Print PDF

† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Criminal Injustice is published every Wednesday at 6 pm CST.

Death, in Black and White
by nancy a heitzeg

Editors Note: This piece was originally published a year ago, in conjunction with the 35th Anniversary of  the full reinstatement of the Death Penalty in the United States. While the use of the death penalty has declined over the past year, its’ racial dynamic remains constant. Certainly the most high-profile execution of 2011 was that of Troy Davis, whose case was a textbook example of the role racism plays in all phases of the death penalty. Yes , still in Georgia — the state that that brought us the death penalty and race cases – Furman, Coker, Gregg and McCleskey. But yes, everywhere it is practiced in a nation wedded, still, to both vengeance and white supremacy.

As we are in the midst Election 2012, it is important to note that neither platform of the major political parties calls for the abolition of the death penalty. The DNC offers a few words of caution, and perhaps some room for movement, But the GOP, as expected, is in full embrace of the harshest measures of “justice”:

Liberals do not understand this simple axiom: criminals behind bars cannot harm the general public. To that end, we support mandatory prison sentencing for gang crimes, violent or sexual offenses against children, repeat drug dealers, rape, robbery and murder. We support a national registry for convicted child murderers. We oppose parole for dangerous or repeat felons. Courts should have the option of imposing the death penalty in capital murder cases.

It is safe to say that the imagined “criminal” is not the vulture capitalist who most puts the public at risk. It is safe to say that the “criminal” of the GOP imagination is the archetype – young, poor, black/brown. The surrogate throughout the Romney/Ryan Campaign has, of course, been President Obama. So, no surprise, then, that the low-light of the GOP Convention involved “Dirty Harry” himself, that dispenser of extra-judicial justice, rendering the First Black President as “The Invisible Man” and then metaphorically executing him – at the crowd’s behest – in “The Chair”.

Made their Day.

There is was. However disjointed — the same old conservative racist story of race and crime. Of death and vengeance.

In Black and White.

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” -Justice Potter Stewart in Furman v Georgia (1972)

July 2, 2011 marked the 35th Anniversary of the death penalty’s reinstatement in Gregg v. Georgia following a nearly ten year moratorium on execution in the United States. In conjunction with that landmark date, the Death Penalty Information Center released a report – Struck by Lightening – which reveals the death penalty as still untenable and as “arbitrary and caprious” as ever.

After three and a half decades of experience under these revised statutes, the randomness of the system continues. Many of the countryʼs constitutional experts and prominent legal organizations have concluded that effective reform is impossible and the practice should be ended. In polls, jury verdicts and state legislative action, there is evidence of the American peopleʼs growing frustration with the death penalty. A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was approved eventually concluded the experiment had failed.

Four states have abolished the death penalty in the past four years, and nationwide executions and death sentences have been cut in half since 2000. A review of state death penalty practices exposes a system in which an unpredictable few cases result in executions from among thousands of eligible cases. Race, geography and the size of a countyʼs budget play a major role in who receives the ultimate punishment. Many cases thought to embody the worst crimes and defendants are overturned on appeal and then assessed very differently the second time around at retrial. Even these reversals depend significantly on the quality of the lawyers assigned and on who appointed the appellate judges reviewing the cases. In such a haphazard process, the rationales of deterrence and retribution make little sense.

There are many reasons to call for the abolition of the death penalty — ethics, high costs, a disturbing pattern of conviction/exoneration/execution of those who are actually innocent, cruel execution methods, and staggering evidence of class bias that correlates with attorney incompetence for indigent defendants.

Perhaps the most historically grounded, statistically documented and compelling reason for abolition however involves the deep connection –past and present — of the death penalty to race.

The odds of being struck by that proverbial lightening are magnified exponentially when race of victim and race of offender are taken into account..

Indeed race remains the most consistent predictor of who lives and who dies at the hand of the law….

Same as it ever was.

“From daybreak to dusk black voices resound in exchanges of daily dramas that mark in exchanges of daily dramas that mark time in the dead zone.. Echoes of Dred Scott ring in McCleskey’s opinion, again noting the paucity of black rights in the land of the free..Chief Justice Taney sits again, reincarnate in the Rehnquist Court of the Modern Age… One hundred and thirty three years after Scott, and still unequal in life, as in death.” – Mumia Abu-Jamal Live from Death Row (1995)

The persistence of race as a controlling variable in death penalty cases is no surprise. Race has never been absent from the application of capital punishment in the United Sates. In fact, through slavery and lynching into the present, capital punishment has been used as method of racial control. The dis-proportionality, the accompanying torture, mutilation and public spectacle, the thin and often non-existent line between the extra-legal and the state-sanctioned are well-documented. Lynch mobs are easily transformed into Killing States.

An American Horror.

It is also unsurprising then that the Supreme Court cases that nearly brought the death penalty show to a stop centered on the issue of racial disparity. The initial Georgia cases Furman (1972) and Coker (1977), with their 8th and 14th Amendment challenges, shone a light on the significance of race in decisions to charge, convict and execute blacks at a disproportionate rates, even for non-lethal crimes such as rape and armed robbery. And despite the two-tiered remedy approved in Gregg (1976), racial disparity in the death penalty remains — not merely as a specific result of discrimination in a case by case basis, but as a residue of institutionalized discrimination that persists in long-standing patterns of opportunity and interaction.

The profundity of these patterns of institutionalized racism in application of the death penalty were first made plain in McCleskey v Kemp, another Georgia case heard in 1987. It is here that the Supreme Court in a 5-4 decision clearly defines discrimination as individual not institutionalized. With implications that extend far beyond the death penalty, the Supreme Court held that violations of the Equal Protection Clause of the 14th Amendment require specific and demonstrable intent to discriminate; documentation of aggregate discriminatory impact constitutes insufficient grounds for such a claim. Mr. McCleskey, a black, 44-year old factory worker was convicted of killing a white police officer during an attempted robbery in 1978. Mr. McCleskey admitted to being one of four men involved in a robbery in which Officer Frank Schlatt was killed, but he denied being the one who shot him. None of the other men received the death sentence. The case against Mr. McCleskey was largely circumstantial. Testimony came from one of the other robbers, who named Mr. McCleskey as the gunman, and from another prisoner, Officier Evans – a police informant, a snitch, who believed his sentence would be shortened if he produced information – told jurors Mr. McCleskey had confessed to him in jail.

Citing statistical evidence from the now famous Baldus study, McCleskey’s attorneys argued that the application of the death penalty in Georgia was fraught with racism. Defendants charged with killing white victims were more likely to receive the death penalty, and, in fact, cases involving black defendants and white victims were more likely to result in a sentence of death than cases involving any other racial combination. The majority did not dispute the statistical evidence, but feared the consequences. If the Court had accepted McCleskey’s claim, then the Equal Protection Clause of the 14th Amendment would have applied to patterns of discrimination, to institutionalized racism and sexism, to questions of structured inequality. These fears are expressed in Powell’s opinion for the majority:

“ McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system…. Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender.”

Yes the criminal justice system — start to finish , from the creation of law itself to racial profiling to imprisonment and capital punishment – was and is “impermissibly tainted” by racial bias. Indeed it is rooted in such. To this day, blacks are over-represented on death row — accounting for nearly half of all awaiting execution despite being 13% of the U.S. population. The results of the Baldus study have been replicated in multiple jurisdictions with the same result — race of victim and race of defendant bias continue to operate , individually and in conjunction. White victims are far more likely to bring capital charges than their proportion of murder victims would randomly indicate – they account for 75% of all capital cases despite representing only 50% of murder victims – while black defendants are more likely than an other race to face the death penalty. And of course, cases involving black defendants charged with killing white victims is the best predictor of that lightening strike.

Warren McCleskey was executed by electrocution in 1991, one of 438 Black Men killed by the State in the post-Furman era. But his case continues to haunt; the questions raised there have far outlived him. Justice Lewis Powell, when asked by his biographer if he wanted to change his vote in any case, replied, “Yes, McCleskey v. Kemp.” Justice John Paul Stevens, one of the original dissenters, recently wrote, “That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.” In a survey by the Los Angeles Times among liberal legal scholars, McCleskey was named one of the worst Supreme Court decisions since World War II. The decision has been termed “The Dred Scott of our era”. But no indictment — then or now — rings truer than that of Justice Brennan, one of the 4 dissenters in the case. His words are eerily prescient and remain, to date, unanswered. (The bold is mine):

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black. while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died…

At the time our Constitution was framed 200 years ago this year, blacks had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect.Dred Scott v. Sandford, [p344] 19 How. 393, 407 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plessy v. Ferguson, 163 U.S. 537, 552 (1896). In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court’s first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that, in three decades, we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present. It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. “The destinies of the two races in this country are indissolubly linked together,” id. at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living. The Court’s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.

And we so we remain imprisoned by the past, as Brennan warned, clinging to a draconian punishment that much of the world has long left behind. Clinging to old racial fears cast in contemporary imagery, practicing plain old white supremacy, now called by another name.

“Keep moving forward, my brothers. Slavery couldn’t stop us. The lynching couldn’t stop us in the south. This lynching will not stop us tonight. We will go forward. Our destiny in this country is freedom and liberation…. “ – Last Statement of Shaka Sankofa aka Gary Lee Graham,#696, 6/22/00

Brennan was prophetic on another count as well — the echoing dissent from Death Row cannot be silenced. Sometimes dissent comes from a cause célèbre, from a Mumia Abu Jamal, a Troy Davis, from a Stanley “Tookie” Williams. But sometimes the dissent emerges, in unexpected ways, from the everyday inmate, now more a number than a name.

For reasons that remain a mystery to me, Texas, the most prolific of the Killing States, includes complete information on the 470 it has murdered on its Department of Criminal Justice page. They are Black and Latino, some White – often surprisingly young, too often from Harris County, once the Death Penalty Capital of the World. Included along with offense details, age, race, county of conviction are the inmates Last Statement.

Please look, for it is here that we get a glimpse into the secret shrouded moments that were once on full public display. There is much that we would expect here in the Last Statements of men about to die at the hands of the State. Some say nothing, leaving us to wonder about all the whys. Others say Sorry — to victims’ family, to their own. Thank you to loved ones, to friends on Death Row, to attorneys who have managed appeals, to supporters. There is reference to the next life, to jesus/allah/somebody — hope for a better world than the one to be left behind. But there is more too in these Last Words; there is the dissent, a well articulated cumulative critique from men, mostly poor and under-educated, but men with the clear knowledge that comes from living it. There is anger and proclamations of innocence. There are indictments of incompetent attorneys and procedural barriers in the system. There are concerns expressed over the methods of execution — “They are fixing to pump my veins with a lethal drug the American Veterinary Association won’t even allow to be used on dogs. I say I am worse off than a dog. “ There are charges of racism, and the cold understanding that they are about to die, in great measure, because they are poor, because they are black and brown. There is final defiance and the rightful naming of what is about to unfold — “Warden, Murder Me!” There are complex stories of redemption and calls for an end to the machinery of death. There is the understanding that the death penalty makes killers of us all.

Napoleon Beazley #999141, May 28, 2002: “The act I committed to put me here was not just heinous, it was senseless. But the person that committed that act is no longer here – I am. I’m not going to struggle physically against any restraints. I’m not going to shout, use profanity or make idle threats. Understand though that I’m not only upset, but I’m saddened by what is happening here tonight. I’m not only saddened, but disappointed that a system that is supposed to protect and uphold what is just and right can be so much like me when I made the same shameful mistake. If someone tried to dispose of everyone here for participating in this killing, I’d scream a resounding, “No.” I’d tell them to give them all the gift that they would not give me…and that’s to give them all a second chance. I’m sorry that I am here. I’m sorry that you’re all here. I’m sorry that John Luttig died. And I’m sorry that it was something in me that caused all of this to happen to begin with. Tonight we tell the world that there are no second chances in the eyes of justice…Tonight, we tell our children that in some instances, in some cases, killing is right. This conflict hurts us all, there are no SIDES. The people who support this proceeding think this is justice. The people that think that I should live think that is justice. As difficult as it may seem, this is a clash of ideals, with both parties committed to what they feel is right. But who’s wrong if in the end we’re all victims? In my heart, I have to believe that there is a peaceful compromise to our ideals. I don’t mind if there are none for me, as long as there are for those who are yet to come. There are a lot of men like me on death row – good men – who fell to the same misguided emotions, but may not have recovered as I have. Give those men a chance to do what’s right. Give them a chance to undo their wrongs. A lot of them want to fix the mess they started, but don’t know how. The problem is not in that people aren’t willing to help them find out, but in the system telling them it won’t matter anyway. No one wins tonight. No one gets closure. No one walks away victorious.”

Let us stand finally with the dissenters.

There is but one word left to say –

Abolition.

(137)