IS THE DEATH PENALTY RACIALLY DISCRIMINATORY?
THE "YES" POSITION
Empirical Research on Racial discrimination in the Imposition of the Death Penalty
By: Adalberto Aguirre, Jr., and David V. Baker
The U.S. Bureau of Justice Statistics (1985) reports that between 1930 and 1984 there were 3,891 prisoners executed under civil authority in the United States. Of these figures, 2,067 (53.1%) were black, 1,773 (45.5%) were white and 42 (1.0%) were of other races. There were 1,640 (48.7%) blacks and 1,686 (50.8%) whites executed for murder. Racial disparity in imposing the death penalty becomes even more clearly defined among executions for rape. Of the 455 executions for rape during this period, 89% (405) were of blacks and 10.5% (48) were of whites. The South executed 98.3% (398) of all blacks executed for rape. While the north central region of the country executed the remaining seven blacks executed for rape, the western and northwestern sections have never executed a black for rape. The District of Columbia, Virginia, West Virginia, Mississippi, Louisiana and Oklahoma have never executed a white for the crime of rape.
Given that blacks have consistently represented about 11% of the total American population since 1930, these statistics overwhelmingly indicate that the death penalty has been disproportionately applied to blacks. Blacks have been executed for murder at over five times the rate of executions for whites, and blacks have been executed for rape at about nine times the execution rate than whites. These statistics alone do not show that racial discrimination has characterized the imposition of the death penalty to blacks. But a number of empirical studies have shown that in the case of blacks, disproportionality in the application of the death penalty amounts to racial discrimination. The purpose of this paper, then, is to review the empirical studies that have established rather pervasive evidence that the death penalty has not only been disproportionately applied to blacks convicted of rape and murder, but that the death penalty has been imposed on black prisoners in a discretionary and discriminatory manner. This review will clearly illustrate that racial discrimination has become so well entrenched and routinized in imposing the penalty of death on blacks that it has developed into a "systematic pattern of differential treatment" of blacks.
Many studies have documented evidence of racial discrimination in the in position of the death penalty on blacks. These studies will be reviewed in relation to whether they were conducted before, during the interim, or after the United States Supreme Court decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976). The Furman decision basically held that all death penalty statutes in the United States were unconstitutional because they permitted capital punishment to be applied in a discretionary and discriminatory manner amounting to "cruel and unusual punishment" in violation of the Eighth Amendment of the U.S. federal Constitution. The Furman decision did not abolish capital punishment in the United States; the court argued that the death penalty."in and of itself" does not constitute cruel and unusual punishment, but, the capricious manner in which the penalty had been applied in the cases before the court at the time of Furman was held unconstitutional. In the Gregg decision, the court attempted to curb the extent to which the death penalty was applied to blacks in a discretionary and discriminatory manner by providing for guided discretion in capital sentencing. The court affirmed the death sentences of the cases under review in Gregg because the states from which the cases had originated, in their capital statutes, had directed attention to the circumstances of the crimes and provided for consideration of mitigating factors designed to protect against arbitrary imposition of the death penalty.
PRE-FURMAN STUDIES
The earliest study of black-white differentials in the administration of justice was completed by Brearley in 1930. Brearley found that among 407 homicide cases in South Carolina between 1920 and 1926, 52% of the accusations resulted in guilty verdicts. Of these convictions, 64% involved black defendants and 32% involved whites. Brearley... attributes this finding to "such factors as race prejudice by white jurors and court officials and the Negro's low economic status, which prevents him from securing 'good' criminal lawyers for his defense" ...
As early as 1933, Myrdal reported that in ten southern states: "The Negro constitutes less than thirty percent of the population in these states, but has more than twice as many death sentences imposed. Actual executions make the racial differential still greater, for 60.9% of the Negro death sentences were carried out as compared with 48.7% of the white" . . .
In 1940, Mangum studied racial disparities in imposing the death penalty in several southern states. In his book The ~gal Status of the Negro, Mangum reports that for the years 1920 to 1938, 74% of the blacks and 50% of the whites sentenced to death were executed....
Allredge (1942) reported that conviction rates for criminal homicide dramatically differed for blacks and whites in several regions of the South from 1940 to 1941. Allredge found that 89% of the blacks accused of murdering whites were convicted; 67% of the blacks accused of killing blacks were convicted; 64% of the whites accused of murdering whites were convicted; and only 43% of the whites accused of murdering blacks were convicted....
Johnson (1957) studied rape cases resulting in the application of the death penalty in North Carolina between 1909 and 1954. He found that 56% of all persons executed during this period were black, and 43% were white. Johnson's study concluded that blacks were far more likely to suffer the death penalty for rape than whites convicted of rape.
The Florida Civil Liberties Union reported similar findings from a study conducted in that state in 1964. In Florida between 1940 and 1964, 54% (45) of the black males who raped white women, but none of the eight white males convicted of raping a black female, received the death penalty....
Kleck (1981), who has critically evaluated the studies on racial discrimination in the use of the death penalty conducted prior to the Furman decision, makes two observations about these various studies. First, he argues that while there are conclusive patterns of racial discrimination against blacks in the use of the death penalty, these patterns are mostly restricted to the imposition of the death penalty in southern states. On this point, however, Kleck is incorrect. While racial disparities in imposing the penalty of death are more pronounced in the South, studies by the Ohio Legislative Service Commission (1961), Wolfgang et al. (1972), Zimring et al. (1976), Carter and Smith (1969), Kalven (1969), Bowers and Pierce (1980), Bedau (1964, 1965), and Gross and Mauro (1984, 1989) have shown that patterns of racial discrimination in presentencing, sentencing, and postsentencing decisions are not simply restricted to southern jurisdictions.... Gross and Mauro (1984), in fact, have commented on Kleck's conclusion. They note that "(t)o say there is no racial discrimination in capital sentencing, except in the South, is a bit like saying that there is no housing discrimination in a metropolitan area, except in the major residential district.". . .
The second observation made by Kleck is that black defendants who murder black victims are the least likely defendant-victim category associated with the death penalty outside of the South. This observation has substantial merit, as noted above. In attempting to explain the apparently lenient treatment of black defendants convicted of murdering a black victim, Kleck suggests that "interracial crimes... are considered by [the] predominantly white social-control agents to be less serious offenses, representing less loss or threat to the community than crimes with white victims"....
Review of pre-Furman studies on capital punishment demonstrates that the death penalty was systematically applied to black defendants in a discretionary and discriminatory manner. We have seen that this practice has not simply been relegated to the South, but that racial discrimination in the use of the death penalty has been a national characteristic. More over, these various studies illustrate the extent to which racism has permeated the criminal justice institution in the United States....
THE INTERIM PERIOD(POST-FURMAN, PRE-GREGG)
Several studies have been conducted on racial discrimination during the interim period after Furman was decided by the U.S. Supreme Court in 1972, but before the court handed down its decision in Gregg in 1976. One of the most important studies conducted during this period compared the racial composition of offenders under the sentence of death in December 1971 (pursuant to pre Furman capital statutes) with offenders under the sentence of death as of December 1975 (pursuant to mandatory and discretionary post-Furman capital statutes). Riedel (1976) not only found that the racial disparities affecting death row inmates in the pre-Furman era remained unchanged in the post-Furman period, but also that black defendants white victims was the racial category with the highest rate of death sentences imposed. Riedel reported that 53% of the death row inmates in December 1971 were nonwhite, and that this figure rose to 62% in December 1975. While the racial disparity of death row populations in the South had declined from 67% to 63% during this period, the western region of the United States increased its degree of racial disparity of black/white death row inmates from 26% to 52%. From these figures, Riedel concluded that the statutes enacted before and after the Furman decision produced the same degree of racial disproportion in death sentences.
Riedel also round that 87% of the death sentences were for white-victim murders, and 45% were for the murder of white victims by black defendants. The degree of racial disparity in death sentences is even more pronounced in this period (1971-1975), and the white victim-black defendant category comprised the smallest proportion of the total number of murder cases.
In a study of first-degree murder prosecutions in Dade County, Florida, from 1973 to 1976, Arkin (1980) reported that black defendants who murdered whites were more likely to be sentenced to death than white defendants. Arkin's data reveal that black offenders who killed whites were convicted of first degree murder about four times more often than blacks who killed blacks. While the black offender/white victim category of criminal offense comprised only 21% of the 350 murder cases prosecuted, 50% of the cases resulting in death penalty sentences came from that category of offender....
In sum, these studies show that the Furman decision had little or no diminishing effect on the extent to which black capital offenders were subjected to racial discrimination in imposition of the death penalty. As noted, the Furman decision ruled that discrimination in applying the death penalty is blatantly unconstitutional. These studies show, however, that the death penalty was still used as a mechanism by which to protect a specific class of individuals-namely whites- from criminal victimization. Black defendants whose victims were white were overwhelmingly convicted and sentenced to death when compared to other racial categories of defendant-victim. Furman had no demonstrable effect on the manner in which the death penalty was being applied in this country.
POST-GREGG STUDIES
In Gregg, the U.S. Supreme Court upheld the constitutionality of the death penalty for murder. The court affirmed the convictions because the states from which the capital cases originated had provided for: bifurcated trials (one trial to establish the guilt of the defendant, and another trial to determine an appropriate sentence); consideration of mitigating circumstances of the defendant and the crime; and appellate review of capital sentences. These guidelines were affirmed by the court because they were specifically designed to prevent arbitrary and discriminatory imposition of the death penalty....
Within the past few years, empirical analyses have revealed that the guide lines established in Gregg have failed to eliminate racial disparities in capital cases. One of the most extensive studies analyzing data collected after the Gregg decision was conducted by Bowers and Pierce (1980). Bowers and Pierce examined patterns of death sentencing in Florida, Texas, Ohio, and Georgia from 1972 to 1977.... Basically, Bowers and Pierce found that the decision to execute in these states reflects the same arbitrariness and discrimination that has characterized the imposition of the death penalty in the past (before the Furman and Gregg decisions). In each of these states, Bowers and Pierce found that killers of whites were more likely to be sentenced to death than killers of blacks, and that black defendants with white victims were more likely to receive the death penalty than white defendants with black victims. In Florida, black defendants with white victims were found to have a 22% chance of being sentenced to death; white defendants with white victims had a 20% chance; and black defendants with black victims had a .6% chance. It should be noted that in Florida, no white was sentenced to death for the killing of a black. Georgia and Texas had somewhat lower rates of death sentences according to defendant-victim categories, but the pattern of racial discrimination in imposing the death penalty in particular defendant-victim racial combinations still prevailed.... More specifically, black defendants with white victims were eight times more likely to be sentenced to death than black defendants with black victims. In addition, Florida prosecutors overcharged non-felony homicide cases involving black killers of white victims as felony homicides. Bowers and Pierce have pointed out that the data on felony homicides suggests that "in black of fender/white victim cases, prosecutors may have alleged felony circumstances to enhance their plea bargaining positions or as a demonstration of concern for the kinds of crimes the community finds most shocking."... Likewise, in Florida and Georgia, appellate review of capital sentences did not correct for pat terns of racial discrimination in imposing death to blacks. Thus, the guidelines established in Gregg have "become the instruments of arbitrariness and discrimination, not their cure." ...
Radelet (1981) examined whether race remains a significant factor in the processing and outcome of post-Furman homicide cases in 20 Florida counties in 1976 and 1977. He discovered that blacks accused of murdering whites were more likely to be sentenced to death than blacks accused of murdering blacks. This trend is explained by Radelet as due primarily to higher probabilities that blacks accused of murdering whites would be indicted for first-degree murder.... Thus, Radelet's study tends to indicate that racial discrimination is alive and well in Florida's criminal justice system to the extent that a lower value is placed on the lives of blacks than on the lives of whites....
Using data on 1,400 homicide cases in some 32 Florida counties between 1973 and 1977, Radelet and Pierce (1985) examined disparities between police reports and court records on "felony," "possible felony" and "non-felony" homicides. Among racial combinations of defendant-victim, black defendants who killed white victims were considerably more likely to have their cases upgraded to a felony charge and least likely to have their cases downgraded to a lesser charge as they moved through the judicial process....
In South Carolina, Paternoster (1983) found that when the race of the of fender and of he victim are considered together a clear pattern of racial disparity in prosecutors' decisions to seek the death penalty is evidenced.... The race of the victim appears to be a more important consideration of public prosecutors than is the race of the offender, concludes Paternoster. Hence, post-Furman capital punishment statutes fail to remedy the problem of racial discrimination influencing imposition of the death penalty in capital cases....
Gross and Mauro... conducted a very extensive study of sentencing under post Furman death penalty laws in Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma and Virginia.... While the data permitted separate analyses for Georgia, Florida and Illinois, death sentences for the states of Arkansas, Mississippi, North Carolina, Oklahoma and Virginia were analyzed collectively. In Georgia, Florida and Illinois, Gross and Mauro... found that while blacks and other racial minorities comprised a larger percentage of homicide victims than whites, the risk of a death sentence was far lower for suspects charged with killing blacks than for defendants charged with killing whites. For the state of Georgia, defendants who killed whites were almost ten times more likely to be sentenced to death than defendants whose victims were blacks; in Florida, the killers of whites were eight times more likely to be sentenced to death; and in Illinois, killers of whites were about six times more likely to be sentenced to death.
When controlling for the race of the victim, Gross and Mauro found that blacks who killed whites were far more likely to be sentenced to death than whites who killed whites. .
McCleskey v. Kemp (1987)
In 1978, Warren McCleskey, a black man, was convicted in Fulton County, Georgia of murdering a white police officer during an armed robbery of a furniture store. The conviction was in keeping with the Georgia statute, under which a jury cannot sentence a defendant to death for murder without a finding that the crime was aggravated by at least one of ten particular circumstances. McCleskey failed to present any mitigating evidence to the jury and was subsequently sentenced to death.
On appeal to the U.S. Supreme Court, McCleskey claimed that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the eighth amendment protection against "cruel and unusual punishment," and that the discriminatory system violates the fourteenth amendment guarantee to the "equal protection of the law." McCleskey proffered the results of the Baldus et al.... study in support of his claim. In 2,484 murder and non-negligent manslaughter cases in Georgia between 1973 and 1979, defendants who killed whites were sentenced to death in 11% of the cases, while defendants who killed blacks were sentenced to death in only 1% of the cases. Baldus et al. discovered that the death penalty was imposed in 22% of the cases where the defendant was convicted of murdering a white, 8% of the cases with white defendants and white victims, 3% of the cases with white defendants and black victim, and only 1% of the cases involving black defendants and black victims. Baldus et al. controlled for some 230 non-racial variables and found that none could account for the racial disparities in capital sentences among the different racial combinations of defendant-victim. Killers of whites were 4.3 times more likely to be sentenced to death than killers of blacks, end black defendants were 1.1 times more likely to be sentenced to death than other defendants.
McCleskey claimed that race had, therefore, infected the administration of capital punishment in Georgia in two distinct ways. First, "prisoners who murder whites are more likely to be sentenced to death than prisoners who murder blacks," and, secondly, "black murderers are more likely to be sentenced to death than white murderers" (McCleskey, 1987:9). McCleskey held that he was discriminated against by the Georgia system of imposing the death penalty because he is a black man who killed a white.
On April 22,1987, the U.S. Supreme Court handed down its decision.... The question before the court in McCleskey was "whether a complex statistical study that indicates a risk that racial consideration enters into capital sentencing determinations... is unconstitutional under the Eighth and Fourteenth Amendments" (McCleskey, 1987:1).
Writing for the majority, Justice Powell held that the Baldus study does not prove that the administration of the Georgia capital punishment system violates the equal protection clause of the fourteenth amendment or the eighth amendment's protection against cruel and unusual punishment. The court held that "a defendant who alleges an equal protection violation has the burden of proving 'the existence of purposeful discrimination,"' and that the "purposeful discrimination had a discriminatory effect on him." That is, McCleskey must prove that the jury in his particular case acted with a discriminatory purpose; to establish only that a "pattern" of racial discrimination in imposing the death penalty to a select group of defendants is not sufficient to support a claim of constitutional violation of equal protection of the law. The court further held that McCleskey's claim of cruel and unusual punishment also fails because McCleskey "cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." The Georgia sentencing procedures were found by the court to be sufficient to focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," and that it cannot, therefore, be presumed that McCleskey's death sentence was "wantonly and freakishly" imposed.
The essence of the court's holding in McCleskey is that there are acceptable standards of risk of racial discrimination in imposing the death penalty. The court held that the Baldus study simply shows that a discrepancy appears to correlate with race in imposing death sentences, but the "statistics do not prove that race enters into any capital sentencing decisions or that race was a factor in petitioners' cases." The court was also concerned that a finding for the defendant in this case would open other claims that "could be extended to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender."
To Justices Brennan, Marshall, Blackmun, and Stevens, "McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments," and that "(n)othing could convey more power fully the intractable reality of the death penalty: 'that the effort of eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it and the death penalty must be abandoned all together" .... The dissenters argued that whether McCleskey can prove racial discrimination in his particular case is totally irrelevant in evaluating his claim of a constitutional violation because the court has long recognized that to establish that a "pattern" o substantial risk of arbitrary and capricious capital sentencing suffices for a claim of unconstitutionality.
The dissenting justices also called into question the effectiveness of the statutory safeguards designed to curb discretionary use of the death penalty. Justice Brennan specifically argued that "(w)hile we may hope that a model of procedural fairness [as that established in Gregg] will curb the influence of race on sentencing, 'we cannot simply assume that the model works as intended; we must critique its performance in terms of its results" ....
CONCLUSIONS
This review has examined several of the more important studies that have been conducted on the extent to which arbitrariness and discrimination characterize the imposition of capital punishment in the United States. Two substantive conclusions emerged. First despite the attempts by the U.S. Supreme Court in Furman v. Georgia (1972) and Gregg v. Georgia (1976) to thwart racial discrimination in the use of capital punishment, the death penalty continues to be imposed against blacks in a "wanton" and "freakish" manner. Second, the specific finding by many of the studies that blacks who victimize whites consistently have the high est probability of receiving a capital sentence tends to substantiate the claim that capital punishment serves the extralegal function of majority group protection; namely, the death penalty acts to safe guard (through deterrence) that class of individuals (whites) who are least likely to be victimized.
The review has shown that the death penalty continues to be imposed to blacks in a capricious manner. That is, the evidence tends to confirm the hypothesis that arbitrariness is an inherent characteristic of the use of the death penalty. Studies by Riedel (1976) and Arkin (1980) show that the same degree of racial disparity present in pre-Furman cases is also prevalent in post-Furman cases. Several other studies have also shown that the safeguards for guided discretion in the use of the death penalty have failed to correct for the racial disparities. Specific analyses have shown that as long as individual prosecutors continue to have broad-based discretion to select which cases they will try as capital cases, racial discrimination in application of the death penalty will undoubtedly continue. Racial discrimination in the use of the death penalty has also been found to be perpetuated through appeal late review of capital cases. The irony here is that the appellate courts were highly touted in Gregg as the foremost safeguard Against unguided discretion in the application of the death penalty.
Various studies reviewed in this paper have shown that black defendants with white victims have been overwhelmingly convicted and sentenced to death when compared to other defendant victim racial categories.... These findings clearly show that when whites are the victims of heinous crimes perpetrated by blacks, punishment is much more harsh. The review clearly illustrates that racism has become so well entrenched and routinized in the imposition of the death penalty that it has developed into a systematic pattern of differential treatment of blacks that is specifically designed to protect members of the dominant white group. While a preponderance of contemporary authors and jurists writing on theories of crime and punishment readily cite retribution and deterrence as fore most rationales for imposing the death penalty on those who commit heinous crimes, this review of empirical studies shows that the death penalty serves the extralegal function of protecting whites.
As we have seen in reviewing post Gregg studies, the wrongs of racial prejudice, racial inequality, and caprice in the imposition of the death penalty have not been abolished by the procedural safeguards established in Gregg. Capital punishment continues to be imposed in a wanton and freakish and discriminatory manner against black criminal defendants. As Goodman has explained, "the sentencer's choice between life and death increasingly appears inchoate and unknowable, a decision more visceral than cerebral."... Empirically-based evidence that racial discrimination continues to influence the imposition of the death penalty has literally been ignored by the court in McCleskey. The proposed safeguards that surround the application of the death penalty amount to no safe guards at all. The only substantive conclusion that can be drawn from this review is that the court has moved from a position of formally recognizing that imposition of the death penalty is imbued with racial prejudice (Furman), to a position of sanctioning racial prejudice as a cost of imposing the penalty (McCleskey). It appears from the cases handed down from the court that racism is a legitimate penological doctrine. For the advocates of racial and ethnic equality, the death penalty cannot be morally justified on the premise that racial oppression, subjugation, and social subservience are legitimate liabilities of maintaining social order. Social order under these circumstances amounts to social order predicated upon racism.