Foster v. Chatman: Race infects death penalty to the core.

The Only Way to Get Rid of Racial Bias in Death Penalty Cases Is to Get Rid of the…

The Only Way to Get Rid of Racial Bias in Death Penalty Cases Is to Get Rid of the…

The law, lawyers, and the court.
May 5 2016 4:04 PM

There’s No Separating the Death Penalty and Race

The only way to get rid of racial bias in death penalty cases is to get rid of the death penalty.

Death penalty protesters.
People protest the death penalty in 2015 in Boston.

Scott Eisen/Getty Images

Back in 1987, Timothy Foster was a poor, black, intellectually impaired teenager facing trial for the murder of an elderly white woman in rural Georgia.* During jury selection, the prosecution highlighted in green the name of every black person on the jury list and helpfully added a note explaining that a green highlight meant the person was black. For good measure, they also placed a B next to each black person’s name and circled the word black where it appeared on the jury questionnaires as a racial identifier. Then, in case “it [came] down to having to pick one of the black jurors,” the prosecutors also ranked blacks against one another. After securing an all-white jury, prosecutors argued for the death penalty for Foster to “deter other people out there in the projects.” The U.S. Supreme Court is expected to decide soon whether illegal race discrimination infected that trial, a decision that will come after Foster has spent nearly three decades on Georgia’s death row. It seems likely the court will grant Foster a new trial, but it’s hard to imagine even a favorable Supreme Court ruling in his case fixing the biggest problem with the death penalty itself: Even in 2016, its use remains inextricably, hopelessly intertwined with our national legacy of racial bias and exclusion.

The mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases and racial cynicism into the electorate. It undermines not only the legitimacy of the death penalty, but also the legitimacy of the government as an entity capable of rendering impartial justice. It robs people of the right to participate in their government, and it makes whole swaths of people cynical about the government itself and their role in it. Yet, even if the Foster case provides another rebuke of the illegal practice of striking jurors because of their race, 30 years of experience suggests that the court’s case-by-case reversals will not eradicate racial discrimination in jury selection. It still happens all over the country and continues to taint our broken death penalty system. 

Advertisement

As older cases like Foster’s move toward execution dates, the inextricable ties between race and the death penalty in America become increasingly salient. This is because the death penalty generally is in decline at a time when there is heightened attention to racial unfairness throughout the criminal justice system. Consider the last couple of months alone:

  • On April 12, Georgia executed Kenneth Fults—another poor, intellectually impaired black man—even though a juror in his case acknowledged deciding to vote for death before hearing the evidence because “that’s what that nigger deserved.”
  • A dumb nigger” is what one member of an all-white South Carolina jury called Johnny Bennett, a black defendant who received relief from a federal judge in March because the prosecutor called him a monster, caveman, “beast of burden,” and “King Kong.”
  • Last month, the U.S. Supreme Court rescheduled its review of a petition urging the justices to intervene in a Harris County, Texas, death penalty case where a psychologist testified that Duane Buck’s blackness makes him more dangerous.

An optimist might hold out hope that although racial bias infects these older cases, the ties between race and the death penalty have loosened in more recent cases as the nation continues to make racial progress. Unfortunately, though, while the death penalty has become increasingly rare in practice, many of the remaining cases are still intertwined with the nation’s long legacy of racism. And, even in the cases with explicit, unconscionable racial bias—for example, the execution of Fults last month—current elected prosecutors, governors, and state and federal courts have failed repeatedly to intervene or object.

Of the more than 3,100 counties in the United States, only 16 or so still impose death sentences with any regularity. Consider, for example, the following three jurisdictions, all of which are among the tiny handful of outlier death sentencing counties:

Advertisement
  • Caddo Parish, Louisiana’s nickname is “Bloody Caddo” due to its history as the place with the second-highest number lynchings in the country between 1877 and 1950. Over the past six years, 66 percent of Louisiana’s death sentences come from Caddo Parish, a jurisdiction with 5 percent of the state’s population. Yet, no white defendant has ever been sentenced to death in Caddo Parish for killing a black person. As recently as 2011, Lamondre Tucker—an 18-year-old with an IQ of 74—was sentenced to death in a courthouse adorned with the Confederate flag. Last year, a study found that prosecutors struck qualified black residents from Caddo juries three times more often than qualified white residents.
  • In Houston County, Alabama, a local police chief started a chapter of the Sons of the Confederacy, posed in front of a Confederate flag, and named his son after the first grand wizard of the Ku Klux Klan. A 2010 study found that prosecutors in Houston County strike 80 percent of qualified black jurors from death penalty cases. Alabama courts have reversed at least three death sentences from Houston County since 2010.
  • At the end of March, the Nevada Supreme Court found that Clark County prosecutors engaged in illegal racial discrimination in jury selection for the second time in the past two years. In yet another recent Clark County case involving questionable jury selection practices, a state supreme court justice said to a prosecutor during oral arguments: “I just don’t understand knocking these two black women off [the jury]. I just don’t understand why it’s so necessary in these cases. You’re so afraid of losing a case that you’re knocking off African Americans consistently.” That case is still pending.

Despite all the racial progress over the past decades, how can it be that race continues to plague the nation’s death penalty?

The death penalty has always been rooted in a felt need for retribution—payback, evening the score, revenge. Indeed, in 1914, the Shreveport Times editorial board responded to “suggestions from some of the newspapers” that Louisiana “abolish the death penalty” with an argument that repeal of the death penalty would result in an “increase in the number of lynchings” due to “the vengeance of an outraged citizenship.” In 1972, in Furman v. Georgia, Supreme Court Justice Potter Stewart made a similar point: “When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.”

The reality today is that the death penalty no longer contributes meaningfully to any felt need for retribution. Life without parole or other serious sanctions satisfy the retributive appetite for most prosecutors and jurors in most places in America. We know this is true because in this nation of 320 million people, with more than 10,000 annual murders, surely there would be much more frequent resort to death sentences in far more counties and states if executions were truly necessary for retributive purposes. And, when we look closely at some of the outlier counties that still resort to death sentences, we see this racialized need for retribution continues to drive how prosecutors seek death sentences and how juries decide them.

Advertisement

These are places like Caddo Parish where prosecutors like Dale Cox make their racially filtered, outsized-personality–driven need for retribution known unmistakably: Last year, after calling society “a jungle,” Cox told a reporter that “we need to kill more people” because revenge “brings to us a visceral satisfaction.” Cox’s comments epitomize what Justice Anthony Kennedy meant when he cautioned in 2008’s Kennedy v. Louisiana, a case where the court held that the death penalty is an unconstitutionally excessive punishment for nonhomicide offenses, that retribution is the motive for punishment that “most often can contradict the law’s own ends.” “When the law punishes by death,” Kennedy wrote, “it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Though it is up to prosecutors to guard against retributive excess, when they do not, jurors are meant to be the second line of defense. Most death penalty jurors are white. This is a big deal because research shows that white jurors tend to implicitly associate black faces with the concept of retribution, implicitly associate white faces with a sense of relative value or worth, show greater support for the death penalty generally, and may be less able to consider mitigating circumstances when they relate to black defendants. When black jurors are placed on juries, they help guard against retributive excess. Yet, in the few places that continue to use the death penalty consistently today—in Caddo Parish, Clark County, and Houston County, for example—prosecutors continue to disproportionately strike qualified black prospective jurors.

In other words, in these outlier counties, neither prosecutorial discretion nor the constitutionally built-in jury check on retribution appears to be functioning as intended. That leaves the judiciary. The court should grant new trials for Timothy Foster, Duane Buck, and Lamondre Tucker. But it would be naïve to believe that new trials in these cases would put a dent in the broader race problems that continue to plague American capital punishment. Indeed, it has become indisputably clear in the 40 years since the Supreme Court held the modern death penalty constitutional that the only way to eradicate race from the death penalty is to eradicate the death penalty.

Correction, May 5, 2016: This post originally misstated the year of Timothy Foster’s trial. It was 1987, not 1986. (Return.)

Robert J. Smith is a senior fellow at Harvard Law School’s Charles Hamilton Houston Institute and a visiting scholar at the University of Texas at Austin School of Law. Follow him on Twitter.