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Examinations of existing information on rape cases prior to Furman have shown that black men convicted of raping a white woman were almost always executed (or lynched), while white men were rarely even prosecuted for raping a black female (Paternoster, 1991). Historical statistics indicate there were a total of 455 executions for rape from 1930 to 1972. Of these, 405 defendants were black, 48 were white, and two were from other racial groups. Put simply, about 90% of those executed for rape during the premodern period of capital punishment (1930–1972) were black (Bessler, 1997; William- son, 1984), a number that is especially startling when considering that blacks made up only about 12% of the American population during that time (Mello, 1995) and that black males constituted around 6%. Furthermore, data from rape convictions during 1945 to 1965 reveal that blacks convicted of rape were almost seven times more likely than whites to receive a death sentence (Wolfgang & Riedel, 1973, 1975). It is also notable that there were no white men executed for the crime of rape from 1930 to 1950; only African American men were executed for rape during those two decades (Hartung, 1952).

It has been argued that racial breakdowns of these defendants alone are not very informative to the extent that people of a certain race are more prone to commit capital rape. The combined defendant- victim racial effect, however, is more informative. For instance, a Florida study showed that 5% of white males convicted of raping white females were sentenced to death from 1940 to 1964, while 54% of cases in which a black male raped a white female resulted in a capital sentence. Notably, not one of the eight white males convicted of raping a black female was sentenced to die for his crime (Bedau, 1982). Consistently, empirical research has shown that the race of both the offender and the victim is the only statistically signifi cant variable that explains disproportionate death sentences for the crime of rape in this country (Archibald, 2015; Marquart, Ekland-Oison, & Sorensen, 1994).

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Nationwide data for pre- Furman executions also show disproportionate percentages of black defendants were executed for murder and other crimes as well (Bohm, 1991; Schneider & Smykla, 1991). Of 11,528 recorded executions for murder, 5,103 (44.27%) were African Americans and 5,203 (45.13%) were white. For crimes other than rape and murder, such as burglary and theft, 54.82% of those executed were black and 32.86% were white. And of the 506 pre- Furman executions for unspecifi ed felonies or unknown crimes, 294 (77.87%) were African Americans, while only 43 (8.50%) were white defendants (Blanco, 2016). Moreover, comparisons of those executed during this time period indicate that the average age of black men put to death was signifi cantly lower than the mean age of white men (Bowers, 1984). In general, it appears as though the public was much quicker to execute African Americans than whites during the pre- Furman era. Although early data regarding race of victims are limited for crimes other than rape, it seems that this pattern was especially true for those who committed crimes with white victims.

These types of disparities and other inconsistencies based on factors such as race became an impe- tus for the signifi cant challenges to the constitutionality of the death penalty that occurred in the 1960s and 1970s. Some of these challenges were unsuccessful, while others resulted in procedural changes intended to safeguard against racial discrimination and other injustices in the capital punish- ment process. But have these safeguards resulted in meaningful changes in the application of the death penalty? Have modern procedures created a more equal process?

 

 

Kristie R. Blevins and Kevin I. Minor

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Challenging Disparities Within the Changing Social Context

The American capital punishment process has been challenged on many grounds, though few cases make it to the U.S. Supreme Court. Prior to the 1970s, the court considered challenges based on issues such as the constitutionally of particular methods of execution ( In re Kemmler , 1890; Malloy v. South Carolina , 1915; Wilkerson v. Utah , 1879), public versus private executions ( Rooney v. North Dakota , 1905), legal representation of indigent defendants ( Powell v. Alabama , 1932), failed execution attempts ( Francis v. Resweber , 1947), and exclusion of potential jurors ( Witherspoon v. Illinois , 1968). The overt issues of dis- parities and possible discrimination based on race or other individual characteristics of the defendant and/or the victim were not directly addressed by the court during this era. But inconsistencies in capital sentencing began to draw the attention of legal advocates and reformers.

Perceptible changes in the social context of American culture began to emerge in the wake of World War II. Activists called attention to the fact that African American soldiers had been engaged in a war to secure freedom for the oppressed while they were facing numerous types and sources of oppression themselves. In 1948, President Truman issued Executive Order 9981 to end racial segrega- tion in the armed forces and mandate equal opportunities and treatment of military personnel regard- less of race, religion, or national origin. Four years later, members of the Supreme Court agreed to hear fi ve school desegregation cases simultaneously, as Brown v. Board of Education (1954), and eventually ruled that racially segregated schools were unequal and inferior for African American children and were therefore in violation of the Equal Protection Clause of the Fourteenth Amendment. These events accentuated the degree of existing racial prejudice and created conditions that fostered collective efforts to garner equal rights—all of the privileges and immunities guaranteed in the constitution— for all citizens. These cooperative endeavors, as part of the civil rights movement, gained momentum throughout the 1950s, peaked in the late 1960s, and advanced equality for many matters. For example, President Johnson signed the Civil Rights Act of 1964. This decree was intended to provide equal access to public places, employment, and schools, and it prohibited discrimination based on race, reli- gion, sex, or national origin. The law made racial segregation unlawful and was later expanded with explicit statements to provide equality for housing and voting policies as well. The unrest and acts of violence brought about by civil rights antagonists should not be overlooked, but, ultimately, egalitari- anism triumphed, at least as written in law and policy. But would this new equality actually come to fruition in the real world? Would everyone have similar opportunities to achieve the American dream? And, when society was wronged, would punishments for those wrongs be consistent based on charac- teristics of the crimes rather than attributes of the individuals responsible? Would the ultimate punish- ment be meted out in a more consistent manner? Answers to these questions would certainly require time and a review of evidence, but it was the ideal time for reformers to call attention to, challenge, and provide suggestions to improve systemic fl aws—including shortcomings of the capital punishment system—that perpetuated disparities and discrimination based on race.

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