On December 13, North Carolina Superior Court Judge Greg Weeks reduced the sentences of three death row inmates to life without parole after finding that race played a significant role in the selection of the juries in their cases. Applying North Carolina's revised Racial Justice Act, Judge Weeks relied partially on studies showing prosecutors struck qualified African-American jurors twice as often as other potential jurors, both in Cumberland County and statewide. He also relied on evidence presented earlier at a lengthy hearing showing that potential black jurors were often dismissed for reasons such as their reservations about the death penalty, criminal background, hardships, or employment, while white jurors with similar characteristics were selected. Evidence of racial bias was also shown in statements, notes, training materials, and testimony from the prosecutors. Evidence of trainings sponsored by the North Carolina Conference of District Attorneys showed prosecutors were trained in fabricating legally acceptable ways to exclude African Americans from juries. Judge Weeks, who had reduced the death sentence of another inmate earlier in the year, stated: "The court finds no joy in these conclusions. Indeed, the court cannot overstate the gravity and somber nature of its findings. Nor can the court overstate the harm to African-American citizens and to the integrity of the justice system that results from racially discriminatory jury selection practices." Kenneth Rose, one of the lawyers representing the defendants, said, “The evidence that our capital punishment system is infected by racial bias has become too great to deny.... We will not rest until we are assured that race plays no role in North Carolina’s death penalty.”
A new book, Race, Rape, and Injustice: Documenting and Challenging Death Penalty Cases in the Civil Rights Era, recounts the fascinating story of twenty-eight law students who traveled throughout the South in the 1960s to gather data about the use of capital punishment in rape cases. They found the death penalty was used almost exclusively against black defendants accused of raping white women. The book was largely written by Barrett Foerster, one of the students, and then completed after his death by Michael Meltsner, an attorney at the NAACP Legal Defense Fund at the time of the study. The results of the investigation were used in arguments before the U.S. Supreme Court and played a role in Furman v. Georgia, the landmark case that held the death penalty unconstitutional in 1972. In the concluding chapter, Foerster wrote, "Racism does not disappear just because laws and legal procedures are changed. Capital punishment, though less popular, less widespread, and less cited as a cure for crime, is still with us. And with the exoneration of many innocent prisoners, its flaws are now even more obvious than before."
On October 17, the Kentucky Commission on Human Rights, a state agency that enforces civil rights, unanimously passed a resolution in favor of ending the death penalty. The Commission urged the Kentucky General Assembly to repeal the death penalty and Governor Steven Beshear to sign any such legislation that is brought before him. The resolution underscored the unfairness of capital punishment: “[S]tatistics confirm that the imposition of the death penalty is disproportionately imposed on minorities and the poor." Moreover, the resolution pointed to the high error rate in Kentucky capital cases: "Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.” The resolution will be given to each legislator and to the governor.
On October 2, Judge Gregory Weeks heard testimony regarding racial bias in jury selection, as three North Carolina death row inmates challenged their sentences under the state's Racial Justice Act. Prof. Barbara O’Brien of Michigan State University provided statistical evidence of racial bias in the frequent rejection of African-American potential jurors from death penalty trials in the state. According to O'Brien's study, qualified black jurors were twice as likely to be dismissed from serving in North Carolina death penalty cases as non-black jurors. Her study analyzed jury selection patterns under both the Racial Justice Act of 2009 and the more restrictive version that lawmakers passed in 2012, since there is dispute over which version of the law applies to the defendants. O'Brien found racial bias under both standards and in the cases of the individual defendants. Earlier in 2012, Judge Weeks had reduced Marcus Robinson's death sentence to life because of racial bias found in his case.
Although Connecticut abolished the death penalty for future offenses in 2012, eleven inmates remained on death row. Now an unusual trial will soon begin challenging the death sentences of seven of those inmates, not because of the legislature's repeal action, but because of evidence of racial and geographical biases in deciding those sentences. The inmates will principally rely on a study by Stanford University professor John Donohue, who reviewed nearly 4,700 murders in the state from 1973 to 2007. The study found that minority defendants whose victims were white were three times more likely to receive a death sentence than white defendants whose victims were white. Professor Donahue also found disparities along geographic lines. For example, death penalty-eligible defendants in Waterbury, Connectiuct, were sentenced to death at much higher rates than similar defendants elsewhere in the state. The study concluded, “A comprehensive assessment of this process ... reveals a troubling picture. Overall, the state's record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.”
The Michigan State Law Review recently dedicated a special issue to the late Professor David C. Baldus (pictured), well known for his groundbreaking research on racial bias in the death penalty. Distinguished authors contributed a variety of articles on issues related to capital punishment, including: “Capital Punishment and the Right to Life” by the late Hugo Adam Bedau and a special tribute to Prof. Baldus by Barbara O’Brien and Catherine Grosso. Other authors included in this special edition were Jeremy Collins, Steven Dow, Emily Hughes, Mona Lynch, Craig Haney, Issac Unah, Jennifer Adger, Christopher Weiss, SpearIt, Sheri Lynn Johnson, John Blume, Patrick Wilson, Michael Radelet, Jody Lynee Madeira, Mary Rose, Jeffrey Abramson, and Deborah Denno.
Reggie Clemons has been on Missouri's death row for 19 years for the murder of two young white women. He has already come close to execution, and one of the co-defendants in the case has been executed. Clemons' conviction was based partly on his confession to rape that he says was beaten out of him by the police. Other testimony against Clemons came from his co-defendants. Of the four men charged with the murders, three were black and one was white. The white co-defendant is already out on parole. Because of doubts that have arisen about the validity of his conviction, a special hearing will be held on September 17 to determine whether crucial errors were made in prosecuting Clemons. The special master presiding at the hearing will then present a recommendation to the Missouri Supreme Court. Clemons’ lawyers are expected to present new evidence that supports his assertion that he was physically beaten into making a confession, and that the coerced confession should not have been admitted at trial. Other issues likely to be raised include the prosecution’s failure to disclose a rape kit to defense lawyers, and that the manner in which the jury was selected was later ruled unconstitutional. (Ed Pilkington of The Guardian discusses his investigation into the case in the accompanying video.)
On August 3, the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), which includes the U.S., called for a moratorium on executions in the region and released a report reviewing key areas of concern about the death penalty. The report made a series of recommendations for member States, including:
- States should refrain from any measure that would expand the application of the death penalty or reintroduce it,
- States should take any measures necessary to ensure compliance with the strictest standards of due process in capital cases,
- States should adopt any steps required to ensure that domestic legal standards conform to the heightened level of review applicable in death penalty cases, and
- States should ensure full compliance with decisions of the Inter-American Commission and Court, and specifically with decisions concerning individual death penalty cases and precautionary and provisional measures.
A recent article in the Michigan State Law Review examined the problem of racial bias in capital cases, particularly with respect to jurors' decision making. Authors Mona Lynch and Craig Haney (pictured), both professors at the University of California, summarize past statistical studies on race and the death penalty and present new experimental research on juror decision-making in a simulated capital trial. Research participants were shown one of four simulated trial videotapes. The videos were identical except for the race of the defendant and the race of the victim. Participants who viewed the case with a black defendant were more likely to sentence the defendant to death, particularly in the scenario with a white victim. Participants' questionnaires revealed that the jurors gave more weight to mitigating evidence when the defendant was white than when he was black, and were significantly more likely to improperly use mitigating evidence in favor of a death sentence when the defendant was black. The researchers noted, "We surmised that the racial disparities that we found in sentencing outcomes were likely the result of the jurors’ inability or unwillingness to empathize with a defendant of a different race—that is, White jurors who simply could not or would not cross the 'empathic divide' to fully appreciate the life struggles of a Black capital defendant and take those struggles into account in deciding on his sentence."
In the first half of 2012, eight states carried out 23 executions. In the same period last year, there were 25 executions in 9 states. The annual number of executions has declined significantly from its peak in 1999, when 98 people were executed. There were 43 executions in 2011. Sixteen of this year's executions (70%) have been in the South, with nearly half in just two states - Texas and Mississippi. Seventy-eight percent (78%) of cases resulting in executions this year involved a murder with a white victim, even though generally whites are victims of murder less than 50% of the time in the U.S. Inmates executed so far this year spent an average of just over 18 years on death row prior to execution. According to the Bureau of Justice Statistics, the average time between sentencing and execution for those executed in 2010 was 15 years, the longest period for any single year. States have continued to alter their execution protocols due to ongoing shortages of certain execution drugs. All executions in 2012 have been by lethal injection. This year Arizona and Idaho joined Ohio and Washington in using a one-drug lethal injection procedure. All executions this year have used pentobarbital, a drug not used in executions prior to December 2010.