by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp
, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”
Upholding the death penalty despite its racial disparities does not make them disappear. Since 1976, when the Court lifted its moratorium on the death penalty, 270 black defendants have been executed for killing white victims; 20 white defendants have been executed for killing black victims. Today, minorities make up over half of the death row population in the nation. Forty-two percent of them, or 1,290 inmates, including Warner, are black.
Of course, it is impossible to say whether race, consciously or subconsciously, infected the death sentences of either Lockett or Warner. They were convicted of horrible crimes, and unlike the naked racism of an NBA owner or a cattle rancher recently caught on tape, there is no secret recording to expose any hidden discrimination in the capital process that produced their death sentences. But collectively, the glaring breakdown of executions by race
—like the death row mug shots of Lockett and Warner—stares us in the face. As a nation, are we now prepared to look back, or will we continue to look away?