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September 26, 2019

Background on race and death sentencing for our discussion of McClesky and Racial Justice Act

Next week, we will start the final part of our death penalty discussions by exploring the issue of race in the application of the death penalty.  I (too briefly) mentioned in class some data on race and the death penalty, and I thought I would link to some resources related to this issue to get a running start to our discussion of why this kind of data has not prompted much of a constitutional or policy response:

From the ACLU: "Race and the Death Penalty" (somewhat dated)

From the Death Penalty Information Center: "Executions by Race and Race of Victim" (up-to-date)

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies)

Recent news article following announcement of federal execution dates: "Death Penalty Makes a Comeback in US as Racial Disparities Persist."  An excerpt:

The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.

Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve a black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white

Also, for anyone really engaged by these issues, consider checking out the Fall 2012 issue of the Ohio State Journal of Criminal Law which had a symposium focused on "McClesky at 25."

September 26, 2019 in Data on sentencing, Death penalty history, Race and gender issues, Who decides | Permalink


During the survey at the start of class I tried to contort myself regarding the death penalty. The contortion stems from the fact that, theoretically, I do believe that the death can often be the only just punishment for certain heinous and fatal offenses. Furthermore, as I've delved into educative theory of punishment, I found myself drawn to the notion that in certain circumstances, the only way to posthumously vindicate the rights of murder victims is to use the death penalty. The victim was a person. They had an inherent dignity and right to life that was stolen by someone else. There can be no restitution. What good is deterrence (either individual or general) after the fact of the murder? What good is rehabilitation after the kinds of murders worthy of the death penalty, when their victim will remain just as dead. Put another way, why should the kinds of murderers we're talking about even be afforded the opportunity to be rehabilitated in these cases? Retribution, obviously, cries out for such punishments in those circumstances.

But the reality is that those theoretical concerns are blown away by the racial and procedural issues that appear, at present, completely inextricable from the administration of death as punishment in the United States justice system. I thought that even before this data, where my focus was mainly on the offenders. But adding in that not just the race of the offenders but the race of victims so severely changes the calculus of whether the death penalty will be administered goes beyond even a pervasive lottery as we've discussed in class, but into the realm of capriciousness.

Posted by: Frank Bumb | Sep 27, 2019 2:03:15 PM

When we consider the role race plays in sentencing and in the death penalty, wrongful convictions speak volumes about the eagerness to hand down sentences that give the appearance of a "crackdown" on crime without, especially when it comes to people of color, really caring whether the right perpetrator receives the punishment.

Our discussion on race and the death penalty significantly overlaps with the very same issues Bryan Stevenson addresses in his book "Just Mercy," a non-fiction work about a young lawyer and his project, The Equal Justice Initiative, which focuses on overturning wrongful convictions of inmates on death row. From the stories Stevenson tells of his own work, we get this sense that, in many ways, the justice systems views people of color as a "group," whose individual members are indistinguishable from one another, at least not worthy of the same distinctions afforded to others. The message the justice system has sent with wrongful convictions on death row is that the system doesn't care whether you committed the crime or not, as long as it can make a reasonable case that you fit the profile. It's evident from these cases, most of which are tried with predominantly white juries, that the system has a way of handing down harsher sentences and being more ready to convict when an individual looks a certain way. This is telling in the fact that 47% of overturned convictions are convictions of African American individuals, while these individuals compose only 13% of the American population.

Posted by: Micaela Taylor | Oct 14, 2019 1:17:02 PM

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