The Uneven Scales of Capital Justice

In 1972, the U.S. Supreme Court declared the death penalty unconstitutional. The Court found that because the capital-punishment laws gave sentencers virtually unbridled discretion in deciding whether or not to impose a death sentence, “The death sentence [was] disproportionately carried out on the poor, the Negro, and the members of unpopular groups.”

In 1976, the Court reviewed the revised death-penalty statutes -- which are in place today -- and concluded that they sufficiently restricted sentencer discretion such that race and class would no longer play a pivotal role in the life-or-death calculus. In the 28 years since the reinstatement of the death penalty, however, it has become apparent that the Court was wrong. Race and class remain critical factors in the decision of who lives and who dies.

Both race and poverty corrupt the administration of the death penalty. Race severely disadvantages the black jurors, black defendants, and black victims within the capital-punishment system. Black defendants are more likely to be executed than white defendants. Those who commit crimes against black victims are punished less severely than those who commit crimes against white victims. And black potential jurors are often denied the opportunity to serve on death-penalty juries. As far as the death penalty is concerned, therefore, blackness is a proxy for worthlessness.

Poverty is a similar -- and often additional -- handicap. Because the lawyers provided to indigent defendants charged with capital crimes are so uniformly undertrained and undercompensated, the 90 percent of capitally charged defendants who lack the resources to retain a private attorney are virtually guaranteed a death sentence. Together, therefore, race and class function as an elephant on death's side of the sentencing scale.

When and how does race infect the death-penalty system? The fundamental lesson of the Supreme Court's 1972 decision to strike down the death penalty is that discretion, if left unchecked, will be exercised in such a manner that arbitrary and irrelevant factors like race will enter into the sentencing decision. That conclusion remains true today. The points at which discretion is exercised are the gateways through which racial bias continues to enter into the sentencing calculation.

Who has the most unfettered discretion? Chief prosecutors, who are overwhelmingly white, make some of the most critical decisions vis-à-vis the death penalty. Because their decisions go unchecked, prosecutors have arguably the greatest unilateral influence over the administration of the death penalty.

Do prosecutors exercise their discretion along racial lines? Unquestionably yes. Prosecutors bring more defendants of color into the death-penalty system than they do white defendants. For example, a 2000 study by the U.S. Department of Justice reveals that between 1995 and 2000, 72 percent of the cases that the attorney general approved for death-penalty prosecution involved defendants of color. During that time, statistics show that there were relatively equal numbers of black and white homicide perpetrators.

Prosecutors also give more white defendants than black defendants the chance to avoid a death sentence. Specifically, prosecutors enter into plea bargains -- deals that allow capitally charged defendants to receive a lesser sentence in exchange for an admission of guilt -- with white defendants far more often than they do with defendants of color.
Indeed, the Justice Department study found that white defendants were almost twice as likely as black defendants to enter into such plea agreements.

Further, prosecutors assess cases differently depending upon the race of the victim. Thus, the Department of Justice found that between 1995 and 2000, U.S. attorneys were almost twice as likely to seek the death penalty for black defendants accused of killing nonblack victims than for black defendants accused of killing black victims.

And, finally, prosecutors regularly exclude black potential jurors from service in capital cases. For example, a 2003 study of jury selection in Philadelphia capital cases, conducted by the Pennsylvania Supreme Court Commission on Race and Gender Bias in the Justice System, revealed that prosecutors used peremptory challenges—the power to exclude potential jurors for any reason aside from race or gender—to remove 51 percent of black potential jurors while excluding only 26 percent of nonblack potential jurors.
Such bias has a long history: From 1963 to 1976, one Texas prosecutor's office instructed its lawyers to exclude all people of color from service on juries by distributing a memo containing the following language: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” This extraordinary exercise of discretion harms black capital defendants because statistics reveal that juries containing few or no blacks are more likely to sentence black defendants to death.

Such blatant prosecutorial discretion has significantly contributed to the creation of a system that is visibly permeated with racial bias. Black defendants are sentenced to death and executed at disproportionate rates. For example, in Philadelphia, African American defendants are approximately four times more likely to be sentenced to death than similarly situated white defendants. And nationwide, crimes against white victims are punished more severely than crimes against black victims. Thus, although 46.7 percent of all homicide victims are black, only 13.9 percent of the victims of executed defendants are black. In some jurisdictions, all of the defendants on death row have white victims; in other jurisdictions, having a white victim exponentially increases a criminal defendant's likelihood of being sentenced to death. It is beyond dispute, therefore, that race remains a central factor in the administration of the death penalty.

Socioeconomic status also plays an inappropriate yet extremely influential role in the determination of who receives the death penalty. The vast majority of the people who are sentenced to death and executed in the United States come from a background of poverty. Indeed, as noted by the Supreme Court in 1972, “One searches our chronicles in vain for the execution of any member of the affluent strata of this society. The Leopolds and Loebs are given prison terms, not sentenced to death.”

The primary reason for this economic disparity is that the poor are systematically denied access to well-trained and adequately funded lawyers. “Capital defense is now a highly specialized field requiring practitioners to successfully negotiate minefield upon minefield of exacting and arcane death-penalty law,” according to the Pennsylvania commission. “Any misstep along the way can literally mean death for the client.” It is therefore critical that lawyers appointed to represent poor defendants facing death possess the requisite compensation, training, and skill to mount a meaningful challenge to the government's case.

Unfortunately, few if any of the defendants on death row are provided with lawyers possessing the requisite skills and resources. Instead, poorly trained and underfunded court-appointed lawyers who provide abysmal legal assistance typically represent those death-sentenced prisoners. Tales of the pathetic lawyering provided by appointed counsel to their capitally charged clients are legion. Perhaps the most famous example is that of Calvin Burdine, whose court-appointed lawyer slept through significant portions of his trial. Another example is the case of Vinson Washington, whose court-appointed lawyer suggested to the defense psychiatrist that Vinson “epitomized the banality of evil.”
Death-sentenced defendants are so frequently provided with poor representation that, in 2001, Supreme Court Justice Ruth Bader Ginsburg commented that she had never seen a death-penalty defendant come before the Supreme Court in search of an eve-of-execution stay “in which the defendant was well-represented at trial.”

One reason that appointed counsel perform so poorly is that they are grossly undercompensated. In some cases, capital-defense attorneys have been paid as little as $5 an hour. Not surprisingly, these paltry rates of compensation have yielded an equally paltry quality of representation. As was succinctly noted by the 5th U.S. Circuit Court of Appeals in its review of the quality of representation provided by a court-appointed lawyer to a capitally charged defendant in Texas: “The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.”

Lawyers appointed to handle capital trials also often lack the expertise necessary to appropriately defend capitally charged defendants. Many states fail to provide appointed counsel with the training necessary to handle these complex cases, and many fail to impose minimum qualifications for lawyers handling capital cases. As a result, capital defendants have been represented by lawyers with absolutely no experience in criminal, much less capital, law. Although the American Bar Association has promulgated standards for the representation of indigent defendants charged with capital offenses, and although those guidelines have been endorsed by the Supreme Court, no death-penalty jurisdiction has implemented a system that meets these requirements. Thus, lawyers without meaningful training or expertise in the area of capital punishment continue to represent defendants facing death.

Because race and class continue to play a powerful role in the administration of the death penalty, it is clear that the current system is as broken today as it was in 1972. As the Supreme Court explained at the time, “A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who made less than $3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice has no more sanctity than a law which in terms provides the same.”

Because the current death-penalty law, while neutral on its face, is applied in such a manner that people of color and the poor are disproportionately condemned to die, the law is legally and morally invalid.