Death Penalty

November 19, 2021
Last week I wrote about the case of Julius Jones, who until very recently was on death row despite compelling evidence of his innocence. Just before my deadline to submit inputs for the weekly newsletter, I received word that Julius’ death sentence was commuted to life without the possibility of parole. Although this is wonderful news, the problems endemic to the death penalty remain.

I believe the death penalty to be immoral, ineffective, and—most importantly—final. According to the Death Penalty Information Center, since 1973 at least 186 people who received death sentences have been exonerated. We will never know how many defendants whose executions were carried out might also have been exonerated had their cases received due diligence.

Another aspect of the death penalty that is less frequently discussed, but nonetheless troubling, is the correlation between the race of the victim and the likelihood of a death sentence. In other words, would Julius have been sentenced to death if the murder victim in his case was black instead of white? Some statistics indicate this to be much less likely, as illustrated by the Supreme Court case of McCleskey vs. Kemp.

Warren McCleskey was a black man sentenced to death in 1978 for murdering white Atlanta PD Officer Frank Schlatt during the commission of an armed robbery. McCleskey and his defense team claimed that the state of Georgia exhibited racial bias in its historical administration of the death penalty, thus violating the Equal Protection Clause of the Fourteenth Amendment, as well as the “arbitrary and capricious clause” of the Eighth Amendment.

McCleskey et al used a study by Professor David Baldus of the University of Iowa Law School that showed, among other conclusions, that Georgia murder defendants with white victims received the death penalty 11 times more often than those with black victims. After using statistical analysis to account for nonracial variables, the study still found that white victims resulted in a death penalty 4.3 times as often. Other statistical conclusions can be found at the bottom of this article along with a link to the study.

The Supreme Court rejected the appeal, stating that the statistical evidence of discrimination--which it accepted as valid--did not prove unequal treatment under the law, because there was no evidence of conscious bias on the part of the specific prosecutor assigned to McCleskey’s case. The opinion differentiated between a discriminatory effect vs a discriminatory purpose, and between bias in the system and bias in the actors of a specific criminal case.

To paraphrase another part of the majority opinion, the State of Georgia was free to implement the death penalty in spite of the fact that it is applied in a racially biased manner, as long as it doesn’t implement the death penalty for the purpose of furthering that bias. The dissenters countered with, among many other points, the opinion that proof of intent is not required under the Eighth Amendment.

Warren McCleskey was executed on September 25, 1991. His case was rated (albeit by the liberal respondents) as one of the worst Supreme Court decisions in its history by an LA Times survey of legal scholars. The justice who wrote the majority decision stated in his biography that he would reverse it if he could. The decision still stands today, and its scope goes well beyond the death penalty. It serves as a precedent for any case claiming systemic racism in the justice system, that the mere existence of that racism, without specific evidence of overt bias on the part of individual actors, is not enough to merit legal redress.

The death penalty is the last step in a criminal justice system that disadvantages black people at almost every turn. While overt racism like the KKK is not as pervasive as it used to be, the most pernicious form--unconscious and systemic—is still with us. It is unacknowledged, widespread, protected from legal redress, and very real.

Suggestions for Further Reading:
If you have the financial means, please support the authors of antiracism books by purchasing them from a Black-owned book store such as Estelita’s Library ( in Seattle.

The New Jim Crow, by Michelle Alexander, does an excellent job of explaining how racism is baked into every step of the criminal justice process.
Background on McCleskey vs. Kemp:
Baldus, et al study of the correlation between victim race and the death penalty in Georgia:

Other statistics:
Who received the death penalty?
Defendants with white victims: 11%
Defendants with black victims: 1%
Black defendants: 4%
White defendants: 7%
While the above seems to indicate that black defendants have a slightly easier time with the death penalty, the below numbers show a dramatic difference in black-on-white crime vs the other three combinations.
Black defendants with white victims: 22%
White defendants with white victims: 8%
Black defendants with black victims: 1%
White defendants with black victims: 3%
When did prosecutors seek the death penalty?
Black defendants with white victims: 70% of cases
White defendants with white victims: 32% of cases
Black defendants with black victims: 15% of cases
White defendants with black victims: 19% of cases

- Lenore

Photo by Pixabay from Pexels