The abyss of racism.

AuthorSullivan, J. Thomas
PositionBias in the administration of the death penalty

It is important to recall what motivated Members of this Court at the genesis of our modern capital punishment case law. Furman v. Georgia was decided in an atmosphere suffused with concern about race bias in the administration of the death penalty--particularly in Southern States. (1)

  1. THE BARRIER TO EXAMINING SYSTEMIC RACISM IN THE IMPOSITION OF CAPITAL PUNISHMENT

    Fifteen years after Furman v. Georgia, (2) Justice Powell, writing for the majority in McCleskey v. Kemp, (3) expressly rejected the equal protection argument that had persuaded Justice Douglas to vote against the death penalty in Furman. (4) Despite empirical evidence demonstrating that death sentences were more frequently imposed on African-Americans than on white defendants, particularly when they were convicted of murdering white victims, Justice Powell concluded for the majority that the empirical data demonstrated only a "risk" that black defendants were subject to racial discrimination in the imposition of the death penalty. (5) Under McCleskey, showing a statistical disparity in imposition of the death penalty by race is not sufficient to establish a claim of racial discrimination. Instead, the McCleskey Court held that "to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose." (6)

    The significance of Justice Powell's opinion in McCleskey cannot be overstated. (7) The McCleskey majority concluded that the apparent disparities shown in McCleskey's statistical evidence reflected neither an arbitrary nor a racially discriminatory application of the penalty, the death sentences imposed being based upon evidence developed in support of aggravating circumstances in each case. (8) Consequently, attacks on capital sentences as improperly influenced by racial bias have consistently failed when based on statistical evidence demonstrating greater use of the death penalty either against black defendants or in cross-racial cases involving white victims. (9) Thus, McCleskey has effectively discouraged or undermined attempts to use statistical evidence to demonstrate systemic, constitutional flaws in the system of capital prosecution and sentencing. (10)

    After leaving the Court, Justice Powell reportedly reversed his thinking on the death penalty and stated that he regretted his vote in McCleskey. (11) Yet the decision remains an almost insurmountable hurdle for litigants challenging capital sentencing on disparate-imposition grounds even though the statistical evidence can be taken to suggest that death sentences are discriminatorily imposed whether the focus is the race of the defendant (most often black) or the race of the victim (most often white).

    Whether the statistical evidence actually supports a conclusion that the death penalty is applied discriminatorily remains subject to debate. (12) What is evident, however, is that the demographic breakdown in the use of the death penalty is sufficient to warrant inquiry. What is also evident is that the Court's decision in McCleskey precludes capital defendants' raising the death penalty's relative use as a basis for federal constitutional challenges. And this has been the case for a long time: Justice Blackmun, discussing McCleskey after seven years of seeing the case invoked to prevent capital defendants from presenting evidence of systemic bias, (13) observed that

    [d]espite ... staggering evidence of racial prejudice infecting Georgia's capital sentencing scheme, the majority turned its back on McCleskey's claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism. (14) In fact, evidence of "the virus of racism" in the system existed long before McCleskey was decided. In Swain v. Alabama, (15) for example, the Court rejected a challenge based on evidence that no black had been seated as a juror in the county in which Swain was convicted during the preceding twenty-five years. (16)

    The Swain majority, confronted by evidence of this apparent disparity in treatment of blacks in the jury-selection process, (17) still declined to conclude that such evidence of longstanding exclusion was sufficient to prove an equal protection violation. Because peremptory challenges were not exclusively under the control of prosecutors, but were also a tactical tool used by counsel for the accused, defense counsel's exclusion of some minority jurors essentially clouded the evidence and prevented the Court from concluding that exclusion of blacks from petit jury service could be exclusively attributed to state actors. (18) Swain held, then, that demonstrating discrimination in the exclusion of blacks from petit jury service required proof of not only a pattern of prosecutorial peremptory challenges excluding minorities, but also proof that prosecutors accused of using peremptories to discriminate on the basis of race were actually engaged in a pattern and practice of using peremptories for the purpose of racial exclusion. (19)

    Over time, the Swain remedy for prosecutorial racism proved unworkable, which finally led to the Court's recognition of an arguably more usable remedy in Batson v. Kentucky. (20) Batson permits the party opposing the use of a peremptory challenge to object and establish a prima facie claim by showing that the strike was used to remove a prospective juror who is a member of a cognizable racial or ethnic group. The proponent of the strike must respond by offering a race-neutral explanation for the strike. The trial court then determines whether to accept it. (21)

    Had the McCleskey Court recognized the compelling statistical evidence of disparity in the charging decisions of prosecutors with respect to the death penalty--decisions reflecting discretion exercised by prosecutors alone and so not subject to an analysis that includes defense counsel's use of the same strategies (22)--would have necessarily resulted in a capital defendant's submission of similar statistical evidence being deemed sufficient to make out a prima facie case of racially discriminatory use of capital sentencing. Instead, the McCleskey Court offered no solution to the problem posed in that case--a problem that logically leads to the conclusion that state actors routinely exercise their discretion in capital sentencing to discriminate on the basis of the race or ethnicity of the accused or the victim.

    As it did in Batson by addressing the inherent problem of demonstrating prejudice in Swain, the Court, if genuinely interested in addressing discriminatory application of the death penalty based on racial or ethnic factors, would have long ago realized the error of McCleskey. It would have moved to fashion a new remedy allowing statistical evidence to be used in establishing prima facie claims of discrimination in the charging process and imposition of the death penalty. Yet the Court has not been forthcoming, even though the use of comparative statistical analysis would afford a workable way of addressing the problems suggested--one might even say demonstrated--by the obvious racial disparity in actual use of the penalty.

    The Court's inaction means that the McCleskey barrier continues to frustrate generalized challenges to racially discriminatory use of the death penalty, demanding instead that proof of discrimination be directly related to the prosecution of the individual defendant. However, proving discrimination in the individual case is virtually impossible unless the prosecutor is prepared to admit bias in seeking the death sentence, so McCleskey remains virtually an absolute bar to claims of racial discrimination in the administration of the death penalty.

    A. Considering the McCleskey Effect: Williams

    The problem posed by McCleskey, a problem that would be dramatically impacted by the Eighth Amendment analysis advanced by Justice Douglas in Furman, is demonstrated by the Arkansas capital prosecution of Frank Williams. The state supreme court ordered a new sentencing proceeding for Williams (23) because the jury failed to find that mitigating circumstances evidence had been presented at trial despite the defense presentation of expert evidence about Williams's troubled childhood and low IQ, and the fact that he had likely been under the influence of alcohol and marijuana at the time of the offense. (24) This grant of relief followed lengthy post-conviction litigation (25) and a well-argued and thoroughly documented clemency petition that gained a favorable recommendation from the state parole board, (26) and occurred only when the Arkansas Supreme Court recognized its own error in failing to find error in its review of the death sentence. (27)

    Evidence developed by Williams's federal defenders shows why reliance on statistical evidence focusing on capital prosecutions in a single judicial district should be sufficient to support a claim of disparity in use of the death penalty. (28) Williams relied on localized evidence that the death sentence has been imposed in a racially discriminatory fashion in the Arkansas judicial district in which he was sentenced (29) because the five death sentences imposed in the Eighth and Eighth South Judicial Districts from 1990 through 2005 were all imposed in cases involving black defendants and white victims. (30) The research also showed that during this period blacks were charged in more than twice the number of cases eligible for treatment as capital cases as were white defendants. (31) Further, in nine of ten cases in which black defendants were charged with murdering white victims, capital murder charges were filed, while capital charges were filed only forty percent of the time in other cases eligible for capital treatment.

    No white capital defendant was subjected to a capital sentencing hearing over the eighteen-year period covered by the fifteen-year...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT