to their humanity but none leave the job without being profoundly affected.
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