"The reality of race relations in this country is such that we simply may not presume impartiality" (1)
Racism in this country is like the elephant in the room that everyone sees but no one dares acknowledge. Perhaps the lack of acknowledgment is due to the fact that the face of racism since the Civil Rights Movement has changed to one of style rather than substance. In other words, the days of blatant racism have been replaced with a more subtle, unconscious form that most of us fail to even recognize. (2) Virtually gone are the days when racism can be proven when the requisite intent behind any racist motive has been replaced with the subconscious bias that leads to the same unfortunate result. While racism is harmful and unacceptable in any context, there is potentially no worse result than when its manifestation culminates in a death sentence.
In the United States criminal justice system, black defendants have received disproportionate and discriminatory treatment when compared to similarly situated white defendants. (3) This treatment is especially true in death penalty cases. (4) While the disparity in treatment stems from many factors, the most pervasive comes from the juries that make the sentencing decisions and the prosecutors who select those jurors. Even though courts have addressed these problems and recognized they exist, the current state of the law does little to rectify the problem. The United States Constitution guarantees a criminal defendant the right to a fair and impartial jury, but this guarantee only goes so far as to require diversity in the pool from which the jury will be selected. (5) The Constitution does not guarantee a defendant the same diversity on the jury itself. (6) Without the requirement for such diversity, the opportunity exists for subconscious racism to be exercised to the defendant's detriment. Due to this new form of racial bias, it becomes almost impossible for a disproportionate jury to be impartial in capital cases, particularly when the defendant has little or no representation of his race on the jury charged with deciding his fate. Furthermore, this new face of racism eliminates the ability of the defendant to successfully allege racial discrimination because unconscious prejudice is not likely to be proven, and because the use of peremptory challenges in jury selection can be cleverly masked to hide the true reason why an eligible juror of the defendant's race has been stricken. As a result, the dangerousness of allowing this unconscious form of prejudice in capital sentencing directly threatens a defendant's constitutional right to a fair and impartial jury.
The absence of a constitutional guarantee for proportional representation of a particular race in capital juries increases the likelihood of unfair and biased results against defendants of the underrepresented race. Because of this increased bias, a judicial and/or political remedy is necessary to alleviate the inherent impartiality of juries with the power to impose the death penalty and to preserve the defendant's Sixth Amendment right to a fair trial. The potential remedies to be discussed include recognizing a Sixth Amendment right to a proportioned jury, not just a proportioned jury pool, and/or adopting the disparate impact standard used to evaluate racial discrimination in civil rights cases which removes the impossible task of proving purposeful discrimination.
THE NEW FACE OF RACISM AND THE ARBITRARINESS FACTOR
There is no shortage of examples where racism has been blatantly displayed in courtrooms throughout this country. In a Georgia capital case, a court appointed attorney made this single reference to his client during the trial, "[y]ou have got a little ole nigger man over there ... [h]e is poor and he is broke ... [h]e is ignorant." (7) That defendant was sentenced to death. (8) A white judge in Florida made this comment in open court at the onset of the penalty phase of a black defendant's trial, "[s]ince the nigger morn and dad are here anyway, why don't we go ahead and do the penalty phase instead of having to subpoena them back at cost to the state." (9) The defendant's claim of racial bias was rejected, and he was also sentenced to death. (10) A prosecutor in Alabama struck several potential jurors because of their affiliation with Alabama State University, which is a predominantly black institution. (11) The reviewing court considered the prosecutor's reasons for striking the jurors to be race-neutral. (12) In Columbus, Georgia, a woman named Gayle Lee Daniels was the only African-American juror on a jury deciding whether or not to impose the death penalty on a black defendant. (13) One of the white jurors described the defendant as "just one more sorry nigger that no one would miss." (14) In that same case, the jury foreperson inaccurately represented to the court that all the jurors had unanimously voted for the death penalty. (15) Ms. Daniels voted against it, but, as the lone African-American juror, she was too afraid to contradict the statement in open court. (16) The defendant, William Hance, was executed. (17) Unbeknownst to Ms. Daniels at the time, her dissenting vote would have resulted in a life sentence. (18) Also in Georgia, the trial judge referred to the defendant, a grown man, as a "colored boy." (19) After the trial, two of the jurors admitted that they used the word "nigger" during the deliberations, and two jurors admitted to finding blacks to be scarier than whites. (20) The defendant's federal habeas corpus petition was rejected and his death sentence was found to be constitutional. (21)
Evidence suggests that Americans still see racism as a lingering problem. However, there is a disparity between whites and blacks as to the seriousness of the problem. In a recent CNN poll, 49% of blacks said that racism is a very serious problem while only 18% of whites share that view. (22) On one hand, the disparity in percentages suggests that perhaps only blacks perceive racism to still exist when in fact it may not. On the other hand, it may also suggest that whites, who have not borne the brunt of racial discrimination on the same level that blacks or other minorities have, may not be able to perceive that which they have not experienced. In that same poll, 43% of whites said they knew someone who was racist as opposed to 48% of blacks. (23) Further, 13% of whites and 12% of blacks considered themselves racist. (24)
While the poll results seem to indicate that perhaps racism is not as serious a problem as it once was, it is worth noting that these percentages mean little or nothing in light of the view that racism in America has taken on a new form. In the same article that revealed these poll results, a University of Connecticut professor, who has researched racism for over thirty years, explained that racism is very different from the days of Jim Crow. (25) He estimates that up to 80% of whites have unacknowledged racial prejudices that they do not recognize. (26) He stated that "[c]ontemporary racism is not conscious, and it is not accompanied by dislike, so it gets expressed in indirect, subtle ways." (27) Thus, if the estimation that 80% of whites harbor subconscious or unacknowledged racial prejudices is true, then the majority of whites that serve on capital juries have an inherent racial bias of which they are unaware, and this bias influences their decisions in the sentencing phase of a capital trial.
One of the biggest criticisms of the death penalty is that it is often applied in an arbitrary manner. In Furman v. Georgia, Justice Douglas wrote in a concurring opinion:
[t]he high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that the general laws are not applied sparsely, selectively, and spottily to unpopular groups. (28) In other words, if the death penalty is administered arbitrarily or discriminatorily, it runs afoul of the Constitution. "A system in which the sentence of death depends more on the color of the victim or the county that the crime is committed in than on the severity of the offense is also arbitrary." (29) Thus, if anything other than the merits of a case plays a role in rendering a death sentence, the system has allowed the imposition of the death penalty on an arbitrary, perhaps even racial basis. Most often an arbitrary application of the death penalty stems from a lack of uniform guidelines and constraints in the sentencing process, which results in decision-makers relying on their prejudices when rendering their decision. (30) However, because of the new face of racism, it is possible for the death penalty to be arbitrarily applied and the affected defendant to rarely, if ever, prove that it actually occurred. Because race plays a part in the cases chosen for prosecution and also in the makeup of the juries who determine guilt, innocence, and punishment, some form of protection must be given to the defendant who is at their mercy in capital trials.
RACIAL COMPOSITION OF JURIES AND THE FAIR CROSS SECTION REQUIREMENT
The United States Constitution does provide limited protection for the criminal defendant with respect to jury composition. A defendant may assert two types of challenges to the racial composition of the jury pool, either through the Sixth Amendment or through the Equal Protection Clause of the Fourteenth Amendment. (31) The Sixth Amendment to the Constitution guarantees that "the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed" (32) and entitles a criminal defendant to a jury venire designed to represent a fair cross section of the community. (33) Similarly, the Equal Protection Clause of the Fourteenth Amendment guarantees that "[n]o State shall...