Negroes execution stats--disparity

"We simply cannot say we live in a country that offers equal justice to all Americans when racial disparities plague the system by which our society imposes the ultimate punishment." US Senator, January 2003(1)

Introduction

The USA will soon carry out its 300th execution of an African American prisoner since resuming judicial killing in 1977. By 10 April 2003, 290 blacks had been put to death, and at least a further 10 were scheduled to be killed by the end of July. African Americans are disproportionately represented among people condemned to death in the USA. While they make up 12 per cent of the national population, they account for more than 40 per cent of the country’s current death row inmates, and one in three of those executed since 1977.

While the United States resorts to the death penalty more than most countries – it has carried out well over 700 executions since 1990 – it is also the case that only a small percentage of murders result in execution in the United States. It is relevant, therefore, to ask if the capital justice system selects these defendants for death in a manner that is free from racial bias.

On 18 March 2003, two African American men were executed. The two people for whose murder Louis Jones and Walanzo Robinson were killed – Tracie McBride, white, and Dennis Hill, black – were among some half a million people murdered in the USA since 1977. Blacks and whites were the victims of these murders in almost equal numbers.(2) Yet 80 per cent of the people executed since 1977 were convicted of murders involving white victims.

Most murders in the USA are intra-racial, that is, the alleged perpetrator and the victim are of the same race, as in Walanzo Robinson’s case.(3) Yet of the 845 prisoners executed between 17 January 1977 and 10 April 2003, 53 per cent were whites convicted of killing whites and 10 per cent were blacks convicted of killing blacks.(4)

Federal death row inmate Louis Jones became the 183rd African American to be executed in the USA since 1977 for the murder of a white person (22 per cent of all executions). In the same period, 12 whites were put to death for the murder of blacks (1.4 per cent of executions).

At least one in five of the African Americans executed since 1977 had been convicted by all-white juries, in cases which displayed a pattern of prosecutors dismissing prospective black jurors during jury selection. Louis Jones and Walanzo Robinson, like yet many other black defendants, were sentenced to death by juries made up of 11 whites and one African American. In both cases, as has happened on other occasions, the solitary black juror later alleged that he or she had been singled out for heavy pressure from their fellow jurors in order to get them to change their vote from life to death.

It is over eight years since the United States ratified the Convention on the Elimination of All Forms of Racial Discrimination, thereby committing itself to work against racial discrimination, including its effects in the criminal justice system. In general, courts and legislatures in the USA have failed to act decisively in the face of evidence that race has an impact on capital sentencing, perhaps out of a collective blind faith that "America will always stand firm for the non-negotiable demands of human dignity", including "equal justice", as President Bush has asserted.(5)

This paper, which builds on a 1999 Amnesty International report,(6) outlines recent studies indicating that race, particularly race of victim, continues to play a role in who is sentenced to death in the USA. Illustrated with cases throughout, it notes under-representation of minority jurors in capital trials, including those where the state appears to have unfairly removed black jurors during jury selection. It outlines recent research into the attitudes of capital jurors suggesting that conscious or unconscious racism can infect juror decision-making. It notes the failure of the federal authorities to offer remedial leadership on the issue of racial bias in the capital justice system, and also discusses the possible links between race and the error-prone nature of the US capital justice system. It points out that executive clemency cannot be depended upon to prevent fatal errors and arbitrariness.

A clear majority of countries have abolished the death penalty in law or practice, leaving the USA out of step on this fundamental human rights issue. The death penalty in the United States remains an act of racial injustice as well as one which extends the suffering of one family – that of the murder victim – to another, the loved ones of the condemned prisoner. Abolition is the only solution to this cruel, inhuman, degrading and irrevocable punishment.

The McCleskey obstacle

"To prevail under [the Equal Protection] Clause, petitioner must prove that the decision-makers in his case acted with discriminatory purpose… Because discretion is essential to the criminal justice process, exceptionally clear proof is required before this Court will infer that the discretion has been abused." US Supreme Court, McCleskey v Kemp (1987).

A defining moment on this issue came in 1987, when the US Supreme Court rejected the appeal of Warren McCleskey, an African American man condemned to death in Georgia for the murder of a white police officer. The Justices had been presented with a detailed study showing that defendants who killed whites in Georgia were more than four times more likely to be sentenced to death than those who killed non-whites, a probability that was even higher if the defendant was black and the victim white. A majority of Justices held that "apparent disparities in sentencing are an inevitable part of our criminal justice system", and that for a defendant to be successful in an appeal, he or she would have to provide "exceptionally clear proof" that the decision-makers in his or her particular case had acted with discriminatory intent.(7) Warren McCleskey was executed in 1991. There have been nearly 700 more executions in the USA since then, 80 per cent of them for murders involving white victims.

Dissenting from the McCleskey majority, Justice Brennan wrote: "[W]e cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past… [W]e ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present." Justice Powell, who authored the 5-4 decision, said after he retired from the Court that he wished he had voted differently in the 1987 ruling, and that he had come to think that the death penalty should be abolished.(8) The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, in his 1998 report on the USA, suggested that the McCleskey decision may be incompatible with the country’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination, "which requires States parties to take appropriate steps to eliminate both direct and indirect discrimination".(9)

The McCleskey ruling placed a huge obstacle in the way of defendants seeking to challenge their death sentences on the basis of evidence of racial discrimination in sentencing. In 1994, Girvies Davis, a black man convicted by an all-white jury of the murder of a white victim, appealed on the basis of a study indicating that the murder of a white in Illinois was about six times more likely to lead to a death sentence than the murder of a black, and that a black defendant accused of killing a white was 3.75 times more likely to be sentenced to death than a white charged with killing another white person. The federal court wrote that "our analysis begins and ends with McCleskey v Kemp", and rejected the appeal.(10) Davis was executed in 1995. The following year, the Missouri Supreme Court rejected statistical and anecdotal evidence of county-level prosecutorial discrimination, stating that the defendant had failed to show "purposeful discrimination or any effect on his case, specifically".(11) In 1997, the South Carolina Supreme Court ruled that death row inmate Raymond Patterson had "not proven discriminatory purpose by exceptionally clear evidence". Patterson, an African American convicted of the murder of a white man, raised evidence of bias, including that the county prosecutor had sought the death penalty in 13 of the 128 cases involving white victims and none of the 44 cases involving black victims. He also raised other evidence, including of the exclusion of blacks from juries.(12) In 1999, the Oklahoma Court of Criminal Appeals similarly rejected a claim brought by Billy Alverson, a black man convicted by all-white jury, holding that he could not show that he had been the victim of any discrimination specific to his case.(13)

Today, the McCleskey ruling remains an obstacle to progress. For example, in October 2001, the US Court of Appeals for the Sixth Circuit acknowledged that the disparities on Ohio’s death row were "extremely troubling", but wrote that "McCleskey remains controlling law on the ability of statistically-based arguments concerning racial disparity to establish an unconstitutional application of the death penalty. Although the racial imbalance in the State of Ohio’s capital sentencing system is glaringly extreme, it is no more so than the statistical disparities considered and rejected by the Supreme Court in McCleskey". (14)

The McCleskey decision had said that the issue of death penalty bias was a matter "best presented to the legislative bodies". In 1994, however, an attempt to introduce a national Racial Justice Act, which would have allowed defendants to challenge their death sentences by producing statistical evidence of racial discrimination in the judicial process, failed. To date, Kentucky is the only state to have enacted a Racial Justice Act, which it did in 1998.

Many legislators are still failing to grasp the nettle. On 18 March 2003, Senators in Maryland rejected legislation to impose a moratorium on executions there in light of research indicating that the race of the murder victim played a significant role in capital sentencing. Opponents of the bill included one Senator who had argued, in words that echoed the McCleskey majority, that "the system is as fair as it possibly can be. Unfortunately, there are disparities".(15) All of the African American members of the Senate voted to approve the moratorium. All 14 of the Republican Senators voted against the bill.(16)

The evidence of bias continues to mount

"They point to the potentially arbitrary application of the death penalty, adding that the race of the victim and socio-economic factors seem to matter". US Supreme Court Justice, 2002(17)

Racial disparities can be seen throughout the criminal justice system in the USA. While African Americans make up 12 per cent of the country’s population, they accounted for 48 per cent of all inmates in state or federal prisons and local jails on 30 June 2002. On that day, over 12 per cent of black males between the ages of 25 and 34 were incarcerated compared to 1.6 per cent of white males in that age group. The Justice Department’s chief prison demographer described the proportion of young black males in prison or jail as "very dramatic". During a lifetime, the rates are even higher. The Bureau of Justice Statistics has estimated that 28 per cent of black men will be sent to jail or prison during their lives.(18)

In its report on the USA released on 14 August 2001, the United Nations Committee on the Elimination of Racial Discrimination, the expert body established by the Convention on the Elimination of All Forms of Racial Discrimination to oversee implementation of that treaty, expressed its concern at such disparities in incarceration rates. Noting the socio-economic marginalization of a significant part of the African American and other minority communities, the Committee urged the authorities "to ensure that the high incarceration rate is not a result of the economically, socially and educationally disadvantaged position of these groups."(19)

The Committee also expressed its concern at the "disturbing correlation between race, both of the victim and the defendant, and the imposition of the death penalty". It urged the US authorities "to ensure, possibly by imposing a moratorium, that no death penalty is imposed as a result of racial bias on the part of prosecutors, judges, juries and lawyers or as a result of the economically, socially and educationally disadvantaged position of the convicted persons."(20)

African Americans account for 43 per cent of the USA’s current 3,700 death row inmates and about 34 per cent of prisoners executed since 1977.(21) However, especially since the US Supreme Court outlawed the death penalty for the rape of an adult woman – a combination of crime and punishment with an extraordinary history of discrimination against black men – it is the identity of the murder victim which provides the clearest indication that race remains an ingredient of capital sentencing.(22)

The population of the USA is approximately 75 per cent white and 12 per cent black. Since 1976, blacks have been six to seven times more likely to be murdered than whites, with the result that blacks and whites are the victims of murder in about equal numbers. Yet, 80 per cent of the more than 840 people put to death in the USA since 1976 were convicted of crimes involving white victims, compared to the 13 per cent who were convicted of killing blacks. Less than four per cent of the executions carried out since 1977 in the USA were for crimes involving Hispanic victims. Hispanics represent about 12 per cent of the US population. Between 1993 and 1999, the recorded murder rate for Hispanics was more than 40 per cent higher than the national homicide rate.(23)

Such statistics alone do not prove bias in the justice system, and could reflect patterns of offending relating to wider social inequalities. However, studies have consistently indicated that race, particularly the race of the murder victim, influences capital sentencing in the USA, even after other factors have been taken into account. In 1990, the US General Accounting Office reviewed 28 such studies that had been conducted around the country. It concluded that "in 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."(24)

In 1994, a US Supreme Court Justice wrote: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."(25) Four years later, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions expressed his concern that "the imposition of death sentences in the United States seems to continue to be marked by arbitrariness. Race, ethnic origin and economic status appear to be key determinants of who will, and who will not, receive a sentence of death."(26) The evidence has continued to mount since then.

North Carolina

Harvey Green, black, was put to death in North Carolina in 1999 for the murder of two white people in Pitt County in 1983. He became the only person to be executed for a crime committed in the state in 1983, although there were 550 other murders there that year. In Pitt County, there were 11 murders; in nine cases the victims were black. Harvey Green’s was the only case in which the state sought the death penalty. From 1983 to 1992, there were 88 murders in Pitt County. Over two-thirds of the victims were black. Only four murders were inter-racial. The state sought death in all three cases involving white victims and black defendants. It did not do so in the white-on-black killing. In all four cases in which Pitt County juries returned death sentences between 1983 and 1992, the defendants were black.

In 2001, the most comprehensive study on capital sentencing ever conducted in North Carolina found that "racial factors – specifically the race of the homicide victim – played a real, substantial, and statistically significant role in determining who received death sentences in North Carolina during the 1993-1997 period. The odds of receiving a death sentence rose by 3.5 times among those defendants (of whatever race) who murdered white persons".(27) About 40 per cent of murder victims in North Carolina are white, yet since resuming executions in 1984, the state has executed 23 inmates, 21 (91 per cent) of them for the murder of white victims. The population of North Carolina is 72 per cent white, and 21.5 per cent black. Its death row population is 55 per cent black, and 39 per cent white.

The most recent execution in North Carolina was on 10 December 2002, Human Rights Day. Desmond Carter, black, was put to death for the murder of a white woman. He was sentenced to death in July 1993 in Rockingham County, where more than half of murder victims are African American. In the county’s murder cases which have resulted in death sentences, seven of the eight murder victims were white.

South Carolina

In 2002, South Carolina death row inmate Anthony Green appealed to the Inter-American Commission on Human Rights (IACHR) on the grounds of racial bias in the state’s capital justice system. The appeal cited research that indicated that "in black defendant/white victim cases, the death-sentencing rate is 67.8 death sentences per 1000 homicides (50 death sentences per 738 murders). In white defendant/white victim cases, the death sentencing rate is 37.1 death sentences per 1000 homicides (72 death sentences for 2,654 murders)."

The appeal to the IACHR claimed that although "most murder victims in South Carolina are African-Americans, only 0.46% of African-American victim cases result in death sentences, whereas 3.4% of white victim cases result in the death penalty." The claim said that the disparity was even greater in Charleston County, where Anthony Green was tried. There, it was claimed, the state was 20 times more likely to seek the death penalty in a case involving a black defendant and white victim compared to cases where the victim was African American.

Earlier, Earl Matthews, another black South Carolina death row inmate who had been tried in Charleston County for the murder of a white victim, had challenged his death sentence in the US courts on grounds of racial discrimination in the prosecutorial decision-making process. Between 1981 and 1990, the prosecutor had sought the death penalty in 10 out of 25 murder cases in which the defendant was black and the victim white (40 per cent). The death penalty was only sought in two of 70 cases in which the defendant and victim were both black (2.9 per cent). During the same period, the prosecutor had sought the death penalty in 32.3 per cent of cases in which the victim was white, and in only 5.2 per cent of cases where the murder victim was black. Earl Matthews’s appeal had also presented non-statistical evidence of racial bias in the prosecutor’s office. Relying on the McCleskey v Kemp decision, the courts rejected Earl Matthews’s claim on the grounds that he had not proved discrimination in his particular case, and he was executed in 1997.

Anthony Green, who was sentenced in 1988, was put to death on 23 August 2002, despite a call by the Inter-American Commission to stay his execution so that it could consider his claim.

New Jersey

In 2000, the New Jersey Supreme Court adopted a monitoring system to determine whether the state’s capital justice system suffered from racial bias. The first report, released in June 2001, covering 2000-2001, found "unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a [death] penalty trial than cases involving killers of African-American victims."(28) It suggested that the disparities might be due to geographical differences, namely that prosecutors in counties with higher proportions of white victims were seeking death sentences more often than counties with larger non-white populations. The report looked at 490 cases that were punishable by the death penalty. Of these cases, 220 involved white victims, 192 involved African American victims, and 61 involved Hispanic victims. Prosecutors sought the death penalty in 48 per cent of white-victim cases, compared with 26 per cent of cases involving African American victims, and 34 per cent of cases with Hispanic victims. While the report did not find significant statistical evidence that race of defendant or race of victim was impacting on actual death sentences ultimately handed down, it was sufficiently disturbed by the race-of-victim disparities in capital charging, that it referred the matter to the state Attorney General for remedial action. However 18 months later, the Attorney General’s Office had reportedly not acted. A second annual report, covering 2001-2002, released in February 2003, reportedly found results similar to the first. Prosecutors sought execution in 42 per cent of white-victim cases, compared with 22 per cent of African-American cases, and 29 per cent of cases with Hispanic victims.(29)

Maryland

A study at the University of Maryland, released on 7 January 2003, analysed 1,311 murders in Maryland between 1978 and 1999 which were held to be punishable by the death penalty under state law. The study found significant racial and geographic bias in the state’s capital sentencing. On race, it found that blacks who kill whites are 2.5 times more likely to be sentenced to death than whites who kill whites, and 3.5 times more likely than are blacks who kill blacks. "In sum, offenders who kill white victims, especially if the offender is black, are significantly and substantially more likely to be charged with a capital crime (state’s attorney decides to file a notification to seek the death penalty). Those who kill white victims are also significantly more likely to have their death notification "stick" than those who kill non-whites… Moreover, while these effects do not appear at other, later decision-making points in the capital sentencing process, they are generally not corrected". (30) This is reflected on the state’s death row, where there are 12 inmates, eight black and four white. All were convicted of killing white people. In March 2003, the state Senate rejected moratorium legislation.

Texas

Texas is the main death penalty state in the USA, accounting for more than a third of the country’s executions since judicial killing resumed in 1977.(31) Research in the 1980s concluded that in Texas a murder of a white person was more than five times more likely to result in a death sentence than the murder of an African American.(32) Statistics compiled by the Texas Defender Service (TDS) suggest that racial disparities continued into the late 1990s. The organization found, for example, that while 0.8 per cent of murder victims in Texas were white women, 19.3 per cent of the prisoners arriving on death row between 1 January 1995 and 31 December 1999 had been convicted of killing white women. Eleven per cent of the defendants condemned to death during this period had been convicted of killing black men. Yet black men accounted for 23 per cent of murder victims in Texas.(33)

TDS also conducted an initial examination of Montgomery County, a Texas jurisdiction where 85 per cent of the population is white. The group looked at murders in the county between 1 January 1995 and 31 December 1999. Of the 55 cases, 31 per cent involved non-white victims, none of which resulted in a death sentence. The arrest rate varied according to the race of the victim. In white victim cases, the arrest rate was 92 per cent, in non-white victim cases, the rate was 58 per cent. The rate at which the cases went to trial also varied. Ninety per cent of the cases involving white victims went to trial, whereas only two cases involving non-white victims were tried.

All 17 people against whom Montgomery County prosecutors have successfully sought a death sentence since 1977 were convicted of murdering white victims. They include three black defendants. All three – Glen McGinnis, executed in 2000 for a crime committed when he was 17 years old; Marcus Green sentenced to death in July 2002; and Clarence Brandley, released from death row in 1990 after a judge found that racial discrimination had influenced his prosecution and wrongful conviction – were sentenced by all-white juries.

Of the 301 prisoners put to death in Texas between December 1982 and 10 April 2003, 235 (78 per cent) were executed for crimes involving white victims. In 64 cases (21 per cent), the defendant was an African American convicted of killing a white person. At the time of writing, five of the 12 prisoners scheduled for execution in Texas before the end of July 2003 were African Americans convicted of killing white people.(34) None of the 301 people executed have been whites convicted of killing blacks. In a highly publicized case in 1999, two white men were sentenced to death for killing an African American man, James Byrd, by chaining him to the back of their pickup truck and dragging him to his death. John King and Lawrence Brewer became the first convicted murderers on death row in Texas who were white and whose victim was black. James Byrd’s son has campaigned against their execution, arguing that "all [the death penalty] does is bring more hate into the world".(35)

Virginia

Virginia lies behind only Texas in the number of executions carried out since 1977. By 10 April 2003, Virginia had executed 88 prisoners. In 81 per cent of cases, the crimes involved white victims. In 35 per cent of cases the executed prisoners were black and the victims white.(36) In a report published in 2000, the American Civil Liberties Union (ACLU) concluded that although Virginia’s capital justice system is not as overtly racist as it was in previous times, "race continues to be a significant factor in capital sentencing" in the state. The ACLU noted that between 1978 and 1997, nearly 58 per cent of Virginia’s murder victims were black, and 41 per cent of the victims of apparently capital murders were black. It also noted, however, that "of the 131 crimes for which a death sentence was imposed during the same period, only 20 per cent of the victims were black". It concluded that in cases of rape/murder, the probability that the offender will be sentenced to death is about 19 per cent if the victim is black, and about 42 per cent if the victim is white. It further found that blacks who rape and murder white victims in Virginia are over four times more likely to be sentenced to death than blacks who rape and murder black victims. In robbery murders, the ACLU found, a death sentence becomes over three times greater if the victim is white than if the victim is black.(37)

Pennsylvania

In March 2003, Pennsylvania’s Committee on Racial and Gender Bias in the Justice System, appointed by a 1999 state Supreme Court order, recommended a moratorium on executions in the state. It wrote in its final report: "Based on existing data and studies, the Committee concluded that there are strong indications that Pennsylvania’s capital justice system does not operate in an evenhanded manner" and that "at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty". The report continued: "The ability to prove discrimination where it exists is beyond the resources of most capital defendants and an avenue for redress in the courts remains elusive, particularly because federal constitutional doctrine fails to provide an effective remedy for racial and ethnic discrimination. Legislative initiatives that would allow the showing of a pattern and practice of disparate treatment to stand as proof of discrimination have failed." As well urging a moratorium on executions, the Committee recommended that the Pennsylvania legislature pass a Racial Justice Act "that allows for the admission of evidence of a pattern and practice of disparate treatment in both the prosecutorial decision to seek the death penalty and in sentencing outcomes."(38) The Pennsylvania Governor and Attorney General responded that they opposed a moratorium (see also "A glimpse at Pennsylvania", below).

Ohio

There are some 208 people awaiting execution in Ohio, a state with a population that is 85 per cent white and 11 per cent black. Fifty-one per cent of the condemned inmates are black, and 45 per cent are white. In its 1999 report, the Ohio Commission on Racial Fairness, commissioned by the Supreme Court of Ohio, noted that African American males "compose approximately five per cent of the Ohio population, yet they compose 50 per cent of death row inmates" (currently 105 of 208 inmates). The Commission wrote: "This issue here is not whether one is a proponent or opponent of capital punishment or whether those on death row deserve to be there. The issue is the integrity of the criminal justice system, whether black males are looked upon as expendable and treated differently than white males resulting in disparate sentencing".

In around 70 per cent of Ohio’s death penalty cases, the murders involved white victims. In about a quarter of the cases, the defendant was black and the victim white.(39) The Commission on Racial Fairness wrote of such race-of-victim disparities: "The numbers speak for themselves. A perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers."(40) The federal Sixth Circuit Court of Appeals said in 2001 that the racial imbalance in Ohio’s death penalty is "glaringly extreme" and "to say the least, extremely troubling". It said it was unable to act as it was constrained by the US Supreme Court’s 1987 McCleskey decision (see introduction).(41)

Ohio carried out its first execution since 1963 in 1999, the year that the Commission on Racial Fairness released its report. Six more executions have been carried out since then. In five of the seven executions, the prisoner was put to death for the murder of a white victim. One of those executed was Alton Coleman, an African American man put to death on 26 April 2002 for the murder of a white woman. During jury selection at his trial, the prosecution had used nine of its 12 peremptory challenges – the right of either side to dismiss prospective jurors without giving a reason – to exclude all but two of the African-American jurors qualified to serve. The issue of whether the prosecutors had acted discriminatorily was defaulted as an appeal issue because Coleman’s original appeal lawyers did not raise it. In an interview shortly before his execution, Alton Coleman said of his life "I think I was doomed. Perhaps I should have died at birth".(42) As an infant, he had been abandoned by his mother in a rubbish bin. He was taken in by his grandmother, but subjected to severe physical and sexual abuse. He was reported to be brain damaged. The jury was not told of this and other mitigating evidence by his trial lawyer. At the time of writing, four more men were due to be executed in Ohio by the end of June 2003. Three of them – Jerome Campbell, Ernest Martin and Lewis Williams – were African American, and one, David Brewer, was white. Lewis Williams, convicted of killing an elderly white woman, was scheduled to be become the last of the four to be put to death, with an execution date of 24 June 2003. A federal judge has described the legal representation he received at the sentencing phase of his trial as "wholly inadequate".(43) As outlined below, poor legal representation is a widespread problem.

Poverty, race, and legal representation

"I never met with him on death row. I never wrote to him. I never consulted with Mr Rojas about his case during my representation of his state habeas petition". Affidavit of Leonard Rojas’ appeal lawyer

Leonard Rojas, a Hispanic man sentenced to death in 1996, was too poor to afford a lawyer to represent him for his state-level habeas corpus appeal(44), so the Texas Court of Criminal Appeals (TCCA) appointed one for him. The lawyer had never handled such an appeal, had been sanctioned several times for neglecting clients, and was under treatment for serious mental illness. He filed a minimal appeal for Rojas, in which many of the claims were inappropriate. His failure to present appropriate claims in state court meant that his client lost the possibility of federal review of such claims. Leonard Rojas was executed on 4 December 2002. Two months later, three TCCA judges filed a dissenting opinion arguing that the Court should have granted Rojas relief "because it appointed an attorney who should not have been appointed to represent a capital defendant in his one opportunity to raise claims not based solely on the record."(45)

In an increasingly abolitionist world, the USA’s use of the death penalty does immense damage to its international image. A United States diplomat in Europe wrote in 2000 of his surprise at the level of criticism about the US death penalty that he encountered in his ambassadorial position. Among other things, he wrote that the death penalty in the USA is seen oversees as "both racist and discriminatory, affecting a disproportionate number of minorities who are often represented by attorneys pictured as incompetent or uninterested".(46)

The link between poverty and race should not be overlooked. Pennsylvania’s Committee on Racial and Gender Bias in the Justice System, for example, pointed out in its March 2003 report that "issues of racial and ethnic bias cannot be divorced from the issue of poverty. Unless the poor, among whom minority communities are overrepresented, are provided adequate legal representation, including ample funds for experts and investigators, there cannot be a lasting solution to the issue of racial and ethnic bias in the capital justice system".

The sponsor of a bill proposing a commission to conduct a one-year study of New Jersey’s capital justice system, including whether there is any racial discrimination, noted in January 2003 that a "troubling aspect is the state’s history of racial bias in sentencing decisions. Few defendants with private attorneys find themselves on death row, leaving poorer, minority defendants with greater chances of receiving the death penalty."(47)

Many white indigent capital defendants have been denied adequate legal representation over the years. Minority defendants, too, have been appointed lawyers who were incompetent, under-resourced, or operating under a conflict of interest. There are many examples.

Bobby Fields, black, was executed in Oklahoma on 13 February 2003. He was sentenced to death in 1994 for the murder of an elderly white woman. He always maintained that the shooting was accidental. Bobby Fields was assigned an inexperienced lawyer who had never handled a death penalty case before. Despite the lawyer’s repeated requests, she was not provided with co-counsel. She admitted to being intimidated by the fact that the lead prosecutor was an experienced official known for pursuing death sentences aggressively. The defence lawyer wanted Bobby Fields to forgo a jury trial and instead to enter a blind plea of guilty (that is a guilty plea with no deal as to what sentence would ensue). She did so believing that the judge, from comments he had made to her, would not pass a death sentence in this case. Bobby Fields did not want to plead guilty, believing that a jury would be persuaded that the shooting was accidental. But the defence lawyer continued to insist, and Fields finally agreed. The judge sentenced him to death. On 6 January 2003, after hearing the original trial lawyer admit to her inadequate representation of Bobby Fields and testimony from an expert in ballistics and crime scene reconstruction in support of Bobby Fields’s claim that the gun had gone off accidentally, the state Pardon and Parole Board voted to recommend that the death sentence be commuted to life imprisonment without the possibility of parole. The Governor rejected their recommendation and Bobby Fields was executed.

Walter Mickens, black, was executed in Virginia on 12 June 2002. He was sentenced to death in 1993 for the murder of a white teenager, Timothy Hall. At the time Hall died, he was facing weapons and assault charges. The judge dismissed the charges because of Hall’s death. On the next working day, the same judge appointed the lawyer who had been representing Hall to represent Walter Mickens. Neither the judge nor the lawyer disclosed to Mickens that he was being defended by the lawyer of the murder victim. The matter remained undisclosed until it was discovered years later by Walter Mickens’s appeal lawyer. However, the conviction and death sentence were allowed to stand.

Four Supreme Court justices dissented in no uncertain terms, arguing that Mickens should get a new trial. Justice Stevens wrote: "Mickens had a constitutional right to the services of an attorney devoted solely to his interests… Setting aside Mickens’s conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases... A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice".(48)

In effect, Walter Mickens was discriminated against on the grounds of his economic status. Because he could not afford his own attorney, the state appointed one. It did so without ensuring that the lawyer it appointed was not labouring under a conflict of interest, or ensuring that Mickens knew of any such potential conflict, thereby giving the defendant the opportunity to insist upon different representation if he so chose. Such discrimination violated Walter Mickens’s right to be "equal before the courts and tribunals", as well as undermining his right to defence, both protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which the USA ratified in 1992.(49)

As in 80 per cent of the more than 840 executions carried out in the USA since 1977, Leonard Rojas, Walter Mickens and Bobby Fields were convicted of killing white people. While killing a white person has consistently been shown to increase the chance of a death sentence, the status of victim has also been shown to be a possible factor in capital sentencing.

A study into the Nebraska death penalty commissioned by the state did not find any significant evidence of disparate treatment of capital defendants on the basis of race of defendant or victim, but it did find significant disparities based on the socio-economic status (SES) of the victim: "Specifically, since 1973 defendants whose victims have high socio-economic status have faced a significantly higher risk of advancing to a penalty trial and receiving a death sentence. Defendants with low SES victims have faced a substantially reduced risk of advancing to a penalty trial and of being sentenced to death".(50)

Napoleon Beazley, black, was executed in 2002 for the murder of a wealthy white businessman in Tyler, Texas, committed when Beazley was 17 years old. Citing "substantial contact with the family of the victim" (who included a federal judge), the prosecution refused to consider a plea arrangement whereby Beazley would plead guilty in return for a life sentence of 40 years without parole. The same prosecutors soon afterwards accepted just such an arrangement in the case of Todd Rasco, a white man who was sentenced to 45 years in prison, with parole eligibility after half that time, for killing a homeless black man who lived on the streets of Tyler. Todd Rasco testified that when he told his two friends that he was contemplating suicide, they had urged him to "just kill a nigger instead".

The Human Rights Committee is the body established by the ICCPR to oversee implementation of that treaty. Article 6(1) of the ICCPR prohibits the arbitrary deprivation of life. The Committee, regarding the right to liberty, has stated that "arbitrariness" should not be equated to "against the law", but that it should be interpreted more broadly, to include notions of inappropriateness, injustice and lack of predictability. Bias based on geography, race or economic status injects arbitrariness into the death penalty.

Recent events have placed Illinois at the centre of the death penalty debate in the USA (see further below). On 7 April 2003, the Chicago Tribune praised Illinois legislators for passing a series of criminal justice reforms prompted by the state’s now infamous record of wrongful convictions in capital cases. However, the newspaper noted that even with the passage of the bills, the state’s death penalty would remain "flawed". Among the flaws, the paper noted, is the "disproportionate way in which capital punishment is sought in different jurisdictions, and according to the victim’s race."(51)

Race, error, and arbitrariness

"The system has proved itself to be wildly inaccurate, unjust, unable to separate the innocent men from the guilty and, at times, a very racist system." Illinois Governor, 10 January 2003

In recent years, the discovery of more and more innocent people on death rows has caused particular public concern. Since 1973, more than 100 people – 45 per cent blacks, 42 per cent whites, and 11 per cent Latinos – have been released from death rows around the country after evidence of their innocence emerged.(52)

Two of the first such releases were of Wilbert Lee and Freddie Pitts. These two African American men were beaten by police into confessing, twice tried by all-white juries and twice sentenced to death for the murder of two white men. They were pardoned by the Florida governor in 1975, 12 years after their original convictions. The most recent additions to the growing list of the exonerated include four African Americans pardoned by Governor George Ryan of Illinois in January 2003. The governor believed that the four – Aaron Patterson, Madison Hobley, Leroy Orange, and Stanley Howard – had been tortured into confessing to crimes they did not commit. They had spent between 16 and 19 years on death row.

In January 2000, Governor Ryan had imposed a moratorium on executions in Illinois because of its "shameful" record of wrongful convictions in capital cases. Three years later this once ardently pro-death penalty governor had become one of capital punishment’s more outspoken critics and had realized that the problems of the capital justice system went beyond the risk of wrongful conviction, and into the question of arbitrariness. Before leaving office in 2003, he commuted the death sentences of all the condemned inmates in Illinois, saying: "If the system were making so many errors in determining whether someone was guilty in the first place, how fairly and accurately was it determining which guilty defendants deserved to live and which deserved to die? What effect was race having? What effect was poverty having?"(53)

A study of the death penalty in Illinois, published in 2002, concluded that: "Indicators of two extra-legal factors, the race of first-degree murder victims and geographic region, were found statistically related to the imposition of the death sentence in Illinois".(54) First-degree murders with black victims were the least likely to result in death sentences; first-degree murders with white victims were the most likely to end with such a sentence. The study noted that of the 12 executions in Illinois since 1977, 11 were for murders involving white victims. During the same period, 13 innocent men had been discovered on death row.

The pressure on police and prosecutors to solve highly publicized violent crimes can lead to mistakes, and race can play into this equation. When the majority community feel threatened by crime, they will be able to lean more heavily on the decision-makers in the justice system than can those in any minority.

The authors of the Illinois study wrote a final note: "In conclusion, the unique character of homicide in general and the death penalty in particular raises the distinct possibility of powerful political and psychological factors intruding on and interfering with the criminal justice and judicial decision process and with the goal of equity in administration of the death penalty. Hence the importance of vigilant monitoring. When a murder occurs, all who hear about it - citizens, prosecutors, jurors - feel a threat and a need to confront, to varying degrees, personal fears of death. One way to deal with the threat is to retreat to the comfort of people who are familiar to us. When the murder victim is among those communities with which we are most familiar (and race and social class are part of the victim’s social or human capital that can make them part of that familiar community) and the killer is more of an outsider (in both in social and geographic sense), the fear and outrage grow. In the past thirty years, the potential for death penalty decisions to become more political has grown like never before. One reason for this is media pressure - the media can sensationalize homicides and prioritize them in terms of outrage and threat (not all murders are given equal media coverage), and it can put pressure on decision-makers to accept those priorities."

The large majority of decision-makers in US capital cases are white.(55) In 2001, Alabama’s only black district attorney in the 1990s, said: "I would be dishonest if I said it doesn’t matter if you are African American. It matters in this state, and it matters in this country. It matters because you have individuals who are making the decision to pursue the death penalty, and they bring their own biases to that."(56) He lost his attempt at re-election.

A Broken System"

Public concern has been fuelled by evidence that errors in capital cases occur not only in relation to guilt and innocence, but also in relation to sentencing. In other words, people are being sentenced to die for crimes that do not "deserve" the death penalty, a punishment supposedly reserved in the USA for the "worst of the worst" crimes and offenders. An illustrative case is that of Johnny Joe Martinez, a young Hispanic man convicted in 1994 of killing a white man in 1993. Martinez was always remorseful for the crime, immediately turned himself into the police, and cooperated fully with them including by giving a confession. He had no history of violence or criminal record. Nevertheless, he was sentenced to death. Four of the nine judges on the conservative Texas Court of Criminal Appeals dissented against the sentence, stating that the case did not qualify for the death penalty under Texas law. The dissenters accused the majority of "contorting" the facts of the case in order to uphold the death sentence and setting a precedent which meant that "there is no longer any assurance that the death penalty will not be wantonly or freakishly imposed". In addition, the standard of Martinez’s legal representation was shocking.(57) The murder victim’s mother appealed for clemency, urging the state not to cause "another mother to lose her son to murder, needlessly", and stating that the execution of Johnny Martinez would compound the "crime against society" that began with the killing of her own son. Nevertheless, Johnny Martinez was executed in May 2002.

In June 2000, a landmark study of the US capital justice system was released. Entitled "A Broken System", it had examined death penalty cases between 1973 and 1995 and found that the rate of prejudicial error in capital cases was 68 per cent. In other words, courts found serious, reversible error in almost seven of every 10 of the thousands of death sentences that were reviewed on appeal during the 23-year study period. The study, conducted at Columbia University, found that the most common errors were inadequate legal representation and the suppression of evidence by prosecutors or police.(58) Cases continue to emerge. For example, in 2002 a federal court found that James Carpenter’s trial representation had been constitutionally inadequate. Carpenter, a black man sentenced by an all-white jury in Pennsylvania in 1984, had had to wait on death row for 18 years before he obtained relief. He had almost exhausted his appeals.

The Columbia University study expressed grave concern that the courts may not be reversing all serious errors. Amnesty International believes that this is the case, as the burden of proof for a successful claim of inadequate legal representation or prosecutorial misconduct or, indeed, of racial discrimination, is very heavy.

Robert Tarver, black, was executed in Alabama in April 2000 for the murder of a white man. He was tried in a county whose population was almost 40 per cent black, but faced a jury consisting of one black and 11 whites after the prosecutor peremptorily removed 13 of the 14 blacks during jury selection. His trial lawyer failed to raise this issue, and it was therefore "procedurally defaulted" as an appeal claim. On appeal a court found that the discrimination claim was "well-founded" and would have led to relief but for the procedural bar. Robert Tarver maintained his innocence of the murder. The state’s key witness, Andrew Richardson, Tarver’s co-defendant, faced lesser charges in return for his testimony against Tarver. The US Court of Appeals for the 11th Circuit noted that "very little evidence made Tarver a better candidate than Richardson to be found to be the actual killer". At the trial, the jury had voted for a life sentence rather than death, but the judge overrode them and imposed a death sentence. The same judge later concluded in post-conviction proceedings that Tarver’s trial lawyers – who had spent four hours preparing for the sentencing phase – had been ineffective for not presenting available mitigating evidence. The judge reversed the death sentence and ordered a life without parole prison term instead. The state appealed, and the Alabama Court of Criminal Appeals reinstated the death sentence.

African American Cornel Cooks was executed in Oklahoma in 1999 for the murder of a white woman in 1982. His lawyer had never handled a capital case before, having only finished law school two years earlier. The US Court of Appeals for the 10th Circuit was "troubled" that the lawyer had "called no witnesses, and presented no evidence on Mr Cooks’ behalf" at the sentencing phase. The Court added in its 1998 opinion, "Indeed, we are unable to glean from the record any second stage strategy developed to defend Mr Cooks against the death penalty."(59) Because of his lawyer’s failure, the jurors never heard evidence of Cornel Cooks’ abusive and deprived childhood, his mental impairment, his alcohol and substance abuse from a young age, his normally gentle nature and lack of a history of violence.(60) The 10th Circuit noted with particular concern that the trial lawyer knew Cornel Cooks was remorseful, but made no effort to present that to the jury. Nevertheless, the Court upheld his death sentence. At one of their first meetings, when the lawyer told the mentally impaired Cooks that the state was seeking the death penalty against him for the murder, Cooks did not understand what that meant. The white lawyer told him, "that’s what they do to niggers who rape white women." (61)

Abu-Ali Abdur’Rahman is scheduled to be executed in Tennessee on 18 June 2003. He was one of seven defendants who came before juries for sentencing in capital cases between 1978 and 1987 in Davidson County, a jurisdiction with a population that was 23 per cent black. All seven defendants were African American. Three of them remained on death row at the time of writing. On appeal, allegations have been raised that the prosecutor in Abu-Ali Abdur’Rahman’s case engaged in racist jury selection tactics to achieve a jury of 11 whites and one black (see further below). A judge on the Tennessee Supreme Court noted in 2002 that several allegations of prosecutorial misconduct "have surfaced to plague this case"(62), and also noted that "none of the judges who have reviewed this case… has seriously disputed that Abdur’Rahman’s trial counsel was woefully incompetent and demonstrably ineffective".(63) At the sentencing phase, the defence presented none of the abundant mitigating evidence available.(64) In 1998 a US District Judge overturned the death sentence, writing that Abdur’Rahman had been "seriously prejudiced by utterly ineffective assistance of counsel at his sentencing hearing". In Tennessee, only a unanimous jury can pass a death sentence. If the trial lawyers had presented the mitigating evidence, the judge wrote, "there is more than a reasonable probability that at least one juror would have voted for a life sentence rather than the death penalty".(65) However, in 2000 a three-judge panel of the Sixth Circuit Court of Appeals overturned the District Judge’s 1998 ruling and reinstated the death sentence. One of the three judges issued a strong dissent, citing the "constitutionally inadequate" defence Abdur’Rahman had received at the sentencing phase.

In February 2002, the second part of the Columbia University study was released. It examined some of the possible reasons behind the high error rate in capital cases.(66) It found that "heavy and indiscriminate use of the death penalty creates a high risk that mistakes will occur". "Most disturbing of all", the researchers wrote, "we find that the conditions evidently pressuring counties and states to overuse the death penalty and thus increase the risk of unreliability and error include race, politics and poorly performing law enforcement systems."

On the race question, the study made the following two findings:

1. The closer the homicide risk to whites in a state comes to equalling or surpassing the risk to blacks, the higher the error rate. Other things being equal, reversal rate is twice as high where homicides are most heavily concentrated on whites compared to blacks, than where they are the most heavily concentrated on blacks.

2. The higher proportion of African-Americans in a state – and in one analysis, the more welfare recipients in a state – the higher the rate of serious capital error. Because this effect has to do with traits of the population at large, not those of particular trial participants, it appears to be an indicator of crime fears driven by racial and economic conditions.

Seeking to explain their findings as they related to race, the Columbia researchers suggested that "when whites and other influential citizens feel threatened by homicide, they put pressure on officials to punish as many criminals as severely as possible, with the result that mistakes are made, and a lot of people are initially sentenced to death who are later found to have committed a lesser crime, or no crime at all. The more African Americans there are in a state, the more likely it is that serious mistakes will be made in death penalty trials. This could be because of fears of crime driven by racial stereotypes and economic factors. It is disturbing that race plays a role in the outcome of death penalty cases, whatever the reasons."(67)

Of the 10 states with the highest death sentencing rates, nine exceeded the national average reversal rate of 68 per cent. They include Alabama (77 per cent), Florida (75 per cent), and Oklahoma (75 per cent).

A glimpse at Oklahoma

Oklahoma ranks 27th among the 50 US states in size of population, but third in the number of executions carried out. Of the 61 executions carried out between 1990 and 9 April 2003, 47 (77 per cent) were for crimes involving white victims. The adult population of Oklahoma is 79 per cent white, seven per cent Native American and seven per cent African American. In January 2003, 53 per cent of its condemned inmates were white, six per cent were Native American and 36 per cent were black. Of the 61 people executed since 1990, 38 (62 per cent) were white, 15 (25 per cent) were black, and six (10 per cent) were Native American.

At least two of the eight African Americans executed for killing white victims were tried by all-white juries. Bobby Ross and Malcolm Johnson were executed in 1999 and 2000 respectively. In Johnson’s case, the Oklahoma County prosecutor had peremptorily dismissed all three blacks during jury selection. In 1999, the 10th Circuit Court of Appeals admitted that evidence that the prosecutor’s dismissals had been racially motivated was "troubling".

Appeal courts have frequently reprimanded Oklahoma County prosecutors for their misconduct during capital trials.(68) The Columbia University study found that the county had the fourth highest death sentencing rate in the USA and an error rate in capital cases of 75 per cent. It found that three defendants sent to death row from the county were later exonerated.

Oklahoma lies third among the US death penalty states in the number of condemned prisoners later released after evidence of their innocence emerged. Of seven such cases, three involved black defendants. At least two of these African American men, Charles Giddens and Robert Miller, were sentenced to death by all-white juries. Robert Miller was released in 1998 after being incarcerated for 10 years, seven of them on death row. In 2001, the Governor of Oklahoma granted clemency to Phillip DeWitt Smith, an African American man sentenced to death for the murder of a white man 17 years earlier, because of doubts over his guilt.

It took 18 years before James Fisher, black, was granted a new trial despite the clearly inadequate legal representation he was provided at his 1984 trial for the murder of Terry Neal. Too poor to afford his own lawyer, Fisher was appointed an attorney who had a separate career as a state Senator. In March 2002, the 10th Circuit Court of Appeals found that the lawyer had been unprepared for the trial and that his representation of Fisher had been "grossly inept". The Court noted that the case against Fisher depended on the testimony of the state’s star witness, and that either he or the defendant could have committed the murder.(69) Fisher’s lawyer had failed to review easily available exculpatory evidence – for example, Fisher had told police that the "Terry" he had met and assaulted was black, whereas Terry Neal was white (and the assault had occurred two months before the murder). At the sentencing phase of the trial, the lawyer spoke only nine words and presented no evidence. The jury was all-white after the Oklahoma County prosecutor peremptorily dismissed several African Americans during jury selection. This issue was defaulted as an appeal claim as the trial lawyer had failed to object and it had not been raised on the first ("direct") appeal.

Also too poor to afford his own lawyer, mentally impaired African American capital defendant Jervaughn Miller was appointed one for his 1998 Oklahoma trial. In 2001, the state Court of Criminal Appeals overturned the conviction and death sentence. It found that Miller had been denied adequate legal representation and it was troubled by "strong evidence in the record that something was just not right between [Miller] and his attorneys". At a hearing in 2000, the defence investigator who had worked on the case testified that the night before Miller’s relatives were due to appear at the sentencing, she had told the defence lawyer and his co-counsel that she was having difficulty preparing the relatives as witnesses. She testified that the co-counsel had replied to her that there "was no sense messing with these street niggers", to which the lead lawyer allegedly agreed. The defence investigator testified that the two lawyers, both white, called the case a "TND" which they said stood for "typical nigger deal". The lead lawyer admitted that he may have called Miller "a stupid nigger", but only in front of his co-counsel and the investigator and not in front of Miller or his family. Miller’s appeal, however, stated that Miller had overheard the lawyer say "he’s not going to take the deal, let the stupid nigger fry". The Court of Criminal Appeals said that if Miller had heard the comment, or was aware that such a comment had been made, "it would more than explain why [he] would not want to talk to the attorney".(70)

Walanzo Robinson, black, was tried by an Oklahoma County jury consisting of 11 whites and one black. The sole African American juror later alleged racism in the jury room (see below). Robinson was executed in March 2003. Paris Powell, black, remains on death row. His 1997 Oklahoma County jury also consisted of 11 whites and one black. Seven African Americans were dismissed during jury selection, including four peremptorily rejected by the prosecutor.

A glimpse at Alabama

Alabama’s African American population is 26 per cent of the state’s total. In 2001, it did not have a single elected black district attorney out of 40 such officials; four per cent of its criminal court judges were black, and there were no African American judges on either the state Supreme Court or the Court of Criminal Appeals. In contrast, 46 per cent of Alabama’s death row inmates are black. According to the Birmingham Post-Herald, 11 per cent of all murders committed by blacks in Alabama between 1996 and 2001 were of white victims, but 57 per cent of the blacks on death row were convicted of killing whites. The other 43 per cent were sentenced to death for killing other blacks, even though 89 per cent of murders of blacks are committed by other African Americans. (71)

Between 1977 and 11 April 2003, Alabama executed 26 prisoners. Twenty of them (77 per cent) were put to death for the murder of white victims. Eleven of them were African Americans convicted of killing whites. Of these 11, at least seven (64 per cent) were tried in front of all-white juries.(72)

Other African American defendants still on death row in Alabama include Earl McGahee. He was tried in front of an all-white jury after all 16 prospective African American jurors were dismissed during jury selection. Victor Stephens also remains on the state’s death row. He was one of two black men convicted in 1987 of the murder of two elderly men, one black, one white, during a robbery of a store in Hale County, a jurisdiction with a majority black population. At Victor Stephens’s trial, the prosecution used 21 of its 23 peremptory strikes to dismiss prospective African American jurors. The final jury consisted of seven whites and five blacks. The jurors voted 10-2 to sentence Victor Stephens to life rather than death. However, they were overruled by the elected trial judge, who was white. Fourteen per cent of the white prisoners on Alabama’s death row in January 2003 had been sentenced to death by a judge overriding a jury vote for life imprisonment. In the case of black prisoners, the figure was 23 per cent. Since 1981, elected Alabama judges have used override to sentence to death more than 70 defendants for whom the jury had recommended a life prison term.

Walter McMillian, black, was released from Alabama’s death row in 1993 after six years there for the murder of a white woman that he did not commit. He was convicted by an almost all-white jury whose recommendation for a life sentence was overridden by the trial judge. James Cochran, an African American accused of killing a white man, was tried three times in front of Alabama juries consisting of one black and 11 whites. One resulted in a mistrial, two resulted in death sentences. His second death sentence was overturned on the basis that the prosecutor had rejected prospective black jurors on the basis of their race.(73) At his fourth trial in 1997, in front of a jury of seven blacks and five whites, James Cochran was acquitted.

As will be noted further below, research into juror attitudes has concluded that, for example, the "distinctive perspective of black and white jurors are, no doubt, shaped by their personal experiences and lead black and white jurors to hold fundamentally different assumptions about the causes of crime and about the trustworthiness of the criminal justice process. These perspectives are manifested in black and white jurors’ different attributions of levels of dangerousness and remorsefulness to the black defendant, and in their holding different degrees of lingering doubt about his guilt."(74) In 1992, a US Supreme Court Justice said: "It is by now clear that conscious and unconscious racism can affect the way white jurors perceive minority defendants and the facts presented at their trials, perhaps determining the verdict of guilt or innocence."(75)

Freddie Lee Wright, an African American man, was executed in Alabama in March 2000 for the murder of a white couple which he maintained that he did not commit. His case raised serious questions of inadequate defence and prosecutorial withholding of evidence. His first trial had resulted in a mistrial after the mixed race jury voted 11-1 to acquit. At his second trial, which resulted in a death sentence, the jury was all-white after the prosecutor (with no objection from the defence lawyer) dismissed prospective black jurors during jury selection. Freddie Lee Wright was tried in Mobile County, whose population is now about one third African American. The Columbia University study found that Mobile County had a relatively high death sentencing rate and an error rate in capital cases of 51 per cent.

A glimpse at Florida

The Columbia researchers found that "Florida and its counties led the nation in death sentencing and the number of reversals during the study period". A professor at the University of Miami School of Law responded to the study, saying: "You’re looking at powerful political demands coming from white voters by and large to be tough on criminals, with frequent use of the death penalty in general. That translates down to the level of prosecutors – who are elected in Florida – and to police, who are pressured to push more marginal cases."(76)

Florida is one of the USA’s leading death penalty states. It has the third largest death row population and is ranked fifth in the number of executions carried out since 1977. Florida’s population at large is 14.5 per cent African American, and 78 per cent white. Its death row population is 56 per cent white and 35 per cent black. Eighty per cent of the executions carried out since 1977 were for crimes involving white victims. As in other states, studies have concluded that race place a role in capital sentencing. One study, for example, found that after taking all variables into account a death sentence was over three times more likely in a case with a white victim than one with a black victim. It also found that a black accused of killing a white woman was 15 times more likely to be sentenced to death than a black suspected of killing a black woman.(77)

Johnny Robinson is an African American man on death row in Florida for the murder of a white woman. He was tried by an all-white jury in 1986. That conviction stood, but he was granted a resentencing because the prosecutor had injected comments into his arguments that could have inflamed racial prejudice among the jurors. He was resentenced to death in 1989 by a jury of 11 whites and one black. Johnny Robinson was tried in St Johns County. Between 1976 and 1987, 33 white people and 25 black people were murdered in the county. Three people, including Johnny Robinson, received death sentences. All had been convicted of crimes against whites. Robinson’s appeal lawyers also raised evidence that in the wider Seventh Judicial Circuit, within which St Johns is one of four counties, murders with white victims were about 13 times more likely to result in a death sentence than in cases where the victim was black, and a black who kills a white is over 35 times more likely to receive a death sentence than a black who kills a black.(78) Another prisoner on death row from this Circuit is Louis Gaskin, black, tried in front of an all-white jury in 1990 for the murder of a white man.

The most recent execution in Florida was of Amos King. King, black, was executed on 26 February 2003 for the murder of a white woman. He maintained his innocence to the end. He was convicted by an all-white jury. That conviction survived the appeals process, but Amos King received a new sentencing hearing because his lawyer’s performance at the original trial had been so poor. King was re-sentenced to death by a jury of 11 whites and one black. The prosecutor had dismissed at least two prospective African American jurors during jury selection. One, a police clerk, was rejected because "she is a young black female [and] the defendant is a young black male", an apparent admission by the prosecutor that the prospective juror was struck on the basis of race.

The Columbia University study found that the 10 counties in the USA with the highest death sentencing rates had an average error rate of 71 per cent, while the 10 counties with the lowest death sentencing rates had an average error rate of 41 per cent. Amos King was tried in Pinellas County, which was one of the top 10 death sentencing counties and which the study found had an error rate of 89 per cent. The Innocence Project (see below) concluded that King’s case "remains an extremely troubling one" and that he "may well be an innocent man".

Florida leads the USA in the number of people released from death rows after evidence of their innocence emerged. Of the 107 such cases listed by the Death Penalty Information Center in March 2003, 23 (22 per cent) were from Florida. Of these 23 individuals, 14 were black, four were Latino and five were white. At least three of the exonerated African American prisoners were tried in front of all-white juries for the murder of white victims. Another, Robert Hayes, was released in 1997. This black man had been sentenced to death for the murder of a white woman who had been found clutching hair probably from her attacker. The hair was from a white person.

Some illustrative cases from around the country

Disturbing cases of possible innocence or inconsistent sentencing continue to emerge. In any individual case, it can be impossible to determine whether race played a part or not. Cases where prisoners – capital and non-capital – have been exonerated by DNA testing display recurring themes, as do the larger number of cases where convictions have been overturned without the availability of DNA evidence. The Innocence Project states: "The themes that occur over and over – misidentification, corrupt scientists and police, overzealous prosecutors, inept defense attorneys, poverty, race – must not be ignored."(79) The effect of these issues on the sentencing of capital defendants whose guilt may not be in doubt must also not be ignored.

Warren Douglas Manning, an African American man, was sentenced to death in South Carolina in 1989 for the 1988 murder of a white police officer. The conviction was overturned on appeal. In 1993 a Dillon County jury consisting of five whites and seven blacks came within two votes of acquitting him (ie 10-2 for acquittal) before a mistrial was declared. The prosecution moved for a change of venue for jury selection for the retrial. It suggested five possible counties, all of which had proportionately far few black residents than Dillon County. The judge granted the motion, and moved jury selection to Lancaster County, which had proportionately about half as many African American citizens as Dillon County. In 1995, a Lancaster County jury consisting of 10 whites and two blacks convicted Warren Manning and sentenced him to death. In 1997, the South Carolina Supreme Court ordered a new trial on the grounds that the judge had abused his discretion by granting the state’s motion to change the venue for jury selection. In 1999, after less than three hours deliberation, Warren Manning was acquitted by a Dillon County jury of six whites, five blacks, and one Native American, a racial mix that was representative of the county’s population. The state had been seeking a death sentence on the basis of circumstantial evidence.

Eugene Colvin-El, who is black, had been convicted in 1981 by an all-white Maryland jury of the murder of an elderly white woman. That conviction, on circumstantial evidence, survived the appeals process for well over a decade. Colvin-El was granted a new sentencing, which took place in 1992 in front of a jury of 11 whites and one black. In June 2000, Governor Parris Glendening commuted the death sentence shortly before it was due to be carried out because of lingering doubts about Colvin-El’s guilt. Governor Glendening subsequently imposed a moratorium on executions pending the outcome of a study he had commissioned into racial and geographic bias in the state’s death penalty system (see above).

Leroy Drayton, black, was executed in 1999 in South Carolina. He was convicted of the capital murder of Rhonda Smith, white. He maintained that her shooting had been an accident, that he had been drunk, and that she was his girlfriend. The state maintained that Smith was a stranger whom Drayton had abducted and intentionally shot. The trial lawyer failed to present evidence of Drayton’s relationship with Smith, or of his alcoholism and mental impairments, and failed to contest the state’s forensic evidence. On state appeal, Drayton’s lawyers presented numerous black witnesses to back up his claims. For example, six African American witnesses testified that Drayton had an ongoing relationship with Smith and six also testified as to the defendant’s alcoholism and intoxication on the night of Smith’s death. After the white post-conviction judge denied relief, the appeal lawyers appealed to the federal courts that his summary dismissal of the testimony of every black witness and his uncritical acceptance of the testimony of the state’s white witness, as well as of the white trial lawyer’s explanations for his conduct at the trial, betrayed the judge’s alleged racial bias against blacks. The appeal lawyers backed this up with detailed evidence of the judge’s support for racially discriminatory public policies during his life.(80) The US Court of Appeals for the Fourth Circuit rejected the appeal in January 1999 ruling "it appears to us that Drayton had a full and fair hearing in state court". Leroy Drayton was put to death 10 months later.