I. INTRODUCTION

Throughout its long history as a form of punishment in the United States, the death penalty has been overwhelmingly and disproportionately used against minorities, specifically those of African descent, and the impoverished. Whether for murder (the only crime that warrants the death penalty in present times) or for rape (which at one time could justify the death penalty) the death penalty has been used as a tool to take the lives of Black people and the poor. In cases involving the death penalty, the defendant facing the loss not only of his or her freedom, but life, is often provided the sparsest of defenses. Public defenders who lack the resources or skill to handle a death penalty case, or who are completely incompetent and uncaring to the plight of their client. Attorneys who come to court drunk, fall asleep while in court, or who fail to question key witnesses who could provide pertinent information to the case. These are just a few of the many obstacles that are disproportionately faced by Black and poor people facing the death penalty.

In this paper, I will discuss the role that white supremacist ideology plays in the use of the death penalty against Black people. I will begin with a brief overview of some of the statistical data that shows the clear disparity that exist in the application of the death penalty based on the race of the victim, the race of the accused, or both. I will then address the various major arguments against use of the death penalty in general. These arguments include, but are not limited to, issues of racial disparity. Also addressed will be the judicial response (or lack of response) to statistical data showing a clear pattern of discrimination in various phases of the death penalty process. This will include a historical background to the death penalty, including its connection to slavery and post-abolition lynching. In conclusion, I will address different remedies that have been proposed by various scholars and legal minds, mainly moratorium and abolition of the death penalty.

II. DISPARITIES IN DEATH PENALTY STATISTICS

Records for the death penalty in the United States in modern times began being kept in 1930. Of the 4,459 people executed between 1930-1999, 2,279 were Black (1). Between 1930-1967, 445 people were executed for the crime of rape. Of that number, 90% of those executed were Black. Between 1930-1967, three out of five executions that took place in the United States happened in a southern state, and a disproportionate number of executions still are performed in the South. As of March, 2007, of 1066 executions, 874 took place in Southern states. Presently, forty jurisdictions in the United States have capital punishment statutes (38 states, the federal government and the U.S. military). Twelve states and the District of Columbia do not have statutes. Since the death penalty was reinstated in 1976, Texas has executed the most people with 387. Virginia is a distant second with 98. Kansas, New Jersey, New Hampshire, South Dakota, New York, and the military haven’t had any executions since 1976. Approximately 98% of those on death row are males. Black people comprise about 41% of the death row population, Hispanics approximately 11%, and whites 45%.

In 1972, the death penalty was declared unconstitutional by the decision in Furman v. Georgia, which declared that the application of the death penalty was ‘arbitrary and capricious’, and was discriminatory in its application to racial minorities and the poor. In 1976, three cases paved the way for the reintroduction of the death penalty, however with new rules and regulations intended to eliminate discrimination in its application. Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida, all called for ‘guided discretion’ in death penalty cases. They stated that courts could impose the death penalty only for specified crimes, and that any death penalty trial must include a two-tiered trial system. One trial being to determine guilt or innocence, and a second trial to determine whether the convicted person should live or die. Woodson v. North Carolina and Roberts v. Louisiana declared invalid mandatory death penalty laws in 21 states, which did not allow any room for jury or judicial discretion beyond the determination that the person was guilty. Meaning that under these old laws, if a person were convicted of capital murder, they were automatically sentenced to death without a second trial to present evidence to help save their life. Despite these changes in law, the discriminatory and disproportionate application of the death penalty towards Blacks and the poor persists. This is based on a variety of factors, mainly focused on the dominant white perspective, and the differing values placed on white and Black life.

III. ARGUMENTS AGAINST DEATH

There are many key arguments that opponents of the death penalty make to show why it should be eliminated. The main general arguments are:

1. The death penalty is generally unfair. It has never in its modern usage been applied fairly across race, class, and gender lines.

2. The death penalty risks killing innocent people. Since 1976, more than 100 prisoners sentenced to death have been released from death row or found completely innocent for various reasons. According to the Death Penalty Information Center, since 1973, over 120 people have been set free from death row due to evidence proving them innocent(). There are many people on death row who are facing death based on the word of a single witness, some of whom received benefits for their testimony, or based on a single eye-witness.

3. The death penalty punishes the poor. The poor are often represented by unprepared, overworked, often token defenders, who don’t have the resources, time, and sometimes skill, to adequately defend a death penalty case. There are documented instances of defense lawyers in death row cases coming to court drunk, falling asleep during trial, and failing to question key witnesses.

4. The death penalty is racially biased. Black defendants are more likely to receive the death penalty in any case, particularly if the victim is white, and anyone who is convicted of the capital murder of a white person is 4.3 times more likely to be sentenced to death.

5. The death penalty is even opposed by growing numbers of victims families. Many victims families and organizations representing the victims of murders, including Journey of Hope and Murdered Victims Families for Reconciliation, are against the death penalty as a form of punishment for those convicted of killing their loved ones.

6. The death penalty cost more than life in prison. Kansas and North Carolina did studies which showed that the cost of a capital case and the cost of carrying out a death penalty were both more expensive than there non-death case counterparts.

7. The death penalty is not a deterrent to crime. Since the reinstatement of the death penalty in 1976, 80% of all executions in the United States have taken place in the South. On the other hand, the Northeastern section of the United States, which has the lowest murder rate of any section of the country, has accounted for only 1% of executions. A 1995 Hart Research Poll of police chiefs found that the majority of those chiefs interviewed did not believe that the death penalty was an effective method of reducing violent crime. Of all the options, the death penalty came in last, with barely 1% support, behind other options as reducing drug abuse, better economy/jobs, simplifying court rules, and longer prison sentences(death penalty info.org, 2007).

8. The death penalty is not used in the majority of countries around the world. Most countries have either discarded the death penalty as a means of punishment based on its barbaric nature, or never utilized it to punish crimes.

9. The same ‘arbitrariness and capriciousness’ that caused the death penalty to be declared unconstitutional in 1972 still exists. Courts on the federal and state level have seemingly taken a ‘head in the sand’ approach to dealing, or not dealing, with issues of discrimination and disparities relating to the death penalty, ignoring statistics that clearly show racial and class discrimination in its application.

Looking at things in the larger historical context, it is easier to see why issues of discrimination persist in the application of the death penalty to Blacks and the poor. The death penalty in many ways is a direct descendant of lynching and other racial violence directed mainly at minorities, specifically African descendants. Lynching was largely based on the view of Black people as being inferior, even not completely human. The value given to a Black life was far beneath that given to a white life, by the judicial system and by society at large. The former Southern laws concerning rape are one glaring example of this disparity. At one time, a Black man convicted of raping a white woman was automatically sentenced to death; a white man could be sentenced from two to twenty years; any man convicted of raping a Black woman, however, was subject to only a fine, and imprisonment if the judge felt it necessary, which was a rarity. The death penalty for rape was declared unconstitutional by Coker v. Georgia, which declared that the punishment of death for rape was disproportionate to the crime committed. At the time the decision in Coker was handed down, there were 20 people on death row for rape in Georgia; 3 were white, and 17 were Black. Early on, following the end of Jim Crow, the death penalty became officially a form of ‘legal lynching’; a way that Blacks could be punished as the white majority saw fit, however still maintaining the appearance of civility and fairness to the outside world. Lynch mobs and public lynching were unorganized and attracted lots of negative publicity. In order to appease the mob mentality, the legal systems in many southern areas began to have quick, staged trials, in which the ultimate outcome would still be death.

The decision to seek the death penalty in capital murder cases is completely arbitrary, meaning it is at the discretion of the district attorneys office whether to seek death or life imprisonment. It is said that certain mitigating or aggravating factors (I.e. multiple victims, torture, multiple wounds, murder in addition to another felony, etc.) must be present to warrant the death penalty, however this rule is also applied very loosely and ambiguously. A study by the Death Penalty Information Center stated that being Black was a more significant mitigating factor in getting the death penalty than a murder committed with another felony, murder with multiple wounds, and causing great harm, fear, or pain(). A member of the Georgia Board of Paroles and Pardons said that if he were to take the files of 100 cases punished by life, and 100 cases punished by death, and mixed them up and threw them on a table, it would be nearly impossible to determine which cases got which punishment based on the facts within the files.

Although approximately half of the murder victims in the United States each year are people of African descent, 85% of those sentenced to death were sentenced to death for murdering white people. Few people familiar with the state of race relations in the United States today would deny that there is a risk of racial prejudice influencing the sentencing decision in the typical capital case: a Black defendant facing the death penalty for the murder of a prominent white person who is prosecuted by a white prosecutor before a white judge and an all-white or predominantly white jury. The likelihood of racial prejudice influencing whether the death penalty is sought by the prosecutor or imposed by the jury is even greater if other factors are present, such as the rape of a white woman. The United States Supreme Court has observed, “A juror who believes that Blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether the crime involved aggravating factors ….” In addition, a juror’s racial biases might prevent him or her from considering evidence about the life and background of the accused in mitigation. The Court pointed out, for example, that “such a juror might also be less favorably inclined toward the defendant’s evidence of mental disturbance as a mitigating circumstance.”

The Supreme Court also observed that “more subtle, less consciously held racial attitudes” - unconscious racism - “could also influence a juror’s decision in the case. “For example, “fear of blacks, which could easily be stirred up by the violent facts of the crime, might incline a juror to favor the death penalty.” Although the Supreme Court spoke of jurors, racial prejudice is not limited to jurors. Law enforcement officials, prosecutors, judges, defense lawyers, and court officials may have racial biases which influence their attitudes toward crimes and those accused, as well as their exercise of discretion in the process leading to imposition of a death sentence.

A prosecutor who believes that “Blacks are violence prone or morally inferior” may be less likely to seek the death penalty in cases involving Black victims and more likely to seek the death penalty in cases involving Black defendants. A prosecutor’s unconscious racism, his or her fear or misunderstanding of people of a different race or culture, may well be “stirred up” in a case involving an interracial crime and influence the prosecutor to seek the death penalty in that case, but not in similar cases that are not interracial. A judge with similar attitudes may fail to recognize or correct racial discrimination by prosecutors in selecting juries, in seeking the death penalty, or in presenting evidence or argument. A defense lawyer who has racial biases may not spend enough time with the client or the client’s family to discover mitigating evidence. A Black client may be seen as “arrogant” or “uncooperative” due to the lawyer’s racial stereotypes. A lawyer may not diligently try to save the life of one believed to be inferior. Racial discrimination often influences the capital sentencing decision in other ways as well. Members of racial minorities continue to be excluded as judges, jurors, prosecutors, lawyers, and law enforcement officials in the criminal justice system. A member of a racial minority who is also poor faces the disadvantage in a capital prosecution of being represented by a court-appointed lawyer. In many states, defense lawyers are appointed by elected trial judges, many of whom are former prosecutors who won positions on the bench after prosecuting high publicity capital cases. Often, court-appointed lawyers lack the knowledge, skill, resources, sensitivity and inclination to handle the case. These lawyers may fail to recognize and challenge the role that race plays in determining who dies.

While it is difficult to measure precisely the extent to which race influences decision-making in any particular capital case, only those oblivious to the brutal history of racial discrimination in American law would deny the danger of racial prejudice entering the decisions which lead to the imposition of a death sentence. However, instead of undertaking the challenge of minimizing or eliminating the potential for racial prejudice in these highly subjective and emotional decisions, courts and legislatures have been largely indifferent to the influence of race in the infliction of the death penalty. Despite pronounced racial disparities in the infliction of the death penalty in both state and federal capital cases, Congress and state legislatures have failed to limit application of the death penalty or provide remedies for racial discrimination, such as the Racial Justice Act.

Instead of acknowledging the risk of racial discrimination and attempting to identify and eliminate it, both federal and state courts frequently dodge the inquiry. They deny the existence of racial discrimination that is apparent to everyone, employ legal fictions that have no relation to the reality of race relations in America today, set legal standards or burdens of proof that are impossible to meet, or provide wholly inadequate remedies for discrimination that is undeniable. All this may be done while the courts are issuing sweeping pronouncements denouncing the evil of racial discrimination and proclaiming their unceasing efforts to cure it. One prominent federal appellate judge observed that the failure of the courts to remedy instances of racial discrimination has sent the message that federal courts, which once offered the greatest hope to the nation’s minorities, are “no longer interested in protecting the rights of minorities.”

Despite the racial discrimination which has been a major aspect of the death penalty throughout American history, the Supreme Court and lower federal and state courts have been reluctant to face racial issues presented by capital cases. The courts have simply been in a state of denial instead of confronting and dealing with the difficult and sensitive issue of race.
After declaring racially discriminatory jury selection practices in one Georgia county unconstitutional, the United States Supreme Court remanded to the Georgia Supreme Court a capital case in which the jury had been selected by the same illegal means in the same county. However, when the Georgia Supreme Court refused to reconsider its previous holding that the issue had been waived, the United States Supreme Court backed down, denied certiorari and allowed the execution to be carried out. It appears that the Court, already encountering resistance to its decision in Brown v. Board of Education, did not want anymore confrontations with southern state courts over racial discrimination in the criminal courts. Over ten years later, the United States Supreme Court appeared willing to review the role of racial prejudice in capital cases when it granted certiorari in Maxwell v. Bishop, a case in which the Eighth Circuit rejected a challenge based upon the pronounced disparity in the number of Black people sentenced to death for rape in Arkansas and other parts of the South. However, after twice hearing oral argument devoted mostly to the issue of racial discrimination, the Court vacated the death sentence and remanded the case based upon a jury qualification issue which had not even been raised in the Court of Appeals, completely ignoring the racial discrimination aspects of the oral arguments.

Although the appearance of race discrimination was acknowledged by justices in both the majority and the dissent in Furman v. Georgia, only Justice Marshall discussed racial discrimination at length. Justice Stewart found it unnecessary to discuss the issue, while acknowledging that “if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissibly basis of race.”

Despite the extraordinary history of discrimination with regard to the infliction of the death penalty upon Black men for the rape of white women, the Court did not even mention race in striking down the death penalty for the crime of rape in Coker v. Georgia. It is impossible to know how many state courts have found ways to avoid the issue of race in deciding capital cases. The Georgia Supreme Court frequently discusses every issue presented to it, even those which need not be addressed for a decision. But in holding that a trial judge should be recused from a case because of his involvement in opposing a motion to disqualify him, the court never mentioned the motion was based on the judge’s long history of racial discrimination. Evidence presented in the trial court established that the judge regularly appointed jury commissions which underrepresented Black people, tolerated gross under representation of Blacks in the grand and trial juries, mistreated Black attorneys in court, used racial slurs, and practiced discrimination in his personal life.

The Missouri Supreme Court summarily reversed two capital cases without mentioning evidence that prosecutors in Kansas City used racial slurs to refer to Black citizens, systematically excluded black citizens from juries, and refused to plea bargain with Blacks charged with murders of whites while offering plea bargains in all other potential capital cases, including a case of murderers who killed four generations of a Black family. The Alabama Court of Criminal Appeals similarly failed to acknowledge or discuss disturbing evidence of racial discrimination in setting aside a capital conviction and sentence. The court did not mention that the prosecutor had used twenty-six peremptory jury strikes against Blacks after dividing potential jurors into four lists under the headings, “strong,” “medium,” “weak” and “black” or that the trial court had held there was no discrimination.

Apparently, many courts believe it is best to avoid the sensitive issue of race. Why else did the courts not denounce these blatant examples of racial discrimination in the strongest terms? While the failure of the appellate courts to mention the race issues in these cases may have been coincidence, it is more likely that courts are defensive about the racial discrimination that takes place in what is supposed to be a system of equal justice. Their opinions leave those who read them without any hint that the cases involved racial discrimination and thus provide trial courts with no guidance in considering those issues. In addition, lawyers reading appellate opinions are less likely to realize the importance of race and search out and challenge discrimination. The failure of the courts to discuss and condemn racial discrimination only fosters more discrimination.

Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources, and commitment to handle such serious matters. This fact is confirmed in case after case. It is not the facts of the crime, but the quality of legal representation, that distinguishes this case, where the death penalty was imposed, from many similar cases, where it was not.

Inadequate legal representation does not occur in just a few capital cases. It is pervasive in those jurisdictions which account for most of the death sentences. The American Bar Association concluded after an exhaustive study of the issues that “the inadequacy and inadequate compensation of counsel at trial” was one of the “principal failings of the capital punishment systems in the states today.” Justice Thurgood Marshall observed that “capital defendants frequently suffer the consequences of having trial counsel who are ill equipped to handle capital cases.” The National Law Journal, after an extensive study of capital cases in six Southern states, found that capital trials are “more like a random flip of the coin than a delicate balancing of the scales” because the defense lawyer is too often “ill trained, unprepared . . . and grossly underpaid.” Many observers from a variety of perspectives and from different states have found the same scandalous quality of legal representation.
These assessments are supported by numerous cases in which the poor were defended by lawyers who lacked even the most rudimentary knowledge, resources, and capabilities needed for the defense of a capital case. Death sentences have been imposed in cases in which defense lawyers had not even read the state’s death penalty statute or did not know that a capital trial is split into separate determinations of guilt and punishment. State trial judges and prosecutors who have taken oaths to uphold the law, including the Sixth Amendment, have allowed capital trials to proceed and death sentences to be imposed even when defense counsel fought among themselves or presented conflicting defenses for the same client, referred to their clients by a racial slur, cross-examined a witness whose direct testimony counsel missed because he was parking his car, slept through part of the trial, or was intoxicated during trial. Appellate courts often review and decide capital cases on the basis of appellate briefs that would be rejected in a first-year legal writing course in law school.
There are several interrelated reasons for the poor quality of representation in these important cases. Most fundamental is the inadequate funding for the defense of the poor and mostly Black. As a result, there is simply no functioning adversary system in many states. Public defender programs have never been created or properly funded in many jurisdictions. The compensation provided to individual court-appointed lawyers is so minimal that few accomplished lawyers can be enticed to defend capital cases. Those who do take a capital case cannot afford to devote the time required to defend it properly. As a result, the accused are usually represented by lawyers who lack the experience, expertise, and resources of their adversaries on the prosecution side.
Many state court judges, instead of correcting this imbalance, foster it by intentionally appointing inexperienced and incapable lawyers to defend capital cases, and denying funding for essential expert and investigative needs of the defense. The minimal standard of legal representation in the defense of Black and poor people, as currently interpreted by the Supreme Court, offers little protection to the person stuck with a bad lawyer.

IV. CRITICAL RACE ANALYSIS OF DEATH DETERMINATION

Even in death penalty cases in which the jury is comprised of more than a token Black representative (or none at all), the effects of the dominant white privileged way of thought can still be seen and felt. Due to the influence and pressures of the constant racism faced by Black people in society, many find it easier to “join them”, instead of try to beat them; meaning that they choose to attempt to mimic and align themselves with the ideology of white supremacy of the dominant majority. This is done in an effort to become more acceptable to, and possibly even find favor from, the white people whom they observe in most of the positions of power in our society. This phenomenon can be observed in the words and actions of many of the Black people who do manage to make it into the criminal justice process, whether it is the arresting officer, prosecuting attorney, public defender, judge, or even juror. In his essay, “Death in Whiteface”, Benjamin Fleury-Steiner refers to this as whiteface, which he defines as “…the purchase of an ideology or broad belief system grounded in the belief that nonwhite or “white trash” others are innately prone to irresponsibility and immorality.” (Ogletree and Sarat, 2006).

This falls right in line with the Critical Race Theorist view that objectivity in the criminal justice system, and legal system as a whole, is an illusion. ‘Objective’, as it applies here, actually means the values and beliefs of those who are born with the property of whiteness, and all the benefits and protections thereof. Given the ‘innate inferiority and immorality’ of Black people, it is the duty of those within the legal system to be the protectors of those with property (White, wealthy), from those without (Black, poor). This is the status quo, the standard point-of-view, from which all decisions within the legal system are made. Several polls of racial attitudes in recent years have shown that most white people do not consider racial discrimination the cause of Black inequality. If not racial discrimination, then what? The answer is painfully obvious, although it is usually never spoken by ‘intelligent’ white people, except possibly in coded language: They believe that the true reason for Black inequality is the natural, innate inferiority of Black people. Although manifested differently by Conservatives and Liberals, Northerners and Southerners, Democrats and Republicans, this is still the belief of the dominate white majority in this country. And since the laws and rules that govern this country are made by white people, for the preservation of white supremacy, it is clear to see why the death penalty continues to be applied in the manner that it is. If Blacks are considered naturally inferior, then by default that would imply the natural superiority, or supremacy, of white people, and ultimately the supremacy of white life over Black life. For anyone not a follower of the dominant white supremacist ideology (as a white person or Black person who accepts the ‘whiteface’), the methods utilized to justify and maintain white dominance range from laughable to psychopathic. For example, it is often used as an excuse to justify lynching, and even slavery, that the white men and women who participated in cruel and inhuman behavior were just ‘people of their time’, not animals, insane, or somehow lacking mentally. No, they were good, honest, loving, God-fearing people, who due to the time they grew up in, decided to burn Black people alive and shoot their already dead bodies; to rape Black women and keep their own children as slaves; to cut pregnant Black women’s stomachs open, pull the child out, and bash its skull; to hang and castrate Black men for the capital offense of looking at a white woman, all while having a picnic of sandwiches and fruit. They were lovely people. However, Black people, who for years were enslaved, had families torn apart, were denied education of any kind, suffered torture and murder at random, and even following the abolition of slavery, were and are hindered from equality and advancement by various tactics, lynched, and forced into crowded ghettos, are innately inferior?

Viewing the death penalty from the perspective of white supremacy, it is a well oiled machine that does exactly what it is intended to do: Not only allow, but promote the value of white life over Black life. Those Blacks in the criminal justice system, and those facing murder charges particularly, are the lowest of the low, as Derrick Bell referred to as “the faces at the bottom of the well.” In addition, they are viewed as the biggest threat to white supremacy, due to their unwillingness, or perceived inability, to accept the ‘whiteface’, and be assimilated into the white supremacist ideology. White supremacy in its present-day form has far less to do with skin color and far more to do with the mentality, the ideology, of the individual. A Black person, who is non-assimilated, and accused of murder, is a threat. But a Black person, who is non-assimilated, and is accused of the murder of a white person, is not only a threat, but must be killed, utilizing the well-oiled machine, and with all appearances of propriety. Despite what the U.S. Supreme Court and other courts throughout the United States have said, or chosen not to address, the evidence of discrimination and racism is apparent. According to the Baldus study, one of the most comprehensive studies done on disparities in the death penalty, in 96% of states where reviews of race and the death penalty have been done, there was a pattern of either race-of-defendant or race-of-victim discrimination, or both(Baldus report to the ABA, 1998). The statistical data speaks for itself, and is overwhelming. It is no surprise that the majority of white people support a legal system that serves and protects their interest, and severely punishes those mostly Black and poor individuals who do not accept or understand their ‘proper place’ in this white supremacist society. The question is why do a large number of Black people, who have suffered the most at the hands of the U.S. legal system, and have seen the way that it is used to promote and preserve white supremacy, still support it? As with most things, the death penalty cannot be looked at in a vacuum. It must be looked at in the context of history, and any analysis of it must include the connections the death penalty and legal system have with other areas of society.

What are often classified as conscious and unconscious racism both play prominent roles in the use of the death penalty among poor Black people. Conscious racism is most often viewed as the blatant words, ways, and actions that show hatred or disdain for a particular race, and a desire to keep people from that race subjugated. Examples of this would be use of ‘hate’ words such as nigger or monkey in reference to Black people; openly discriminatory practices based on race, such as exclusion of Black people from certain neighborhoods, jobs, or clubs, with that being expressed openly; acts of violence, or manipulation of the legal system to unfairly punish Black people, in which the role of race is not hidden, but openly expressed. Unconscious racism is considered to deal with the more deeply ingrained set of values, beliefs, and prejudices that shape the views of a person towards another person or group of people. These ingrained ideas are not manifested in clear and obvious racist action, but in more subtle ways that on the surface may appear race-neutral. Examples of this would be the use of peremptory strikes to remove virtually all Blacks from a jury, with various excuses given for this, none directly addressing the race of the potential juror. Another example would be the requirement of “exceptionally clear proof” to sustain a claim of racial discrimination in infliction of the death penalty under the Equal Protection Clause, which basically requires an unrealistic and ridiculous situation where a decision maker in the judicial process has to in some way openly say or show that they pursued the death penalty against a Black defendant based on race. Although individual Justices have acknowledge the impact that unconscious, or subtle racism, can play in the death penalty decision-making process, the Supreme Court, and other courts as a whole, have chosen to ignore the evidence showing disparities in death penalty application, and allowed the executions of Black people who at the very least raised reasonable doubt as to their innocence. Just as a single Black juror may be influenced by threats and harassment by 11 other white jurors, and cast a vote in favor of death even though they don’t feel it is warranted, others in the death penalty cycle are influenced by outside forces as well. Police chiefs, many of whom know that the death penalty is not a significant deterrent to crime, still may push for its use so as to appear that they are tough on crime. The same applies to prosecutors, who don’t want their usually white constituents to think that they are not interested in protected their property and more valuable lives.

V. CONCLUSION

There are really two basic schools of thought concerning the use of the death penalty and the obvious disparities that exist in its application: Those who think that the problem is fixable, through legislation and judicial reform, and those who think the problem is permanent, and cannot be fixed. Those who think that the problem is fixable propose a national moratorium for the death penalty, so that the problems of race that seem to be inherent in it can be addressed and dealt with. There is not much evidence or information as to how this temporary stoppage of the death penalty will differ from the one that took place in 1972, especially given that a majority of the problem is unconscious racism, or at the very least racism that will not be obvious or easily detected. I tend to support the other option, which is total abolition of the death penalty within the United States as it stands at present. The impact of racism is too prevalent and difficult to detect, especially given the legal standards of proof needed, the disparities too great, and the risk of taking more innocent lives too likely, to continue the process as it exists at present. The death penalty is irrevocable; once a person is dead, they’re dead, nothing can bring them back. Those who accept the fact that innocent people are executed, most of whom are Black and poor, are simply wearers of the same whiteface that produced the system in the first place. The death penalty should not be considered as a form of punishment until the long oppressed voices and viewpoints of Black people and other poor people are heard and considered of equal importance, if then.

ANNOTATED BIBLIOGRAPHY

Law Review Articles

1. Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stanford L. Rev. 317(1987).

2. Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev.433 (1995).

3. Carlton Waterhouse, Avoiding Another Step In a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and A Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. Third World L.J. 207 (2006).

4. Kimberle’ Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988).

5. Stephen B. Bright, Counsel For The Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994).

6. Susan Bandes, Simple Murder: A Comment on the Legality of Executing the Innocent, 44 Buff. L. Rev. 501(1996).

Books

1. Paul D. Carrington and Trina Jones, Law and Class in America (2006).

2. Ronald W. Walters, White Nationalism, Black Interests- Conservative Public Policy and the Black Community (2003).

3. David Cole, No Equal Justice (1999).

4. Silvana Siddali, From Property to Person (2005).

5. Charles J. Ogletree, Jr. and Austin Sarat, From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006).

Websites

1. Amnesty International-http://web.amnesty.org/library.

2. Center on Wrongful Convictions- www.law.northwestern.edu/wrongfulconvictions.

3. The Innocence Project- www.innocenceproject.org.