Tag Archive for 'death penalty'

A U-Turn on Civil Rights

Anthony Amsterdam, the lawyer and influential death penalty advocate, recently said that “a cardinal feature of the death penalty in the United States has always been its racially biased use.” In fact, its racially biased use has been the cardinal feature of the death penalty in the United States.

This is no less true in North Carolina, a state with a reputation for the kind of business-minded practical politics that should preclude the existence of a punishment system founded on racial prejudice. But if the state’s reputation rested on its death penalty system alone, it would be very different, and much dimmer. That reputation enjoyed a boost not long ago when the state legislature passed the Racial Justice Act, a measure that addressed the operation of racial bias in the death penalty process by allowing death row inmates to seek to demonstrate bias in their cases. If they could do so, they would face life imprisonment rather than lethal injection.

In April, Michael Robinson, who is black, successfully demonstrated the role of race in his death sentence and had the sentence rescinded. Judge Gregory Weeks’s decision left no room for debate: the death penalty system that produced Robinson’s death sentence was deeply corrupted by racial bias, particularly at the jury selection level. There was no credible argument to the contrary. (More on the decision here.) Essential to Weeks’s decision were statistics that demonstrated the role of racial bias in jury selection.

Continue reading ‘A U-Turn on Civil Rights’

Unavoidable: The Racial Justice Act’s First Run in North Carolina

In a decision that received nationwide coverage (New York Times coverage here) last month, Marcus Robinson, sentenced to death in 1994, was resentenced to life in prison without parole after proving that race was a significant factor in the process that resulted in his death sentence. The Racial Justice Act, the piece of legislation that made Robinson’s hearing possible, allows those on North Carolina’s death row to win relief from their death sentences if they can demonstrate the influence of race on the decision to seek or impose the death penalty in the county, the prosecutorial district, the judicial division, or of state at the time their sentence was imposed. Unlike its only counterpart in Kentucky, North Carolina’s law allows for the introduction of statistical evidence. According to Judge Gregory Weeks, Robinson’s evidence not only demonstrated that race was a significant factor in each of those concentric circles of influence, but also that prosecutors in Robinson’s case deliberately discriminated on the basis of race in jury selection for Robinson’s trial. Read the whole decision here.

In other words, Robinson demonstrated the undeniable role that race plays in the death penalty in North Carolina in just about every possible way.

Continue reading ‘Unavoidable: The Racial Justice Act’s First Run in North Carolina’

Repealing the Racial Justice Act

Two years ago, North Carolina did what just one other state in the country (Kentucky!) has done: it passed legislation intended to make sure that death sentences were handed down untainted by racial bias. The Racial Justice Act allows current death row inmates to appeal their death sentences on the basis of statistical claims of racial bias in the state. If they can demonstrate a pattern of bias, they stand to have their sentence reduced to life imprisonment.

At the heart of the act is the concept that the death penalty is a system, comprised of a network of influences, that remains potentially responsive to racial bias. Overt racial bias in law has been illegal for a while. What is at issue now, in regard to the death penalty as in regard to so many social, political, and economic issues, is whether race continues to exert an influence despite being de jure excluded from the process. The answer is an obvious yes. This study found that death sentences were handed down much more often when the victim was white. This one, too. This study demonstrates a long history of bias in North Carolina.

How can race worm its way into a legal system intended to be colorblind? Well, first, the death penalty in North Carolina is deeply rooted in slavery and it may be the only significant socio-political institution that remains relatively untouched by the vast changes that have taken place since then. When North Carolina was a slaveholding state, it kept two sets of laws on the books, one for blacks and one for whites. (Freed slaves were basically treated the same as enslaved blacks under capital law.) Blacks were not believed to be victims of crime in any real sense of the word, and thus crimes involving black “victims” were rarely considered crimes at all; if a black slave was killed, for instance, the victim was considered to be his or her master.

A lot has changed since then, obviously. But the numbers have remained chillingly steady–for most of the twentieth century, African Americans were sentenced to death in numbers vastly out of proportion to their population for crimes against whites by juries that were virtually all white. In the first half of the 20th Century, African Americans comprised nearly 80% of those executed in North Carolina. This troubling number was moderated by the new laws enacted in the 1970s, but more than half of those sent to death row in North Carolina since the mid-1970s have been African American. North Carolina’s black population hovers around 20%.

But even if we pretend that the history doesn’t matter here, race remains a presence in the courtroom. The victims of crimes that result in death sentences are overwhelmingly white. When the victims are not white, it is most often African Americans who receive death sentences for their crimes. In other words, whites are sentenced to death for killing other whites, but blacks are sentenced to death for killing both blacks and whites. The juries that hand down these death sentences are always majority white and sometimes all-white. Circumstances like these often result from apparently innocuous factors. For example, a member of a minority community may be more likely to know other members of their minority community than they would members of the majority community. And jurors can’t sit in judgment of someone they know. Thus, an effort at basic fairness in jury selection tips the scales toward potential racial bias, which is often unconscious. (For more on this issue and others, see the articles cited above.)

Oddly (or not-so-oddly), race scarcely enters into the discussion of why the act is being repealed. The lawmakers in the state’s first majority-Republican Congress since the 19th Century have complained (and their complaints are echoed by prosecutors) that the act clogs up the judicial system and inspires frivolous claims, including from white inmates unlikely to have experienced racial discrimination. That’s not the point, of course–the point is that whoever the defendant, North Carolina should not be making use of a system that operates under the influence of racial bias. Years ago, civil rights lawyers argued that segregated schools harmed both black and white students. There doesn’t seem to be much difference there, except the Civil Rights Act was not repealed in 1966.

Republican leader Paul Stam did nod at the issue, though, saying, “Justice is personal; it’s not collective.” Setting aside how deeply wrong that claim is, Stam meant (it seems) that each case should be evaluated on its merits, without regard to larger trends and, um, biases. Right on.

Capital Punishment: Books for Understanding

Today the Association of American University Presses (AAUP) published the newest Books for Understanding resource, “Capital Punishment.” The bibliography compiles more than 80 scholarly works from more than 30 AAUP member presses.

The September execution of Troy Davis reawakened the debate over the use of the death penalty in the United States and reminded publishers of the variety of illuminating scholarship published by university presses, ranging in concentration from general history to legality and ethics to the depiction of capital punishment in the arts. Here is the final guide, collecting those works for the development of “knowledge, not information”:


For a thoughtful essay on the significance of the Troy Davis execution, see this post from LCRM colleague Seth Kotch:


Troy Davis, Innocence, and the Death Penalty

The death penalty has become so infrequent in the United States that when executions take place, as they do behind closed doors in the quiet hours of the morning, they attract a great deal of attention. This is particularly true when race is in play, as it often is, and as it was in the two executions that took place on September 22, those of Troy Davis and Russell Brewer.

Brewer’s execution received short shrift in what felt like a rare reversal of attention. His crime, the horrific torture and murder of James Byrd, received a vast amount of press coverage back in 1998. Byrd was an African American man who was beaten and chained to the back of a truck by Brewer, who was white, and two other white men. The men dragged Byrd down a backwoods country road, leaving what was left of his body unrecognizable. (Ross Byrd, son of the victim, came out in opposition to the execution, saying that life in prison was punishment enough.) It was a hate crime that equaled or exceeded the bloody excesses of the Jim Crow era, and resulted in Texas Governor and current candidate for the Republican presidential nomination Rick Perry signing into law the James Byrd Jr. Hate Crimes Prevention Act, creating new punishments for hate crimes and becoming the foundation for similar federal legislation.

Troy Davis

If Byrd’s death left a legacy that at least seeks to protect people from hate crimes, Troy Davis lived out a much more troubling legacy: the long shadow of Jim Crow. Black men in the American South face execution in numbers far out of proportion to their population, most often for crimes against whites. This isn’t just true in the South, of course, but as Christopher Hitchens wrote recently in Lapham’s Quarterly, “the business of execution is carried on more enthusiastically and more systematically in the states of the former Confederacy.” That enthusiasm was on display at the recent GOP debate, when the crowd cheered the 234 executions that have taken place in Texas under Rick Perry.

That enthusiasm and a snarl of legal technicalities weathered the pull of a steadily eroding case against Davis. In 1991, Davis was sentenced to death for the murder of an off-duty police officer. The testimony of the witnesses called varied wildly as to the description of the shooter, who according to their accounts wore a white shirt or a yellow one, had facial hair or did not, was 20 or 30 years old, stood 6 foot 2 or 5 foot 9, and weighed 130 pounds or 180. And those are just a handful of the inconsistencies that emerged in witness testimony. Seven of nine witnesses later recanted. There was no physical evidence and the safety valves intended to keep innocents from death failed to function.

Yet the power of doubt in Davis’s case was brushed away when the Supreme Court ruled that in his appeal, Davis had to provide compelling evidence of his innocence, meaning that in order to remove himself from death row (and, by the way, spend the rest of his life in prison) Davis would need to meet a substantially higher standard than prosecutors did when they secured a conviction. In dissenting on the Court’s decision to grant Davis an opportunity to challenge his conviction, Justice Antonin Scalia infamously dismissed the idea that so-called actual innocence gave an appelant legal standing under the Constitution.

This renewed focus on witness reliability now joins with a renewed focus on innocence, which followed a renewed focus on the whether lethal injection hurts (if it does, then should our conscience?), which followed concerns about bias, which followed concerns about–well, you get the picture. But rather than these various issues coalescing into a single bloc of opposition against the death penalty, they seem to emerge piecemeal as one, then another, convicted criminal is executed. The concern aroused by the previous execution subsides and is replaced by a new concern. There is, in short, no momentum.

What does this mean? Most likely that the number of death sentences and executions in the United States will continue to decline. But also, that the small number of states and counties that actually execute people will dwindle to some lower limit and stay there. We know that counties that have executed one person are more likely to execute another–this is what one researcher calls “the power law of death.” The power law of death means that counties that have executed before are more likely to continue to do so, and that counties that haven’t won’t start. The numbers bear this out. Harris County, Texas, is the only county in the country that has executed more than 50 people since 1977. Its 116 executions is more than triple as many as occurred in the runner-up, Dallas County. Just 14 counties have executed 10 or more people, all of them in Texas, Oklahoma, and Missouri. If the main predictor of execution is execution, the death penalty can hardly be more arbitrary.

Is execution just a bad habit? Yes and no. We know that racial bias plays a huge role in the death penalty process, from indictment to execution, and that no amount of technical adjustments, such as those made following Furman v. Georgia, can eliminate it. We know that those with diminished mental capacity are more likely to be executed. We know that legal defense for the poor is often inadequate. And finding legitimate solutions to any of these problems, which would be a difficult task with a genuine desire to fix the problem, has become impossible since the death penalty assumed its position as a purity test for American politicians.

With little variation, supporters of an increasingly doctrinaire and punitive Republican Party supports, even relishes (the cheers at the debate), the prospect of execution. Those cheers didn’t signal bloodlust. Instead, they sprang from the kind of brutish defiance and willful ignorance that is a defining feature of modern-day conservatism (see, too, evolution, global warming, taxation). To be a true fan of the Republican team means savoring your opponents’ defeats, even if those defeats come in the form of men and women executed. Democrats, gambling as they often do that they cannot anger liberals so much that they’ll lose their support (they’re wrong–Ralph Nader, anyone?) and committed to bending over backwards to appease so-called Independents and moderates, trot alongside the wagon and sometimes partake in cowardly acts of support, the most notorious occurring in 1992, when candidate Clinton’s left the trail for Arkansas to oversee the execution of Ricky Ray Rector.


The death penalty’s efficacy as political shorthand exceeds its efficacy as punishment. Occasionally, grown-ups have said as much and abandoned it, most recently Pat Quinn in Illinois. But as long as Americans view the use of the death penalty as a form of political expression and as long as we cling to the belief that it offers closure to victims (a recently-invented concept that has gained traction without much proof of its existence); as long as race, poverty, and mental disability relegate its use to the least-valued among us; as long as we are satisfied with patches and safety valves, it will continue in one form or another. The rickety machinery of death, to use Justice Henry Blackmun’s term, will keep sputtering and lurching along, carrying with it men like Troy Davis and carrying with it, too, our national conscience. Our conscience deserves better stewards than the handful of politicians who insist on doing things as they’ve always been done.

The Death Penalty and Civil Rights Core Principles

E.J. Dionne of the Washington Post opines today on the execution of Humberto Leal, the Mexican national sentenced to die for rape in Texas, and who was executed despite protests from the Mexican government and President Obama. It’s not that Leal was innocent–he appears to have confessed before his death. And we should note, as all those who oppose the death penalty appear bound to do before writing in opposition to its use, that Leal’s crime was horrific. But his execution, which Governor Rick Perry (who has flirted with secessionist rhetoric) used as a way to send a message about the Lone Star State’s independence streak, speaks not just to the concerns many Americans feel about the death penalty (“Are we doing it right?”), but also to their mounting concerns about the innocence of those who die in our nation’s death chambers. That concern gets to a more pressing question for many: “What if it was me?”

The me in in that question is innocent. It is easy to overlook procedural errors if they’re being made in the trials of killers and rapists, who scarcely deserve to be draped in procedural niceties on their way to the death chamber. But what if the person represented by an incompetent lawyer, or coerced into giving a false confession, or below the intelligence threshold to be deemed responsible for his or her crimes, or convicted by the untrue testimony of someone seeking gain is in fact innocent? The apparent rash of exonerations of late has brought the question to the forefront of many Americans’ minds, and has changed minds, too. So argues the University of North Carolina’s Frank Baumgartner, whose The Decline of the Death Penalty and the Discovery of Innocence positions concerns about executing the innocent as the issue that may ultimately drive the death penalty out of use in the United States. It is a shame to think of the procedural errors that take place during the trials of monsters; but it’s genuinely scary to think of them taking place in your trial.

So what does this have to do with civil rights? A lot, if we’re talking about the many rights of Americans (and even of foreign nationals) who enter the justice system in this country. But more so, the issue is suggestive of American’s pivot on civil rights for African Americans in the 1950s and 1960s. The shocking change in public opinion that has taken place since it was normal to prevent blacks and whites from marrying one another had much to do with the important legal battles fought and won by advocacy organizations, with the sense of shame felt by so-called moderates when they saw their communities torn apart by hatred and bloodshed, with intense political pressure nationally and internationally. But might it not also have had something to do with the sense among many Americans, North and South, that those little black girls in Birmingham, or Little Rock, or Boston were not much different from their own children? And that when discrimination is something that happens as a matter of course, or far away, to someone you don’t know or who doesn’t deserve it, it is easy to ignore? But less so when you or someone you know is its target.

The Death Penalty

From WUNC’s The State of Things, Appalachian State University Professor Matthew Robinson on the costs and inequities of the death penalty, which is today as visible as it’s ever been as a pressing civil and human rights issue. Professor Robinson has aggregated a number of death penalty studies into this damning report.

The Execution of Willie McGee

On Friday, NPR will air a 30-minute documentary about Willie McGee, a black man executed for the rape of a white woman in Mississippi’s traveling electric chair in 1951. As McGee lost his appeals, his case became a cause celebre, with Bela Abzug representing him in an appeal and William Faulkner pleading for clemency.

The New York Times has the story, which includes disturbing audio from the execution, which took place outside the courtroom where McGee was convicted. Whoops and cheers from the gathered crowd are audible.

Crime and punishment is an increasingly pressing issue of civil rights. But its importance was clear long before today, and the case of Willie McGee sparked protests that anticipated the sit-ins and other protests that would spread throughout the country in the 1950s and 1960s. Protesters chained themselves to the columns at the Lincoln Memorial as McGee awaited execution.

Here in North Carolina, lawmakers occasionally proposed using a portable electric chair like that in Mississippi.

History in Action: Thomas and Meeks Griffin Exonerated Nearly 100 Years after Executions

Paul Finkelman, of the Albany School of Law, with Henry Lewis Gates, Jr., have done research that has resulted in the posthumous pardon of two black men, brothers, electrocuted for murder in South Carolina in 1913. The execution took place despite substantial white support for the two men, the kind of support which might have saved their lives (and often did save the lives of capital criminals in the Carolinas), were it not for scandalous details in the life of the victim, a Civil War veteran, local authorities wished to conceal.

The route to exoneration began with Gates’s revelation to talk radio host Tom Joyner that the executed men were Joyner’s great uncles. CNN has the story.

UPDATE. News coverage is exploding here and around the world:

The Independent (Dublin)
NBC Nightly News (video)
The Telegraph (UK)

The Netflix Prize and Collaboration

A while back, Netflix announced a $1 million award for improving the DVD-by-mail service’s recommendation service, which suggests  films to its users based on their ratings of films they’ve seen. The service provides enough of a challenge to Netflix users, who have to make hard choices about their ratings. Do I give The Curious Case of Benjamin Button one star? What about Duplicity? Both terrible movies, but generally the kinds of movies I like created by filmmakers and actors I like. I wouldn’t want to miss out on Children of Men because Netflix thinks I don’t like Clive Owen, or The Game, because it thinks I don’t like David Fincher.

I likely just revealed how little I know about Netflix’s rating system, but may also have illustrated the kind of foolishness lots of smart people are dealing with as they seek to make the recommendation system work. And if these smart people could improve the system by 10%, a $1 million prize would be theirs. It seems they have.

What’s the point to the LCRM community? The successful efforts of an international team speak powerfully to the possibilities of crowdsourcing, sharing expertise and data to answer formerly unanswerable questions. The Times article linked above suggests applications in the sciences, but crowdsourcing has a role in the humanities, too. We do it all the time, such as when we send questions to a listserv. One result and possibility for the future is the Espy File, the massive collection of data on the history of the death penalty that was built mainly by one man, M. Watt Espy (who recently passed away), but has since been taken on by other historians. The Espy File reveals both the power and the potential for crowdsourcing history data–what if everyone working in the area contributed what they learned about, say, the races of victims in these crimes. A remarkable history, one with real relevance to today’s civil rights-inflected discussion of the death penalty, could emerge that would go much deeper than names and dates.

But, as the article suggests, crowdsourcing has its pitfalls, too. After all, most of the teams competing for the prize did not win.