May 18, 2016

Private: Death Penalty Infected by Racism

criminal justice reform, Jr., Racial justice, Ronald S. Sullivan, Ronald S. Sullivan Jr.

by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School            

This week the United States Supreme Court will consider the case of Lamondre Tucker, an African-American man who was sentenced to death in 2011―under the banner of the Confederate flag. Tucker was convicted in Caddo Parish, Louisiana, a county that is plagued by racially biased jury selection. One recent study found that African-Americans have been excluded from juries in Caddo Parish at a rate that is three times higher than whites, a practice so insidious that it has earned the nickname “blackstriking.”

An amicus brief filed by the Charles Hamilton Houston Institute for Race and Justice in Tucker v. Louisiana notes, “Of the twenty death sentences imposed in the modern era by Caddo Parish juries, fifteen were imposed on Black defendants. Of those fifteen, ten were charged with the murder of a white victim. Conversely, no white defendant has ever been sentenced to death in Caddo Parish for killing a Black victim. Taken at face value, these numbers suggest that the badges of the Confederacy adorning the courthouse entrance in Caddo Parish signify more than stale remnants of a bygone era.”

Unfortunately, Tucker’s case is not an isolated incident. Just last month, Kenneth Fults was executed by the state of Georgia despite being represented by a lawyer known for using racial slurs. Fults, an African-American man, was accused of killing a young white woman. After the trial, one of the jurors reportedly explained, "that n***r got just what should have happened . . . I knew I would vote for the death penalty because that’s what that n***r deserved."

Duane Buck’s case was equally contaminated by racial bias. Buck, an African-American man, was sentenced to death for a crime that occurred 20 years ago after a defense expert testified that Buck’s race was a relevant predictor of his future dangerousness. The prosecutor subsequently asserted that "the race factor, black, increases the future dangerousness . . ." The Texas jury sentenced Mr. Buck to death based upon the finding that he was likely to be a danger in the future. Mr. Buck has asked the U.S. Supreme Court to review his case.

In South Carolina, Johnny Bennett had his death sentence reversed by U.S. District Judge Mark Gergel because the prosecutor, Donnie Myers, called Bennett, an African-American man, “King Kong,” a “beast of burden,” and other racist names during his trial. Myers also highlighted the fact that Bennett had a sexual relationship with a “blonde-headed lady” in order to fan the flames of racial prejudice. The state attorney general has, not surprisingly, announced that he is appealing Judge Gergel’s decision.

Even when offered a chance to correct injustices of the not-so-distant past, many prosecutors cling to racially tainted verdicts. These cases are not relics of the past, they are evidence that racial bias continues to infect the entire capital punishment system.

In McCleskey v. Kemp, in an opinion that defense attorney Tony Amsterdam called the Dred Scott of our time, the Court declined to address the role that race played in the administration of the death penalty out of what Justice Brennan described as a fear of "too much justice." The case, argued in 1986, found that because we could not eliminate race discrimination from the criminal justice system at large, the Eighth Amendment could not require that it be completely eliminated from the death penalty system.

And so, the Court has chosen to triage a small handful of cases infected by racial bias, granting relief in some, leaving the vast majority of defendants whose cases are infected by the disease to die at the hands of the executioner.

The Fults, Buck, Bennett, and Tucker cases make clear that the operation of the death penalty is inexorably connected to race, and that the use of capital punishment is increasingly isolated to a small number of outlier counties that are plagued by overzealous prosecutors, ineffective defense lawyers, and entrenched racial bias.

But the 30 years since McCleskey have shown us that triage by the Courts is not enough. A system that treats only one patient at a time while dozens of other men and women ‒ whose cases are similarly infected ‒ are left to die in the meantime, is fundamentally flawed and unjust. It is time to recognize that allowing racism to infect the capital punishment system in America undermines our confidence in the entire justice system.