To look closely at many of the mechanisms in American society is to observe the contradiction between constitutional equality and equality in practice. Several of these contradictions exist in the realm of racial equality. For example, Black s often get dealt an unfair hand in the criminal justice system. In The Real War on Crime, Steven Donziger explains,

There are so many more African-Americans than whites in our prisons that the difference cannot be explained by higher crime among African- Americans - racial discrimination is also at work, and it penalizes African- Americans at almost every juncture in the criminal justice system.¹

This paper focuses in on one of those "junctures" - the death penalty. The racial disparities that Donziger finds in the prisons can also be found in death row. To be exact, African-Americans are 12% of the US population, but they make up 40% of the death row population.² I, like Donziger, believe something more is at work; and in the tradition of Ture and Hamilton, I believe that this something works in covert ways. It would almost be better if we could place the blame on blatant racial discrimination. But the death penalty does not serve the explicit purpose of oppressing Blacks. Racism persists, but it has taken on more implicit, more subtle, and arguably more harmful forms. The death penalty is a timely lens through which to observe the covert racism that operates in institutional settings. This topic can be overwhelming, and this paper is in no way comprehensive. Rather, it is an opportunity to string together some soci ological and legal concepts with personal analysis in the desire to demonstrate that the death penalty and the institutions surrounding it disproportionately target Black murderers and Black suspected murderers.

Why the Death Penalty?

While the topic can be overwhelming and complex, it is important to study the racist institution of the death penalty because execution is the ultimate expression of which individuals are valued by our society and which are considered dispensable. What the US expresses through its executions carries some racist undertones when we look at the races of the persons being executed, but it takes on a clearly racial direction when we consider the race of the original murder victim. For example, "the most comprehensive study of the death penalty found that killers of whites were eleven times more likely to be condemned to death than killers of African- Americans."³ On the flip side, "only 31 of the over 18,000 executions in this country's history involved a white person being punished for killing a Black person."⁴ In capital punishment, we find the modernday counterpart to lynching. Of course, lynching often meant sporadic acts of individual racism. Selective killing today is an official, bureaucratized act of the state and therefore an official statement of what our government stands for. And what the government stands for is the most complete disempowerment possible - death - for a large number of Black individuals.

Devastation in Black Communities

While there is more going on than just a higher crime rate in Black communities, it is important to study the violence committed and suffered by ghettoized Blacks.

Government leaders use these crime rates to justify the high numbers of Blacks on death row. But I argue that years of racist decisions upheld by the government set the stage for what we are now observing in America's ghettos; the consequences of these decisions are pouring over into the criminal justice system. William Julius Wilson calls this situation "social dislocation," and he establishes that this was not something Black communities chose for themselves. Wilson relates high crime rates among Blacks to social isolation defined as the lack of mainstream role models coupled with frustration of joblessness and poverty. I think in the case of such serious crimes as homicide, we should also consider the lack of social service agencies that could detect a violence-prone mentality early on.

Most people on death row suffered violence themselves, usually as children. Furthermore, many live and die with undiagnosed mental disabilities. According to Phoebe Ellsworth, "several retarded people have been executed and many more are awaiting execution."⁵

The dismantling of preventive social agencies in many Black communities can only be exacerbating the problem. William Chambliss points out that the money previously invested in these social services is now being transferred to the criminal justice system wherein "racism and systematic oppression of minority groups, especially young African-American men, has been legitimized and institutionalized."⁶ Chambliss identifies education as one of the victims of this monetary dislocation: "criminal justice expenditures have, for the first time in US history, received more public funds from state, county, and municipal governments than has education."⁷ This withholding of educational opportunities adds to the social isolation, joblessness, and resulting frustration. Not to mention, it is another one of our government's value-laden statements. Charles Hamilton argues that "poor economic conditions contribute to an environment spawning crime and blatant disregard for the law,"⁸ Rather than responding to the origins, the government has erected the institution of capital punishment to respond to the end product of these conditions. In the words of Eugene Debs, "No social system is so stupid as that which sows the seeds of vice and crime and later becomes purple with indignation and horror when the crop is ripe for picking."

Race and Class

One cannot talk about the racial disparities inherent in the death penalty without also addressing the class bias. However, every study I have come across has treated the two quite exclusively. So I am at a bit of a loss on how to attack this problem. The fact is that you can still find many whites on death row, but as Justice William O'Douglas put it, "one searches our chronicles in vain for the execution of any member of the affluent strata in this society." Perhaps the justice system needs to change its motto from "justice must be served" to "the lawyer must be paid and paid well." Good representation requires good money, and court appointed attorneys assigned to death penalty cases receive very little in the way of time and resources. In fact, the pay is often so low that it acts as a disincentive for preparing an adequate defense. On top of the lack of commitment, many of these attorneys lack the expertise to defend their clients against accusations of murder.

As a result:

a large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received."⁹

Most Blacks today suffer from both abject poverty and a racially biased criminal justice system that is not sympathetic to poverty. I think this gets at the root of the problem and is at least a good starting point. The fact stands - a racist criminal process does not affect all Blacks equally; it is largely the problem of the Black underclass. This becomes most visible around cases (such as capital cases) where informed legal counsel is imperative to building a defense. Without an adequate attorney, the jury cannot make what Stephen B. Bright calls "a reasoned moral response to the defendant's background, character, and crime."¹⁰ Thus a poor Black defendant's crime will be judged totally apart from the context - namely the abject environment and social conditions - in which it took place.

This appears to be a breach of Gideon v. Wainwright, but the government sees no conflict.

According to Fifth Circuit Court Judge Alvin Rubin:

The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel Consequently, accused persons who are represented by 'not legally ineffective' lawyers may be condemned to die when the same accused, if represented by effective counsel, would receive at least the clemency of a life sentence.¹¹

While this statement is initially appalling, it is an understatement of the judiciary's standpoint when we compare it to the O.J. trial where financial privilege meant the difference not between death and clemency but between death and acquittal. The O.J. case best exemplifies just how much of a role class plays in the government's decision to kill.

There's Something More At Work

Chambliss points out that increases in incarceration have not been accompanied by increases in crime. Donziger makes the same observation paying specific attention to African-Americans:

the proportion of overall crime committed by African-Americans has not increased for several years. Yet since 1980, the African-American prison population has increased dramatically while the white prison population has increased far less. Something more is at work than changes in crime patterns.¹²

Many states, including California under Wilson and Texas under Bush, have recently increased their number and rate of executions as part of their tough-on-crime policies. In the end, tough on crime turns out to be tough on minorities who are increasingly being made an example of.

The expansion of the criminal justice system has a much more averse effect on the ghetto underclass who see a large fraction of urban violence and a high degree of police vigilance and brutality. According to Chambliss, "Although laws are in theory applied to all violators, they are in fact applied in a discriminatory fashion against minorities." He explicitly identifies an "institutionalized racism resulting from the expansion of the crime control industry."¹³ While Chambliss focuses on Black criminals in general, I think it is fair to say that the same applies to Black underclass murderers. "In prison African-Americans are vastly overrepresented in the most severe conditions of incarceration."¹⁴

Death row is undoubtedly among the most severe. An example of this institutionalized disempowerment is the aforementioned lack of a qualified attorney. This basic civil right serves as a protection for all the other rights of the criminally accused, and any convict on death row needs regular trained counsel for the appeals process. Another stolen liberty is the right to vote. Donziger defines this as "one of the least recognized consequence of crime policy."¹⁵ The denial of the vote is worth mentioning because in the arena of crime legislation, the group most directly affected by policy gets silenced. The right to vote is considered a venue for political power and was fought for by Black Americans to assert their equal representation in the US. Thus, in today's criminal policy, we see not only a modern day counterpart to lynching but also to Black disenfranchisement.

I refer so much to crime in general because it can be linked to the death penalty through what Donziger calls "the cumulative effect of racial discrimination on the criminal justice process:"

If there is racial discrimination when a person is arrested it can result in a harsher assessment of the offense. This, in turn, can result in a more severe charge and a more severe sentence and thus have an extended impact throughout the process.¹⁶

A death sentence is the most severe sentence, so Donziger's assertion suggests that African-American murderers are more likely to receive the death penalty after already being placed in a pool of African-Americans whose charges were magnified beyond the charges of suspected white murderers. According to Donziger, "an upgraded case leads to more serious charges, a more energized prosecution, and higher sentences."¹⁷ A second reason that discrimination in crime relates to discrimination in the death penalty is that discrimination in crime leaves many African-Americans with previous criminal records which work against Blacks accused of murder.

The Killing of Innocent Blacks

We already know of several cases of innocent people who were given the death sentence (50 since 1973).¹⁸ It is not difficult to put a racial tint on this fact. Leon Higgenbothem's concept of a "precept of inferiority" that motivates "false accusations against Blacks" forces us to ask how many more innocent Blacks than innocent whites are condemned to die simply because it is easier to believe that "a black man did it."¹⁹ In addition, Blacks are much more likely to undergo unfounded arrests than whites: "some police officers believe that race provides a legitimate and significant basis to suspect a person of criminal behavior."²⁰ This suggests that the "precept of inferiority" extends beyond the general public to include the people who make up the criminal justice system.

The implications are serious for the future of the death penalty. But the community at large and minority communities in particular have a right to know, especially given the current momentum toward limiting the inmate's capacity to prove his innocence.

Clinton's 1996 "anti-terrorism" bill, which limits prisoners to a single appeal within six months of conviction, is one example.

Comparing the Black and White Experiences

To demonstrate that the Black experience with the death penalty is proportionally worse than the white experience, we have to prove comparative excessiveness. That is, we have to ask whether white murderers get lesser sentences than Black murderers under similar circumstances. The same community standards must be used on defendants with similar cases. Not using even-handedness is a violation of the 8th Amendment. The Supreme Court, for this reason, recommends that states institute a system of proportional review in their death-sentencing statues to prevent comparative excessiveness.²¹

However, David C. Baldus found that many states which uphold capital sentencing lack "adequate checks on arbitrariness."²² Donziger reveals comparative excessiveness for Blacks at all levels of the criminal justice system. He points out that for every white arrest, there are three African-American arrests, yet for every white prisoner, there are 7 African-American prisoners. He links this directly to discrimination in the sentencing process.²³ We have already seen that accused Black killers lack attorneys who can adequately portray their circumstances; so even in comparatively similar cases, it is likely for a Black killer to receive a harsher sentence than a white killer. Add to this the cumulative effects of racial discrimination that Donziger talks about and the unconscious precept of inferiority, and I think we can safely say that comparative excessiveness exists at the level of the death penalty. The white experience with the death penalty is in no sense easy. Impoverished whites have many of the same problems around incapable legal representation. They are probably more unpopular with their communities seeing as the white community is overwhelmingly in favor of capital punishment. Whites on death row oftentimes suffer from the same mental disabilities and past traumas as Blacks. But at all levels of the justice system - starting simply with the neighborhood the accused lives in , to the charging and sentencing process, right up through the last appeal - being Black may very well count against a suspect. I waited to compare the Black and white experiences at this point in my paper because everything thus far has been an attempt to show that the problems confronting Black murderers are multiplicative. To say that the Black experience is worse than the white experience by a sum amount is a simplification because it overlooks what being Black means. Being both Black and a murderer entails a multiple jeopardy consisting of class multiplied by substandard education multiplied by police harassment multiplied by magnified charging and sentencing multiplied by group stereotypes multiplied by disenfranchisement and government irresponsiveness multiplied by tough-on-crime. This is the Black experience with the death penalty.

Why Has Nothing Been Done?

The death penalty in the Supreme Court has followed the dead end path of other race-based jurisdiction. Under its judicial review duties, the Court is obligated to hear claims of institutional racial bias on the basis that this discrimination would constitute a violation of the Equal Protection Clause of the 14th Amendment. In 1972, the Court abolished the death penalty for four years on the grounds of its racial disparities.

However, in a 1990 study, the US GAO found "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision."²⁴ The fact stands that 26 years later, we are no close r to racial equity in capital cases. Furman, though a nice symbolic moment, failed. However, the decision in McKleskey v. Kemp (1987) was even more of a failure for equal rights. The Court decided that,

even if race of victim and defendant could serve as significant predictors of sentencing outcomes in death penalty cases, there was no constituti onal violation of 'equal protection of the laws' because such evidence does not show intentional discrimination.²⁵

After McKleskey v. Kemp, the burden of proof was placed on the defendant. These two cases bear a striking resemblance to the Brown II decision. Like Brown II, Furman failed to set workable terms for the implementation of non-discriminatory policy . And like Brown II, McKleskey made the victim responsible for proving that discrimination occurred. As if these shortcomings were not bad enough in the educational sector, the potential is even worse for capital punishment. Murderers are not looked upon favorably in the judicial system; they start out with an initial handicap characterized by unpopularity and a lack of credibility. Furthermore, racism in charging and sentencing is harder to prove than racism in school integration, especially without a trained attorney. The justice system functions on the conscious decision of judges and jurors. But racism works in unconscious ways. Donziger argues that this unconscious level of racism poses a greater threat than explicit, intentional racism.²⁶ This is definitely the case for death sentences where intentional discrimination is very hard to prove and practically impossible to disentangle from the many other dynamics present in capital cases such as class and differing state laws.

Much of this status quo politics can be attributed to public opinion. Unfortunately, American support for the death penalty is at a near record high. Since 1982, it has remained in the range of 70-75%.²⁷ Popular support plays a major role in maintaining the death penalty despite all its flaws: "If a clear majority comes to reject this form of punishment, we predict that the Supreme Court, if not Congress and the state legislatures, will follow suit."²⁸ Where is this support coming from? Chambliss points to a "moral panic" that comes about when the police and the FBI manipulate statistics to depict an increase in crime even though "the number of violent acts has decreased."²⁹ Instead of correspondingly cutting back on capital punishment, many states are stepping up the number of executions to satisfy a misguided public. We wind up with a circular system wherein politicians and the media encourage the public to support the death penalty and then use that public support to justify the maintenance of the death penalty.

Conclusion

This is all very unfortunate because the death penalty is not a proven deterrent to violent crime. Martin Luther King preached that a country that puts as much money into militarism as the US will inevitably be a violent society. I believe that a country that invests so much money in killing will be a nation of killers. The Black community is receiving the message that the government would rather pay to kill its members than to educate them. In addition, government is not being politically responsive to the fact that significantly fewer Blacks than whites favor the death penalty.³⁰ I do not believe that Black opposition to the death penalty is a matter of pardoning Black murderers. Blacks have the most to gain from murder prevention seeing as most victims of ghetto homicide are Black themselves. If anyone should know that the death penalty does not deter, it is those who live around homicide every day. Government action quickly loses meaning when murder and crime can be found everywhere you turn. My assumption is that any drop in homicide rates in Black underclass ghettos can be traced back to action taken by minority communities themselves, not by government. Progress has only been made where ghettos have taken an option for themselves. Such achievements were visible in places such as South Central following the Million Man March. The manifestations of unity and coalition, set in motion by the March, resulted in a considerable drop in the murder count. Martin Luther King's call for nonviolence still rings true, and the government still covers its ears.

So where do we go from here? Minority communities cannot do this on their own.

They did not create the problem. An institution that violates so many federal laws and numbs our national sensibilities requires action at the national level. Our federal government needs to step up and take responsibility because right now the guilt is being diffused through too many bureaucrats in too many states. I am not proposing an equalization of the death penalty. The killing of token whites to make a point is a step in the wrong direction and only digs a deeper hole. We need to return to a model of prisons as a place of rehabilitation, keeping in mind that every member of society is worth saving.

More importantly, we need educational reform and community uplift. To attack a racist death penalty, we need to simultaneously attack poverty, joblessness, homelessness, violence, hatred, segregation, and all institutions that create social dislocations and frustration. Charles Hamilton argues that the Black Power Movement needs to mobilize around more than just race. I believe the same applies to the struggle to end the death penalty in America. Capital punishment does damage along many lines, not just racial but also class and gender based. And its shortcomings extend far beyond its racial bias to include inefficiency, inconsistency, and unconstitutionality. Thus the uncovering of racial dynamics is necessary but not sufficient to end the institution of killing. The public needs to be enlightened and then needs to push for change. Nobody is gaining anything from the same futile measures. In fact everybody is losing because as King put it, "violence may murder the murderer, but it doesn't murder murder."

1 Steven R. Donziger, The Real War on Crime (New York: Harper Collins, 1996) 99.

2 Campaign to End the Death Penalty (pamphlet).

3 Donziger, 114.

4 Campaign to End the Death Penalty (pamphlet).

5 Phoebe C. Ellsworth, et al, "Hardening of Attitudes: Americans' Views on the Death Penalty," The Death Penalty in America Current Controversies (New York: Oxford University Press, 1997) 107.

6 William J. Chambliss, Ethnicity Race and Crime (SUNY Press, 1995) 236.

7 Chambliss, 237.

8 Charles V. Hamilton, Black Power: The Politics of Liberation in America (Vintage Books, 1992) 320.

9 Stephen B. Bright, "Counsel for the Poor: the Death Sentence not for the Worst Crime but for the Worst Lawyer," The Death Penalty in America, 278.

10 Bright, 276.

11 Bright, 288.

12 Donziger, 100.

13 Chambliss, 250.

14 Chambliss, 248.

15 Donziger, 127.

16 Donziger, 109.

17 Donziger, 110.

18 Campaign to End the Death Penalty (pamphlet).

19 Leon Higgenbotham, Shades of Freedom (Oxford University Press, 1996) xxv-xxvi.

20 Donziger, 109.

21 David C. Baldus, et al, "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience," The Journal of Criminal Law and Criminology 74 (1983): 663-664.

22 Baldus, 664.

23 Donziger, 109.

24 U.S. General Accounting Office, "Death Penalty Sentencing: Research Indicates Patterns of Racial Disparities," The Death Penalty in America, 271.

25 Hugo Adams Bedau, The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997) 250.

26 Donziger, 113.

27 Ellsworth, 90.

28 Ellsworth, 92.

29 Chambliss, 243.