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RACE AND THE DEATH PENALTY

Kristie R. Blevins and Kevin I. Minor

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“ Time for a tree and a rope. ” ( Facebook text posted in 2016 by a sitting judge in Burnet County,

Texas underneath a mug shot of Otis Tyrone McKane, a black man arrested for killing a white San Antonio police offi cer; the judge was provided racial sensitivity training. )

Various types and levels of racial oppression have been pervasive in the United States since African slaves were introduced in the colony of Jamestown, Virginia, in 1619 (Sluiter, 1997). America’s cul- ture and social climate have undergone drastic changes throughout different eras in history. Until about a century and half ago, the majority of black individuals in the U.S. were considered to be property. After slavery was abolished, African Americans were seen as an inferior class and treated accordingly, as exemplifi ed by practices like segregation and convict leasing in the South. It was only a bit over 50 years ago, with the 1964 Civil Rights Act, that all American citizens were legally guaran- teed equal rights and privileges as provided by the Constitution. Nonetheless, there remains evidence of structural inequalities based on race in contemporary social institutions such as education, employ- ment, housing, and the criminal justice system (Gaddis, 2015).

Discrimination based on race should be identifi ed and remedied in all social establishments, but it is especially important to do so in the one system that can literally determine whether someone lives or dies—the death penalty process. The capital punishment system in America has been challenged on many grounds but is still an option for eligible murder cases in 31 states, the federal government, and the U.S. military. One of the most commonly cited and persistent problems with the death pen- alty in the U.S. is inequality of sentencing based on race of the defendant and/or the victim, and a multitude of empirical studies have presented solid evidence that racial disparities are present in the modern system, just as they were when the system was established.

This chapter provides an overview of what is known about race and the death penalty in the U.S., beginning with the early years through the Furman case in 1972. Next is a discussion of important death penalty challenges and the resulting changes that created the current capital punishment process, followed by a review of the Supreme Court case that challenged the death penalty based directly on race. A summary of research concerning racial disparities in the con- temporary system is presented next, and some possible explanations about how and why racial disparities enter the system are offered afterward. The chapter ends with an overview of possible paths for recourse for cases in which there are racial biases and conclusions based on the informa- tion presented.

 

 

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The Pre- Furman Death Penalty: Race and Capital Punishment in America Through 1972

Many early American political leaders and their constituents recognized the country should have a justice system of its own, a system that provided certain rights to citizens and was not based entirely on the British code. By the time the U.S. Constitution was ratifi ed by the original 13 colonies in 1787 and the Bill of Rights was added in 1791, it contained some guaranteed freedoms and rights that were not present in the prior English system. When individuals were convicted of committing crimes, reformation was recognized as a primary underlying philosophy for the correctional system, but residents also desired elements of retribution (Tongue, 2015). This retributive philosophy carries the assumption that the punishment should fi t the crime, that everyone convicted of a particular criminal offense should receive the same punishment regardless of individual characteristics or circumstances. Historically, though, retribution has been problematic in its application to sentencing for many types of crimes, even under sentencing guidelines, because individual characteristics such as gender, educa- tion, and race somehow manage to infi ltrate the process and create disparities based on factors not related to the case (Mustard, 2001).

Evidence suggests that one particular individual characteristic, race, has resulted in disparities in the American capital punishment system from its inception until the present day. These disparities were not unexpected in the early years, as there were basically two sets of laws, one for whites and one for blacks. That is, many states, especially Southern states, implemented separate criminal codes for minorities. These codes served as a set of laws specifi cally for black individuals and included some offenses that were not considered crimes if committed by a white person. Further, many of these codes stipulated that a black person could be executed as punishment for any crime. These codes were amended during the fi rst two decades of the 1800s but still allowed for vast inconsistencies based on race. For example, a black man could be executed for crimes such as rebellion, burglary, and assaulting a white female, while a white man would receive much less severe penalties for the same crimes (Allen & Clubb, 2008; Steiker & Steiker, 2015).

Separate criminal codes were abolished by the end of reconstruction in 1877 and, aside from Jim Crow laws authorizing racial segregation, criminal laws and prescribed punishments were supposed to be applied to everyone in a given jurisdiction. In other words, the laws and system theoretically would be equivalent for everyone. However, this egalitarian ideology was belied by widespread vigilante lynchings, most of which involved black victims in the South (Zimring, 2003). Lynchings occurred throughout the early period of capital punishment (i.e., before 1930) and were not exclusive to the South, but they became particularly frequent there between 1880 and 1930, when nearly 2,500 blacks are estimated to have been killed by mostly all white mobs (Paternoster, Brame, & Bacon, 2008). Simi- larly, Garland (2005) estimates that of some 4,000 documented lynchings across the nation between 1882 and 1940, 300–400 were public torture lynchings concentrated in Southern locales, in which victims were publically tortured and humiliated before being put to death. These aggravated murders were an assertion of white supremacy in attempt to preserve racial caste at a time when traditions were threatened by change in the wake of a breakdown of Reconstruction. Moreover, Garland observes that public torture lynchings were frequently condoned and sometimes participated in by local legal offi cials. Indeed, as Banner’s (2006, p. 106) historiography reveals of lynching generally, “the line between a lynching and an offi cial execution could be thin.” Not surprisingly, lynching was especially common for black males thought to have violated sexual norms with white females. And modern era death sentences and executions have been concentrated disproportionately in states where lynching was historically most common (Zimring, 2003).

Many of the details of capital cases prior to 1972 were never recorded or have been lost, but there is some basic information concerning dates, race and age of defendant, and type of crime commit- ted for most individuals legally executed in the U.S. Aggregate racial comparisons of those executed with the racial makeup of the population provide anecdotal evidence of the racial discrimination that

 

 

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existed. It should be noted that there are some limitations with early census records because they were based primarily on incorporated areas with populations of 100,000 or more, but they estimate that African Americans comprised 9.7 to 19.3% of the total population in the U.S. from 1790 to 1970. That means African Americans accounted for, on average, about 13% of those living in the U.S. dur- ing that time period. This average is skewed by the larger percentages of African Americans reported during the years when slavery was legal. African Americans constituted 17.53% of the people in the areas included in the 1790–1860 census, though 88.08% of them were considered to be the property of slave owners. The average percentage of African Americans in those same areas decreased to 11% for the period 1870 to 1970 (Gibson & Jung, 2005). Keep these general percentages in mind while viewing the racial breakdown of executions.

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