Racial inequities in America’s death penalty
By Kristina Leslie
“Justice is often painted with bandaged eyes. She is described in forensic
eloquence, as utterly blind to wealth or poverty, high or low, white or black,
but a mask of iron, however thick, could never blind American justice, when
a black man happens to be on trial.”
-Frederick Douglass
As an African-American public defender, the recent police murders of
Ahmaud Arbery, Breonna Taylor, George Floyd, and so many other African-
Americans cut deeply. They have proven that the civil rights movement of
the 1960’s has failed to permeate America’s law enforcement and criminal
justice systems. And nowhere are these racial prejudices harsher than in
the application of America’s death penalty.
The death penalty is facing declining support partly because of awareness
of the continuing racial disparities in its implementation. While African-
Americans comprise about 13% of the U.S. population, they account for
about 42% of death row populations. They also have accounted for 35% of
all executions in the U.S. since 1976, when the Supreme Court ended a
four-year moratorium and ruled capital punishment constitutional, ushering
in the “modern era.”
In the modern era, the race of the victim often determines sentencing
procedures. According to the Death Penalty Information Center, 76% of
those who have been executed since 1976 had white victims, while only
15% of killers of blacks were executed.
The disparity for interracial murders is even more striking - 295 black
people were executed for killing a white victim while only 21 white
perpetrators were executed for killing a black victim.
Of the 1,390 documented executions carried out in Virginia since 1608, only
four involved a white person killing a black man or woman, all of them since
1997.
Incredibly, racial bias in capital sentencing is openly allowed by the U.S.
Supreme Court. In the 1987 case McClesky vs. Kemp, the court ruled that a
pattern of racial disparities in the death penalty did not violate an
individual’s Constitutional right of “equal protection of the law.”
Virginia is America’s undisputed leader in pursuing capital punishment. The
Old Dominion started executing in 1608, when Captain George Kendall was
shot by firing squad for treason, and except for a 20-year moratorium from
1962 to 1982, she has not stopped. In all, Virginia has executed more
people than any other state, including Texas.
Always looking for a more efficient way to kill, in addition to the firing
squad, Virginia has “hung in chains” (killed then left on display), burned at
the stake, hanged, and electrocuted, with the current default method lethal
injection. Many of these “improvements” in execution methods have been
shrouded in secrecy and Jim Crow bigotry.
After the Civil War, widespread racial prejudices in the judicial process,
mostly directed toward young black men accused of assaulting, touching or
even scaring a white woman, made public hangings more resemble tent
revivals than executions. Onlookers took off from work, brought picnic
lunches then sang and prayed aloud with the condemned prisoner. School
children were often brought to witness these lynchings.
In 1908, the all-white, all-male Virginia General Assembly’s vote to stop
public hangings and centralize executions to the inmate-built electric chair
in the basement of the State Penitentiary in Richmond was a decision
specifically intended to stop large numbers of blacks from congregating.
From then until the 1990s, overwhelmingly black inmates were executed in
a hot, dingy basement, not in front of a praying, singing crowd of peers but
alone in front of twelve somber white witnesses.
Evidence shows that in the early 20th century lynching and capital
punishment co-existed in the Commonwealth for the same reason - to
terrorize the black population with an accusation, a guaranteed outcome of
guilty and a subsequent quick death.
An editorial in the October 1, 1908 Richmond Times-Dispatch implied that
the use of the brand-new electric chair and the newly-instituted secrecy
surrounding it as almost identical to lynching, in that the chair was “... well
calculated to inspire terror in the heart of the superstitious African.”
Executions were thus carried out in similar manners as lynchings, swiftly
and efficiently, with the only difference being one was - and still is -
completely legal.
While the Virginia death penalty’s 400-year history is littered with horrific
abuses, egregious misconduct and strong evidence of wrongful killings, a
more contemporary case of monstrous racial bias occurred in 1950, when
seven young black defendants were charged in Martinsville with the rape of
a white woman. In a shocking affront to the burgeoning civil rights
movement, all seven men - several falsely threatened into confessing with
non-existent lynch mobs - were found guilty of rape and aiding and abetting
rape by white juries, then assembly-line electrocuted on two separate days.
In stark contrast, at the same time as the Martinsville case, the Norfolk
Journal! reported that a white western Virginia man named Murrel Dudley
was convicted of raping a “feeble-minded colored woman.” Instead of
execution, he was fined $20.
Death penalty supporters may contend that the racial makeup of Virginia’s
executions since the death penalty moratorium ended in 1982 is evenly split
between black and white (54 black, 55 white, 4 foreign national), these
arguments fail to take into account that Virginia’s 13% African-American
population makes blacks seven times more likely to be executed than whites
for identical crimes.
The death penalty is dying. In Virginia, there have been no executions since
2017, there are only two on death row, and no jury has handed downa
death sentence since 2011. Still, any meaningful and racially equitable
criminal justice reform born in the wake of the recent police murders and
subsequent protests must include abolishing the death penalty. Black lives
matter.
Kristina Leslie is an Assistant Federal Public Defender and once worked for the
Capital Defender Office in Northern Virginia, which represents those charged with
capital murder at the trial level. She is President of the board of directors of
Virginians for Alternatives to the Death Penalty.
HEE
