- December 5, 2001

Death Penalty and Race: Partners in Injustice

Robert Dunham

The Legal Intelligencer

For years, study after study has established a disturbing link between race and the death penalty.

 The concerns about racial discrimination in the administration of the death penalty persist in virtually every jurisdiction in which death remains a legal form of punishment, and appear intractable. And while the myth is widely held that racial discrimination in the death penalty is exclusively a Southern phenomenon, Philadelphia's death penalty has all the trappings of Southern death-belt racial discrimination ... and more.

 Death penalty statistics shine an ugly spotlight on racial justice in the City of Brotherly Love.

 Philadelphia's death row of 135 men and women is larger than that of 42 states. Ninety percent of Philadelphia's death row are racial or ethnic minorities. During one recent period in the mid 1990s, 40 of 41 defendants sent to death row by Philadelphia juries (97.6 percent) were black or Latino. As of Nov. 1, Pennsylvania Department of Corrections figures revealed that Philadelphia's ratio of African American-to-European American death row inmates is a shocking 8.69:1 -- nearly 11 times worse than corresponding Department of Justice figures for death rows across the South.

 A new study by the Pennsylvania Capital Representation Project, with an anticipated year-end release date, reveals that Philadelphia has placed the largest number and highest concentration of black defendants on death row of any major American city. Philadelphia is the only city in America with more than 100 African Americans on death row, and as of July 1, had more than three times the number of African Americans on its death row than did any other comparably sized (1.35 million to 1.75 million) county in the country. The others, Clark County, Nev., and Cuyahoga County, Ohio, had 31 and 23, respectively.

 The upcoming report also discloses that, among comparably sized counties, Philadelphia had the largest number of minorities on death row (121); the highest percentage of African Americans on death row (83.6 percent) and the highest percentage of minorities on death row (90.3 percent).

 Philadelphia (census population 1.5 million) had 25 more African Americans on death row than any other county, regardless of size. Los Angeles and Harris County (Houston), with census populations of 9.5 million and 3.4 million, respectively, each had 87 African Americans on their death rows.

 Among all counties in the country with 30 or more death-row inmates, Philadelphia also had the highest concentration of African Americans and minorities on death row, and the highest per capita minority death row population. The concentration of African Americans on Philadelphia's death row was nearly 35 percentage points higher than for Los Angeles and more than 25 percentage points higher than for Harris County.

 The concentration of minorities on Philadelphia's death row was more than 22 percentage points higher than for Los Angeles and nearly 25 percentage points higher than for Harris County.

 Not surprisingly, a comprehensive study of more than 10 years of first degree murder convictions in Philadelphia conducted by Professors David Baldus and George Woodworth of the University of Iowa -- the nation's foremost researchers on race and capital punishment -- published in 1998 in the Cornell Law Review provided powerful evidence that being black significantly increased the likelihood of receiving a death sentence in Philadelphia.

 Using the same analytic and statistic methodology routinely employed in widely accepted public health studies, the Philadelphia study revealed that race is statistically more likely to affect death sentencing than smoking is to affect the likelihood of a heart attack.

 The key findings in the study included that black defendants in Philadelphia face odds that a jury will sentence them to death that are nearly four times higher than for non-blacks charged with similar offenses. Black defendants are more likely to be sentenced to death than other defendants.

 Killers of black victims are less likely to be sentenced to death than killers of non-black victims.

 The study documented that in Philadelphia, the mere fact of being black is the statistical equivalent of the most important statutory aggravating factors as a basis for imposing the death penalty. In simple human terms, the results of the study showed that, if the effects of racial discrimination were removed from the process, 35 fewer African Americans would have been sentenced to death in Philadelphia in the years 1983 to 1993 alone.

 The racially discriminatory imposition of the death penalty in Philadelphia capital cases is closely related to the racial profiling that is endemic in the selection of Philadelphia death penalty juries. Both the prosecution and the defense bar have been guilty of racial profiling, but the prosecution has historically been more successful in discriminating because its primary target group is a racial minority.

 Simply put, there are fewer blacks than whites to strike, and so discrimination against the smaller group has a disproportionate impact. And while race discrimination in jury selection is unacceptable whether practiced by defense lawyers or by prosecutors, it is particularly pernicious as part of the policy and practice of state officials.

 The practice of racial profiling in the Philadelphia District Attorney's selection of death penalty juries is now well documented.

TRAINING TAPE

 In April 1997, in the midst of an election campaign for Philadelphia District Attorney, the District Attorney's office released a 1987 training videotape to the public that, in the words of the Pennsylvania Supreme Court, "denigrated as ridiculous'" the goal of selecting a fair and impartial jury and offered "various racial and gender stereotypes ... as reasons to discriminate in the selection of jurors."

 The tape "described in detail" techniques for discriminating in jury selection, "including the maintenance of a running tally of the race of the venire panel and the invention of pretextual reasons for exercising peremptory challenges; and a willingness to deceive trial courts to manipulate jury panels to these ends."

 The tape included such statements as: "Let's face it, ... there's the blacks from the low-income areas[,] ... you don't want those people on your jury."

 "You know, in selecting blacks, you don't want the real educated ones." "In my experience, black women, young black women, are very bad." "You're not going to have some brain surgeon from Chestnut Hill with some nitwit from 33rd and Diamond."

 Nor can the training videotape be dismissed as the statements of a rogue prosecutor. One local journalist reported that D.A. jury selection training well into the 1990s showed that the practice had not changed.

 Notes from one of the lawyers present at the jury selection training program -- conducted by another prosecutor several years after the videotaped training -- disclosed that prosecutors were again taught such things as "The ideal jury, 12 Archie Bunkers, will convict on little evidence."

 "If you wanted, you could strike almost all blacks. This gives you an advantage." Both training sessions told prosecutors to keep track of the race of jurors.

 There can be little question that city prosecutors have systemically practiced what their trainers have preached. During the course of the landmark race study, Professors Baldus and Woodworth had noticed a statistically significant relationship between the racial composition of Philadelphia death penalty juries and the disproportionate rate at which these juries were sentencing African American defendants to death.

 This observation, coupled with the disclosure of the training tape, prompted a second Baldus study, published earlier this year in the University of Pennsylvania Journal of Constitutional Law, that demonstrated that the training techniques taught in the training videotape reflected practices long in place in the Philadelphia District Attorney's office.

 This second study tracked the District Attorney's jury selection choices over three prosecutorial administrations between 1981 and 1997, encompassing more than 10,000 choices to empanel or exclude prospective jurors. It revealed a consistent, historic pattern and practice of racial profiling by city prosecutors in the selection of capital sentencing juries. This study documented that city prosecutors peremptorily challenged black jurors from capital trials at double the rate that it challenged other jurors.

 The study also showed that racial profiling by the prosecution extended to the selection of non-black jurors: city prosecutors struck non-black jurors from integrated neighborhoods at twice the rate of jurors from highly segregated white neighborhoods.

 City prosecutors have publicly criticized the training videotape as advocating discrimination while at the same time arguing in court that it does not evidence any discriminatory policy or practice by the District Attorney's office.

 Instead of addressing the claims on their merits, however, city prosecutors have resisted every request to produce the notes of trial prosecutors that followed the practice espoused in the training tape to keep track of the race of jurors, have called the Baldus study "a fraud," and have personally attacked defense lawyers for "willfully slander[ing]" prosecutors by presenting historical evidence of discrimination.

 The personal attacks on Baldus and defense counsel who raise this issue are belied by the facts -- both statistical and from the horse's mouth. Indeed, in the case in which city prosecutors accused me of slander, a federal judge granted the defendant a new trial, finding that the prosecutor had discriminatorily excluded six black jurors because of their race.

 The supposedly "slanderous" evidence was that, during the course of 23 homicide prosecutions, the trial prosecutor had struck black jurors 3.3 times more frequently than white jurors, and 10 times more frequently in the case actually before the court.

 The prosecutor had stated on the record that she could not tell a juror's race simply by looking at him or her, but that she had struck 12 of the 14 jurors she thought were black. (She also stated on the record that people might mistake one Jewish juror as being black because the juror had curly hair.) The prosecution exercised 15 peremptory challenges in the case, 12 directed at African Americans, one at a Latino prospective juror and two at white prospective jurors.

 The prosecutor also had opposed a defense motion to strike a juror for cause who had admitted feeling prejudiced against the defendant because he was black and the juror had twice been the victim of crimes committed by black perpetrators.

OTHER FACTORS

 Other factors -- some that on the surface appear to be race neutral -- almost certainly influence the racially disproportionate application of the death penalty in Philadelphia. For example, Pennsylvania is one of only two states in this country that limits a jury's capital sentencing options to life without possibility of parole or death but does not instruct sentencing juries what a life sentence means.

 The National Jury Project survey of capital sentencing jurors reveals that, among all the life without parole states, Pennsylvania's jurors were the least informed as to the meaning of a life sentence. Fully half of the jurors surveyed believed that a defendant sentenced to life in Pennsylvania would receive parole after 12 to 14 years.

 Studies uniformly show that jurors are more and more likely to return death sentences as they believe that defendants will serve less and less time in prison. But no one -- not one person -- in the history of Pennsylvania's death penalty statute who received a sentence of life without parole after being capitally prosecuted has ever had a reduction of that life sentence.

 There can be little question that some unquantifiable number of capital sentencing juries have imposed death sentences out of fear caused by the false choice of sentencing options that results from the systemic failure to explain our sentencing option. The failure to provide a truthful life without parole sentencing instruction is facially race neutral, but as Willie Horton has taught us, the fear that a defendant will pose a future danger to society is not.

 When prosecutors select for racially insulated white jurors who are the most geographically isolated from African Americans, they select for jurors who are the most fearful of black defendants and most likely to mete out a death sentence out of erroneous fear of the defendant's future release.

 Similarly, Pennsylvania's aggravating circumstances that support imposition of death are facially race neutral, but are not necessarily race neutral in application. The facially neutral aggravating circumstance that a defendant has a significant history of prior felony convictions involving the use or threat of violence -- which has been judicially interpreted to include non-violent burglaries and criminal trespasses, as well as juvenile adjudications for offenses equivalent to burglary and trespass -- will not be race neutral in application if minority offenders are disproportionately the subjects of the juvenile justice system, disproportionately prosecuted for burglary and trespass, and are disproportionately convicted.

 But this is what a recent study by the National Council on Crime and Delinquency suggests.

 More black defendants will have a history of felony convictions than white defendants, for the same conduct. And the more racially isolated and fearful the jury, the more likely they are to deem that history "significant" and to find it decisive as a basis to sentence the defendant to die.

 And so it goes. The influence of race permeates the death penalty, in Philadelphia and nationally.

 Its pernicious effects have placed defendants on death row who, but for their race, would have been spared death, and perhaps acquitted. And even where its effects cannot be quantified, the specter of discrimination undermines confidence that justice will, or even can, be done in capital cases, and in the integrity of the judicial process.

 Robert Dunham is the director of training for the Capital Habeas Unit of the Pennsylvania Capital Representation Project of the Philadelphia Federal Defender.