The Death Penalty, Racism and the American Practice of Lynching

• • criminal justice, racism

“A man was lynched yesterday” read the banner that flew outside the NAACP headquarters at 69 Fifth Avenue in 1938. Some 73 years later, such a banner is still relevant as the American practice of lynching continues in ways new and old in the 21st century.

(Image source: Library of Congress, NAACP)

On Wednesday, in what the typically reserved New York Times called “a grievous wrong,” the State of Georgia executed Troy Anthony Davis at 11:08 pm.  Albert Camus observed that “capital punishment is the most premeditated of murders,” and that was never more true than this week when Georgia proceeded with the killing of Mr. Davis in spite of serious doubts about his guilt and in spite of national and international media attention about the case, and an outcry from various celebrities and luminaries including President Jimmy Carter and Pope Benedict XVI. Much of the outrage is that there was simply too much doubt (as the Twitter hashtag #toomuchdoubt suggested) about Davis’ guilt. There was no physical evidence linking Davis to the crime for which he was convicted, and 7 of the 9 witnesses recanted their testimony. If Georgia ends up exonerating Davis, it wouldn’t be the first time that state later recanted it’s prosecution of an African American accused of killing a white person, but it may take awhile.  Sixty years after Lena Baker, an African American woman, was convicted – and executed – for killing a white man, the State of Georgia exonerated her.

The other part of the outrage about this case has to do with the systemic racism of the death penalty: Davis was African American and the victim in this case, Mark MacPhail, was white (and an off-duty cop).  Some have even referred to the execution of Davis as a “legal lynching,” an especially ironic phrase given that the case went all the way to the U.S. Supreme Court which refused to stay the execution with no dissents from the bench, not even from Justice Thomas, who once claimed to be a victim of “high-tech lynching” because of Anita Hill’s charges of sexual harassment.  But, perhaps this is just hyperbole. What is lynching?  Is there any evidence that links the American practice of lynching to the death penalty?

Continue reading…

Retired Supreme Court Justice: Capital Punishment ‘Shot Through with Racism’

• • criminal justice, death penalty, new jim crow

The New York Times is reporting that retired Supreme Court Justice Stevens has written an essay that offers a devastating critique of the death penalty as “shot through with racism.”  In a detailed, candid and critical essay to be published soon in The New York Review of Books, Stevens wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”  While other justices (e.g. O’Connor and Souter) have offered some commentary since retiring, their rather abstract discussions of legal issues is, apparently, nothing like the blow-by-blow critique in Justice Stevens’ death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.  But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.  He will also be on “60 Minutes” on Sunday night.

The essay is actually a review of the book Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and in the essay Stevens appears to accept its major conclusions.  Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.  According to the New York Times article, Stevens notes that the problems with the administration of capital punishment extend beyond the courthouse and into the voting booth.  Referring to the “race-based prosecutorial decisions” allowed by the 1987 McCleskey v. Kemp, ruling that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution, Stevens 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.”

This bold move by a retired Supreme Court Justice is good news for those concerned with the injustice of capital punishment.

Race and the Death Penalty, IV: Resources

• • criminal justice, death penalty, links, race, racism

In this last post of our four-part blog series on race and the death penalty, we* would like to provide you with some additional links.  As our series this week illustrated, the death penalty today looks very much the same as in the past. If you would like to learn more about race and the death penalty, please visit:

While the death penalty has undergone what some would call a legitimacy crisis in recent years with issues of innocence and cost becoming prominent, we argue that we should still pay attention to issues of racial bias.

~ *We are a group of four sociology students studying the death penalty in Danielle Dirks’ “Capital Punishment in America” undergraduate course at University of Texas-Austin.  This is the first post of our four-part blog series on race and the death penalty. Please read and feel free to comment or ask questions. Thank you for your time!

Race and the Death Penalty, III: Troy Anthony Davis and the Denial of Justice

• • criminal justice, death penalty, race, racism

In many ways, the story of racial injustice and the death penalty in the U.S. can be summarized in the story of Troy Anthony Davis.

On the night of August 19, 1989, an off-duty police officer, Mark MacPhail, was shot and killed. The events leading to his death are quite unclear.  Eyewitness accounts and testimonies have been altered and recanted. However, the story was reported as follows: Standing outside a Burger King in Savannah, Georgia, a black man, Sylvester “Redd” Coles was seen harassing a homeless man for beer. Coles continued to harass the homeless man and followed the man to a nearby parking lot. Several bystanders, including Troy Anthony Davis, followed the scuffle. Coles was overheard threatening to shoot the homeless man and seen hitting him over the head with a gun. Hearing the homeless man’s cries for help, MacPhail responded to the scene. While responding to the fight, a .38 caliber revolver set off ultimately killing officer MacPhail.

At first, witnesses had a hard time identifying the shooter as the scene was not well lit, and two men present, Coles and Davis, appeared similar in appearance to many.  Soon after the shooting, Coles confronted the police to tell his version of events and implicate Davis. Unaware that he was accused of a crime, Davis went to Atlanta in search of job opportunities. Davis’ trip appeared to police like an attempt to flee the scene of the crime and an admission of his guilt.

troy-davis-faces
(Protesters hold images of Davis, from here)

During the day on August 19, 1989, another shooting occurred at a party where both Coles and Davis were present. At this scene, Coles was overheard arguing with the victim. Shell casings from both scenes revealed that the same firearm had been used in both shootings. Despite the mounting evidence against Coles, his belongings were never searched, and he was never questioned as a suspect in either crime. Davis was deemed guilty and put on trial. There was never an investigation into his part in the crime, and he was never questioned as a suspect.

Here is where things get even messier…

  1. Police never corroborated Coles’ story.
  2. Without performing an investigation, Davis’ picture was broadcast on TV along with proclamations that he was a cop killer.
  3. Coles’ picture was not included in a photo lineup for witnesses.
  4. Seven out of nine witnesses have recanted their testimonies citing coercion, threats, and police pressure. Eyewitness recantations include the following: Dorothy Ferrell told police that she saw nothing, yet testified falsely.  Ferrell later told the public that she felt “compelled to identify Mr. Davis because she was on parole.  [A detective] showed Ms. Ferrell only one photograph and suggested she should [identify Davis]” [link opens PDF]. Darrell Collins was 16 at the time of his eyewitness testimony to the police.  The police threatened him with jail time if he did not identify Davis as the shooter.  Collins, afraid of being sentenced to jail time, then knowingly falsely identified Davis.
  5. One of the individuals who has not recanted his testimony is the primary alternative suspect.
  6. At the time of Davis’ habeas corpus petition, Congress cut funding to post-conviction defender organizations, such as the one representing Davis.  Therefore, Davis lost the majority of his defense and evidence of recantations and other new evidence was never discovered or heard by a jury.

The case of Troy Anthony Davis offers insight into the kind of injustices that a person of color faces in the criminal justice system. To learn more about upcoming proceedings in the Davis case, and to take action on his behalf, please visit:

With the mounting evidence of Davis’ innocence, why does he still sit on death row?  We ask several questions for readers here:

  1. If Davis were a white man, would police have produced a thorough investigation?
  2. If Davis were a white man, would his pleas of innocence be taken more seriously?
  3. If Davis were a white man, would he be provided with fair and adequate treatment by the police/justice system?

~ *We are a group of four sociology students studying the death penalty in Danielle Dirks’ “Capital Punishment in America” undergraduate course at University of Texas-Austin.  This is the first post of our four-part blog series on race and the death penalty. Please read and feel free to comment or ask questions. Thank you for your time!

Race and the Death Penalty, II: Black Defendants, White Victims

• • criminal justice, death penalty, race, racism

This is the second part of a four-part series on the most common death penalty cases: those involving black defendants and white victims. In this post, *we explore some of the research about the racial dynamics in this type of death penalty case.

Most crime is intra-racial, that is it happens among the same racial group. The majority of homicides of whites are perpetrated by other whites, the majority of homicides involving black victims are perpetrated by other blacks.

Yet, despite this statistical fact, the black defendant/white victim has the highest chance of being selected for a death sentence.   One study in the midwest found that prosecutors are 2.5 times more likely to seek the death penalty when a black defendant kills a white victim.

One factor that may be influencing the death penalty decision is the race of the prosecutor.  According to a study conducted by Professor Jeffrey Pokorak of St. Mary’s University School of Law, the racial breakdown of District Attorneys in death penalty states is as follows: 97.5% whites, 1.2% black, and 1.2% Hispanic. There is no absolute way to show that because the majority of District Attorneys in America are white, they are racist against blacks. However, prosecutorial discretion studies illustrate racial patterns in cases where death sentences are sought.

Another factor that researchers have examined is the race of the jury pool.  In cases involving a black defendant and white victim, having five white males on the jury doubles the chance that the death penalty will be imposed [opens PDF].  Having just one black man on a capital jury cuts the chance of a death sentence in half [opens PDF].  In addition to the composition of the jury pool, the prejudice of jurors’ may also play a role in who gets the death penalty.

One study found that defendants who were perceived as looking more “stereotypically black” (i.e., having darker features) more than doubles the chances of being sentenced to death in capital cases involving white victims.

Our question for readers here: Do we – as a society – value the lives of black and white victims differently?

~ *We are a group of four sociology students studying the death penalty in Danielle Dirks’ “Capital Punishment in America” undergraduate course at University of Texas-Austin.  This is the first post of our four-part blog series on race and the death penalty. Please read and feel free to comment or ask questions. Thank you for your time!

Race and the Death Penalty, Part I: Who Gets the Death Penalty in America?

• • criminal justice, death penalty, racism

The history of the death penalty in America is a history about race. While African Americans comprise approximately 11 percent of the U.S. population, they have constituted half (50%) of all the people executed in the U.S. since 1800. In this post, we* begin this series by exploring racial disparities in death sentencing and executions historically and today in the U.S.

Controlling for a variety of legal and extralegal factors, studies continue to show that race of the victim is the single-most statistical factor in deciding who gets sentenced to death and who gets executed.  The most active death penalty states today are those where the most lynchings occurred historically (e.g., Virginia, the Carolinas, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas).   See Jacobs, et al., “Vigilantism, Current Racial Threat, and Death Sentences,” American Sociological Review (2005) 70: 656-677.

There is evidence that a defendant accused of killing a white person is more likely to receive a death sentence than a defendant accused of killing a black person, especially if the defendant is black, for example:

  • Prior to Furman v. Georgia (1972), black defendants were 12 times more likely to receive a death sentence than white defendants. See Baldus, Pulaski and Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661 (1983).
  • Black defendants are nearly four (3.9) times more likely to receive a death sentence than white defendants.  See Richard C. Dieter, The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides, Report, Death Penalty Information Center, June, 1998.
  • Defendants accused of killing a white victim are 4.3 times more likely to receive a death sentence than defendants accused of killing a black victim.  See See Baldus, Pulaski and Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661 (1983).
  • In an examination of death penalty rates among all death-eligible defendants in Philadelphia, Pennsylvania between the years of 1983 and 1993 demonstrated that the odds of receiving the death penalty in Philadelphia increased by 38% when the accused was a black person.  D. Baldus, et al., Race Discrimination and the Death Penalty in the Post Furman Era: An Empirical and Legal Overview, with Preliminary Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998).

There is also evidence that racial disparities exist not only in who gets sentenced to death, but who is executed, for example:

  • Between 1976 and 1990, only 15 white defendants were executed for killing a black victim while 283 black defendants were executed for killing white victims.  See this U.S. Government report [opens PDF].
  • It was not until 1999 that a white person was sentenced to death for killing a black person in Texas in the case of James Byrd.
  • Defendants of color who have killed white victims have significantly higher chances of being executed than other capital defendants.  See Jacobs et al., “Who Survives on Death Row? An Individual and Contextual Analysis,” American Sociological Review (2007) 72: 610-632

The questions we invite readers to ponder are these: Is capital punishment in the United States a racially fair system?  Are you persuaded by the evidence we’ve presented here?

~ *We are a group of four sociology students studying the death penalty in Danielle Dirks’ “Capital Punishment in America” undergraduate course at University of Texas-Austin.  This is the first post of our four-part blog series on race and the death penalty. Please read and feel free to comment or ask questions. Thank you for your time!

Death Penalty: Four Part Series

• • criminal justice, death penalty, law, race, racism

I teach “Capital Punishment in America,” an undergraduate course offered through the Department of Sociology at The University of Texas at Austin. This semester, I have asked the students in the class to engage social media as a way to broaden our class discussion about the death penalty.   I approached Joe and Jessie about hosting part of this discussion here, and they kindly agreed to feature some of the students’ work on Racism Review.

Following this is a four-part blog series on race and the death penalty, each post written by a group of four students interested in the idea of racial disparities and the death penalty.  Part of the goal of this exercise is to generate discussion with people outside the class, so please be sure to comment.

As many Racism Review readers are aware, the death penalty has long been fraught with issues of racial bias and discrimination. While there have been attempts to improve the fairness of the system, the students’ blog posts will illustrate that we still have a long way to go when the state kills.

~ Danielle Dirks, PhD Candidate, Department of Sociology, University of Texas-Austin

Systemic Racism & the “Race to Execution”

• • criminal justice, documentary, law, systemic racism

The New York Times reported recently that a leading group, The American Law Institute, which created the intellectual framework for the current system of capital punishment almost 50 years ago, pronounced the project a failure and walked away from it (h/t to Sister Scholar).  Even though there were other important changes in news about the death penalty last year, including that the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely,  but none of these changes was as significant as the institute’s move, which represents “a tectonic shift in legal theory.”  The WSJ has more analysis of this issue here, suggesting we’re the throes of an upheaval in the administration of the death penalty.

We write here often about systemic racism and what that means.  For compelling evidence about how race is built in to the very fabric of U.S. society, one needn’t look much further than the evidence about the race and the death penalty.    Race is the single greatest factor in who lives and who dies when it comes to death penalty cases. A black defendant who kills a white victim is up to 30 times more likely to be sentenced to death than a white defendant who kills a black victim.

The imposition of the death penalty is even more likely when there is a black defendant and a predominantly white jury.  Most minority defendants, especially in death penalty cases, are judged by predominantly white jurors.   White male jurors can be especially persuasive in death penalty cases.  Researcher Bowers, Steiner and Sandys (2001) analyzed cases in which a black defendant was accused of murdering a white victim found that the racial composition of the jury matters in death penalty cases.  Once the proportion of white male jurors reaches 70%, the death penalty is far more likely.

The U.S. Supreme Court took this kind of data into consideration when it ruled in 1972 in the Furman v. George case and struck down the death penalty as “arbitrary and capricious.”  Then, in 1987, the Supreme Court ruled again on the death penalty.  In the McCleskey v. Kemp case, the court refused to overturn an individual decision to execute a particular man solely based on the bias in the system.   Basically, what the Supreme Court basically decided that it didn’t want to look at the “statistics about race” because it wouldn’t consider the social science evidence in the case.  The evidence, had they considered it,  overwhelmingly showed a pattern of racial bias in who lives and who dies in death penalty cases.

instead, what the Supreme Court was suggesting was that they wanted to look at whether race played a role in each individual case, not at systemic racism.   In some ways, what the Supreme Court was doing with this case was rejecting social science in the law and declaring that racial inequality is ineradicable and inevitable.

This is where the The American Law Institute comes in. They were attempting to “fix” what had been broken with the 1987 McCleskey v. Kemp decision, and see if there was some way to administer the death penalty in way that didn’t just reinforce racial discrimination already in place.  Now, the organization has decided to abandon the project and admitted it was a failure.  Another way of looking at this news is that this is further evidence that the death penalty is deeply, systematically racist and should be abolished.  

There is a powerful documentary that tells this story in a fresh way called “Race to Execution” and it’s directed by Rachel Lyon, narrated by Charles Ogletree. While it’s been out a couple of years now, it recently re-aired on my local PBS station and I was moved by it once again.   It’s a really powerful, and nuanced, telling of human stories of those affected by the death penalty interwoven with the court cases and social science research about race and the death penalty.  (If you’re considering it for the classroom, there is lots of great additional material here.)

If race is the single greatest factor in who lives and who dies, and now the leading legal organization in the nation has admitted defeat in trying to change that, isn’t it time to abolish the death penalty and put an end to state-sponsored racism?