DISCRIMINATION, DEATH AND DENIAL: THE TOLERANCE OF
RACIAL DISCRIMINATION IN INFLICTION OF THE DEATH PENALTY
Copyright (c) 1995 School of Law,
Santa Clara University; Stephen B. Bright
This lecture by Stephen B. Bright, director of the Southern
Center fo Human Rights, was delivered at a symposium at the Santa
Clara University School of Law and published in Volume 35 of the
Santa Clara Law Review, starting at page 433 (1995). Remarks of
other speakers at the symposium may be found in the same volume
of the Law Review beginning at page 419.
I. INTRODUCTION
Capital punishment, one of America's most prominent vestiges
of slavery and racial violence, is flourishing once again in the
United States. After a moratorium on executions in the 1960s
and '70s, the execution of human beings by the state has become
"routine." Over 3,000 men, women and children are on death rows
throughout the nation waiting to be electrocuted, injected,
shot, hung or gassed.1
Those being executed and awaiting their deaths are no different from those selected for execution in the past: virtually
all are poor; about half are members of racial minorities; and
the overwhelming majority were sentenced to death for crimes
against white victims.2 Many suffer from severe mental impairments or limitations and many others were the victims of the most
brutal physical, sexual and psychological abuse during their
childhoods.3
The death penalty was declared unconstitutional in 1972 due
to arbitrariness and discrimination against racial minorities
and the poor.4 New capital punishment laws, supposedly designed
to prevent arbitrariness and discrimination, were upheld by the
1. Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. ,
at 1 (Summer 1995) (reporting that there were 3,028 persons under
sentence of death as of Aug. 31, 1995).
2. Id. at 1, 3 (reporting that over half of those under
death sentence are African-American, Latino, Native American or
Asian, and that in 82 percent of the cases in which executions
have been carried out, the victims were white).
3. See, e.g., Dorothy Otnow Lewis et al., Psychiatric,
Neurological and Psychoeducational Characteristics of 15 Death
Row Inmates in the United States, 145 Am. Jur. Psy . 838 (1986).
The author has observed the presence of these factors, virtually
without exception, in capital cases he has handled and supervised, as well as in cases in which he has consulted other lawyers.
4.
Page 1

Furman v. Georgia, 408 U.S. 238 (1972).

But race and poverty continue to deterSupreme Court in 1976.5
mine who dies. The poor are frequently represented by inept
court-appointed lawyers, who often fail to protect the rights of
their clients and fail to provide juries with critical information needed for the sentencing decision, leaving the accused
virtually defenseless.6
Prosecutors are given wide discretion
in deciding whether to seek the death penalty and juries are
given great discretion in deciding whether to impose it This
discretion provides ample room for racial prejudice to influence
whether the accused lives or dies.
Although African-Americans are the victims in half of the
murders that occur each year in the United States,7 eighty-five
percent of the condemned were sentenced to death for murders of
white persons.8 An analysis of twenty-eight studies by the U.S.
General Accounting Office found a "remarkably consistent" pattern
of racial disparities in capital sentencing throughout the country.9 A study in 1994 of death sentences in Harris County,
Texas, which has carried out more executions and sentenced more
people to death than most states,10 found that "Harris County has
sent blacks to death row nearly twice as often as whites during
the last ten years, a growing imbalance that eclipses the precivil rights days of 'Old Sparky' the notorious Texas electric
chair."11 In Florida, which has the nation's third largest death
5. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262
(1976).
6. For a discussion of the impact of poverty on the imposition of the death penalty due to the quality of representation
provided by court-appointed counsel, see 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).
7. Bureau of Justice Statistics, U.S. Dep't of Justice,
Sourcebook of Criminal Justice Statistics 1993, at 384, table
3.128 (Kathleen Maguire & Ann L. Pastore eds., 1993).
8.

See supra note 2.

9. General Accounting Office, Death Penalty Sentencing:
Research Indicates Pattern of Racial Disparities 5 (Feb. 1990).
10. At the end of February 1995, 37 persons sentenced to
death in Harris County had been executed, more than in any state
except Texas. Harris County accounts for 113 persons on Texas'
death row awaiting lethal injection. Tamar Lewin, Who Decides
Who Will Die? Even Within States It Varies, N.Y. Times , Feb. 23,
1995, at A1, A13. Only eleven states besides Texas have over 100
persons under death sentence. Death Row U.S.A., supra note 1.
11. Bryan Denson, Death Penalty: Equal Justice? The Houston
Post , Oct. 16, 1994, at A1.
Page 2

row,12 the Racial and Ethnic Bias Commission of the Florida
Supreme Court found that "the application of the death penalty in
Florida is not colorblind."13 A congressional study found stark
disparities in the use of the federal death penalty.14 Racial
disparities have been documented by other observers.15
12. Death Row U.S.A., supra note 1, at 18 (stating there
are 341 people on Florida's death row).
13. Report and Recommendation of the Florida Supreme Court
Racial and Ethnic Bias Study Commission, at xvi (Dec. 11, 1991).
See also Michael L. Radelet & Glenn L. Pierce, Choosing Those
Who Will Die: Race and the Death Penalty in Florida, 43 U. Fla.
L. Rev. 1 (1991); Foster v. State, 614 So. 2d 455 (Fla. 1992)
(affirming refusal to hold hearing on claim of racial
discrimination where evidence proffered showed prosecutors in Bay
County State Attorney's office were four times more likely to
charge first degree murder in cases involving white victims than
cases involving black victims; that of such cases that went to
trial, first degree murder convictions were 26 times more likely
in cases with white victims; and that even though blacks
constituted 40% of the murder victims in Bay County between 1975
and 1987, all 17 death sentences that were imposed were for
homicides involving white victims).
14. Staff Report by the Subcommittee on Civil and Constitutional Rights of the Committee of the Judiciary, U.S. House of
Representatives, Racial Disparities in Federal Death Penalty
Prosecutions 1988 -1994, H.R. 458, 103d Cong. 2d Sess. at 2 (Mar.
1994) [hereinafter House Subcommittee, Racial Disparities in
Federal Death Penalty Prosecutions].
15. In addition to the studies cited by the General Accounting Office in its report, supra note 9, see David C. Baldus,
et al. , Equal Justice and the Death Penalty (1990); Samuel R.
Gross & Robert Mauro , Death & Discrimination: Racial Disparities
in Capital Sentencing (1989); Bob Levenson & Debbie Salamore,
Prosecutors See Death Penalty in Black and White, The Orlando
Sentinel , May 24, 1992, at A1 (reporting that "[j]ustice ... is
not colorblind in Central Florida when it comes to the prosecution of first degree murder cases"); Jim Henderson and Jack
Taylor, Killers of Dallas Blacks Escape the Death Penalty, Dallas
Times Herald , Nov. 17, 1985, at 1 (accompanied by other stories
and charts demonstrating the relationship between race and imposition of the death sentence); David Margolick, In the Land of
Death Penalty, Accusations of Racial Bias, N.Y. Times , July 10,
1991, at A1 (describing racial disparities in the infliction of
the death penalty in Georgia's Chattahoochee Judicial Circuit,
which includes the city of Columbus); Paul Pinkham & Robin Lowenthal, The Color of Justice in Jacksonville: Killers of Blacks
get off Easier than Killers of Whites, The Florida Times-Union ,
Dec. 8, 1991, at D1. Thomas J. Keil & Gennaro F. Vito, Race and
the Death Penalty in Kentucky Murder Trials: 1976 - 1991, paper
Page 3

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: an African-American 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.16
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 . . . "17 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 "[s]uch a juror might also
be less favorably inclined toward [the defendant's] evidence of
mental disturbance as a mitigating circumstance."18
The Supreme Court also observed that "[m]ore subtle, less
consciously held racial attitudes" ¶ unconscious racism ¶ "could
also influence a juror's decision in [the] case."19 For example,
"[f]ear of blacks, which could easily be stirred up by the
violent facts of [the] crime, might incline a juror to favor the
death penalty."20
(..continued)
presented to Academy of Criminal Justice Sciences, Chicago (1994)
(finding that Blacks accused of killing whites had a higher than
average probability of being charged with a capital crime by the
prosecutor and being sentenced to death by the jury).
16. There has been a particularly pronounced racial disparity in the infliction of the death penalty for rape of white
victims by African- Americans. See Furman v. Georgia, 408 U.S.
238, 364 n.149 (1972) (Marshall, J., concurring); Maxwell v.
Bishop, 398 F.2d 138, 145 (8th Cir. 1968), vacated, 398 U.S. 262
(1970).
17.

Turner v. Murray, 476 U.S. 28, 35 (1976).

18.

Id.

19. Id. See also United States v. Heller, 785 F.2d 1524,
1527 (11th Cir. 1986) (observing that an individual may harbor
"certain negative stereotypes which, despite his protestations to
the contrary, may well prevent him or her from making decisions
solely on the facts and the law that our jury system requires.").
20. Turner, 476 U.S. at 35. The way in which such racial
prejudice may come into play in decision-making has been described in detail by many scholars. See, e.g., Peggy C. Davis,
Law as Microaggression, 98 Yale L.J. 1559, 1571 (1989) (describPage 4

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 believed that "blacks are violence prone or
morally inferior"21 may be less likely to seek the death penalty
in cases involving African-American victims and more likely to
seek the death penalty in cases involving African-American 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,
i 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. An African-American client may be seen as
"arrogant" or "uncooperative" due to the lawyer's racial stereotypes.22 A lawyer may not diligently try to save the life of one
believed to be inferior.
(..continued)
ing the tendency of people to make decisions based on "racial
stereotypes and assumptions"); Sheri Lynn Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611 (1985) (documenting tendency among whites to convict black defendants in instances where white defendants would be acquitted); Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal
Punishment, 74 Cornell L. Rev. 655, 708 (1989) (describing the
psychological tendency of predominantly white decision makers to
sympathize more with whites than blacks); Gary Peller, Race
Consciousness, 1990 Duke L.J. 758 (1990); Charles R. Lawrence,
The ID, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 Stan. L. Rev. 317 (1987); Francis C. Dane & Lawrence
S. Wrightsman, Effects of Defendants' and Victims' Characteristics on Jurors' Verdicts, in the Psychology of the Courtroom 104
- 06 (1982) (reporting that identification with a victim is
particularly pronounced and results in the most severe sentences
where the victim is of the same race, and the defendant is of a
different race from that of the jurors).
21.

Turner v. Murray, 476 U.S. 28, 35 (1976).

22. See e.g., Dobbs v. Zant, 720 F. Supp. 1566, 1577 (N.D.
Ga. 1989) (describing that a court-appointed defense lawyer,
after admitting his belief that blacks are less intelligent than
whites and have inferior morals, characterized his client as
"arrogant" and "uncooperative"), aff 'd, 963 F.2d 1519 (11th Cir.
1991), remanded on other grounds, 113 S. Ct. 835 (1993).
Page 5

Racial discrimination 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.23 These lawyers may fail to recognize and challenge the
role that race plays in determining who dies.24
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 law25 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.26
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
23.

See generally Bright, supra note 6.

24. See infra notes 200, 261-64 and accompanying text
(describing the failure of court-appointed lawyers to challenge
discrimination against African- Americans in composition of jury
pools).
25. See Derrick A. Bell , Race, Racism and American Law (3d
ed. 1992); A. Leon Higginbotham , In the Matter of Color: Race in
the American Legal Process (1978).
26. See infra text accompanying notes 186-191. The Racial
Justice Act was passed by the House of Representatives as part of
the 1994 Crime Bill, but was rejected in the Senate version of
the bill. It was not included in the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103 -322, 108 Stat. 1796
(1994), which was signed into law on September 14, 1994. 55
Crim. L. Rep. (BNA) 2305 (Aug. 31, 1994)
Page 6

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
decrying the evil of racial discrimination and proclaiming their
"unceasing efforts" to cure it.27 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."28
This article examines the historic relationship between
racial violence and the death penalty, describes some of the ways
in which racial prejudice continues to influence capital sentencing decisions, and discusses the failure of the courts to confront the racial bias that infects the criminal justice system.
II. "LEGAL LYNCHINGS"
The death penalty is a direct descendant of lynching and
other forms of racial violence and racial oppression in America.
From colonial times until the Civil War, the criminal law in
many states expressly differentiated between crimes committed by
and against blacks and whites.29 For example, Georgia law
provided that the rape of a white female by a black man "shall
be" punishable by death, while the rape of a white female by
anyone else was punishable by a prison term not less than two nor
more than twenty years.30 The rape of a black woman was
punishable "by fine and imprisonment, at the discretion of the
court."31
Disparate punishments ¶ exacted by the courts and by the mob
¶ based upon both the race of the victim and the race of the
27. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 309, 333
(1987) (describing "unceasing efforts" while finding that racial
disparities in capital sentencing do not violate the Eighth or
Fourteenth Amendments); Holland v. Illinois, 493 U.S. 474, 504
n.2, 511 (1990) (reiterating the "earnestness" of the Court's
"commitment to racial justice" while holding that the prosecutorial use of peremptory strikes against African-Americans did not
violate the Sixth Amendment's right to an impartial jury).
28. Stephen Reinhardt, Riots, Racism, and the Courts,
quoted in Harper's Magazine , Aug. 1992, at 15, 16.
29. A. Leon Higginbotham, Jr. , In the Matter of Color:
Race in the American Legal Process 256 (1978).
30.

Id.

31. Id. See also McCleskey, 481 U.S. at 329 -32 (Brennan,
J., dissenting).
Page 7

defendant continued in practice after the abolition of slavery.
At least 4,743 people were killed by lynch mobs.32 More than
ninety percent of the lynchings took place in the South, and
three-fourths of the victims were African-Americans.33 The threat
that Congress might pass an anti-lynching statute in the early
1920s led Southern states to "replace lynchings with a more
'[humane] . . . method of racial control' ¶ the judgment and
imposition of capital sentences by all-white juries."34 As one
historian observed:
Southerners . . . discovered that lynchings were
untidy and created a bad press. . . . [L]ynchings were
increasingly replaced by situations in which the Southern legal system prostituted itself to the mob's demand. Responsible officials begged would-be lynchers
to 'let the law take its course,' thus tacitly promising that there would be a quick trial and the death
penalty . . . . [S]uch proceedings 'retained the essence of mob murder, shedding only its outward forms'.35
The process of "legal lynchings" was so successful
that in the 1930s, two-thirds of those executed were
black.36
Powell v. Alabama,37 decided by the Supreme Court in 1932,
involved nine young African-Americans who were charged in Scottsboro, Alabama, with the rape of two white women, the classic case
for a lynching or the death penalty.38 The youths were tried in
groups in three trials while mobs outside the courtroom demanded
the death penalty.39 The accused were represented by two lawyers;
32. These numbers come from the archives at Tuskegee University, where lynchings have been documented since 1882. Mark
Curriden, The Legacy of Lynching, Atlanta J. & Const ., Jan. 15,
1995, at M1.
33.

Id.

34. Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of
Peremptory Challenges, 76 Cornell L. Rev. 1, 80 (1990) (quoting
Michael Belknap , Federal Law and Southern Order 22- 26 (1987)).
35. Dan T. Carter , Scottsboro: A Tragedy of the American
South 115 (rev. ed. 1992).
36.

Colbert, supra note 34, at 80.

37.

287 U.S. 45 (1932).

38. For excellent accounts of the case of the "Scottsboro
boys," see James Goodman , Stories of Scottsboro (1994); and
Carter , supra note 35.
39.
Page 8

Carter , supra note 35, at 20 - 48.

one was a drunk and the other was senile.40 Allwhite, all-male
juries sentenced the accused to death.41 When there was a
national outcry about the injustice of such summary trials with
only perfunctory legal representation, the people of Scottsboro
did not understand the reaction. After all, they did not lynch
the accused; they gave them a trial.42
In one of many examples of legal lynchings, a man was hung
immediately after a trial in Kentucky that lasted less than an
hour.43 The Louisville Courier-Journal "tried to put the best
light on the execution," saying that although it was a little
hasty, at least there was not a lynching.44 The paper also
observed that since a Negro had raped a white woman, "no other
result could have been reached, however prolonged the trial."45
As racial violence was achieved increasingly through the
criminal courts, Georgia became the nation's primary executioner,
carrying out the most executions in the twentieth century before
the death penalty was declared unconstitutional in 1972.46
Between 1924 and 1972, Georgia executed 337 black people and 75
white people.47
The death penalty was held unconstitutional in Furman v.
40.

Id. at 18 -19, 22.

41.

Id. at 20 - 48; Powell, 287 U.S. at 50.

42. Carter , supra note 35 at 104 -16; Goodman , supra note
38 at 47-50, 297- 98.
43. George C. Wright , Racial Violence in Kentucky 1865
-1940; Lynchings, Mob Rule, and "Legal Lynchings" 252 (1990).
44. Id. at 253. The editorial read as follows: "The fact,
however, that Kentucky was saved the mortification of a lynching
by an indignant multitude, bent upon avenging the innocent
victim of the crime, is a matter for special congratulation."
Id.
45. Id. Wright describes other legal lynchings in Kentucky. Id. at 251-305.
46. The Pace of Executions: Since 1976 ... and Through
History, N.Y. Times , Dec. 4, 1994, s 4, at 3. Georgia carried
out 673 executions between 1900 and the end of 1994, the most of
any state during this period. Id.
47. Prentice Palmer & Jim Galloway, Georgia Electric Chair
Spans 5 Decades, The Atlanta J. , Dec. 15, 1983, at 15A. After
adopting electrocution as a means of execution in 1924, Georgia
put more people to death than any state and "set national records
for executions over a 20 -year period in the 1940s and 1950s."
Id.
Page 9

Georgia48 because of discrimination and arbitrariness in its
infliction.49 New death penalty statutes were enacted almost
immediately by a number of states.50 Some of those statutes were
upheld by the Supreme Court in 1976.51 However, the new statutes
have failed to end the influence of racial prejudice in the use
of the death penalty.
III. RACIAL DISCRIMINATION AFTER FURMAN
Most death penalty schemes adopted by the states after
Furman v. Georgia provide for the death penalty in most first
degree and felony murders. Any murder involving a robbery,
arson, burglary, rape, or kidnapping may be prosecuted as a
capital case.52 In addition, death may be imposed for any other
48.

408 U.S. 238 (1972).

49. The five justices that made up the majority in Furman
concluded that the death penalty was being imposed so discriminatorily, id. at 249 -52 (Douglas, J., concurring), id. at 310
(Stewart, J., concurring), id. at 364 - 66 (Marshall, J., concurring), so arbitrarily, id. at 291- 95 (Brennan, J., concurring),
id. at 306 (Stewart, J., concurring), and so infrequently, id. at
311 (White, J., concurring), that any given death sentence was
cruel and unusual. Justice Brennan also concluded that because
"the deliberate extinguishment of human life by the State is
uniquely degrading to human dignity," it is inconsistent with
"the evolving standards of decency that mark the progress of a
maturing society." Id. at 291, 270.
50. Gregg v. Georgia, 428 U.S. 153, 179 - 80 & n.23 (1976)
(noting that at least 35 states passed death penalty statutes).
51. The Supreme Court upheld the statutes enacted by Florida, Georgia and Texas. Proffitt v. Florida, 428 U.S. 242 (1976);
Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S.
262 (1976). The Court struck down the statutes adopted by North
Carolina and Louisiana. Woodson v. North Carolina, 428 U.S. 280
(1976); Roberts v. Louisiana, 428 U.S. 325 (1976). The first
execution after the Supreme Court allowed the resumption of
capital punishment was in 1977, when Gary Gilmore was killed by a
firing squad in Utah. Jon Nordheimer, Gilmore is Executed After
Stay is Upset; 'Let's Do It?' he said, N.Y. Times , Jan. 18,
1977, at A1.
52. See, e.g., Ga. Code Ann . ss 16 -5 -1, 17-10 -30
(Michie 1994); Fla. Stat. Ann. s 921.141 (West 1985 & Supp.
1994); Ala. Code s 13A-5 - 40 (1994). For a summary of capital
offenses by state, see Bureau of Justice Statistics , Capital
Punishment 1993 Table 1, at 5 (Dec. 1994). Under many capital
statutes, the death penalty may also be imposed for the murder of
a police or correctional officer, contract murders, murders
related to drug offenses, and murders committed by persons with a
previous conviction for a violent crime. Id.
Page 10

"heinous, atrocious or cruel"53 or "horrible" murders,54 which of
course describe almost all murders. But no crime ¶ no matter how
heinous ¶ must be punished by death. In most states, the
sentence is determined by the imprecise and wholly subjective
consideration of aggravating and mitigating factors. The breadth
of the death penalty statutes and the unfettered discretion given
to prosecutors and juries provide ample room for racial prejudice
to influence whether death is sought or imposed.55 As a result,
"[r]ace plays an especially influential role in capital sentencing decisions."56
The criminal courts are the institutions least affected by
the Civil Rights Movement that brought changes to many American
institutions in the last forty years. Judges and prosecutors are
still elected in judicial circuits that are drawn to dilute the
voting strength of racial minorities.57 Thus, even in many areas
with substantial minority populations, all of the judges and
prosecutors are white.58 In Georgia, for example, all of the
53.
1994).
54.

Fla. Stat. Ann. s 921.141(5)(h) (West 1985 & Supp.
Ga. Code Ann . §17-10 -30(b)(7) (Michie 1994).

55. The Supreme Court has observed that "[b]ecause of the
range of discretion entrusted to a jury in a capital sentencing
hearing, there is a unique opportunity for racial prejudice to
operate ...." Turner v. Murray, 476 U.S. 28, 35 (1985). However, as will be discussed in part IV, infra, the Court has refused
to require procedures and remedies adequate to identify and cure
the influence of race.
56. Blair v. Armontrout, 916 F.2d 1310, 1351 (8th Cir.
1990) (Heaney, J., concurring and dissenting).
57. Nipper v. Smith, 39 F.3d 1484, 1537- 41 (11th Cir.
1994) (en banc); League of United Latin American Citizens, Counsel No. 434 v. Clements, 999 F.2d 831, 904 -18 (5th Cir. 1993)
(en banc) (King, J., dissenting), cert. denied, 114 S. Ct. 878
(1994). Ruth Marcus, Does Voting Rights Law Cover Judicial
Elections?, Wash. Post , Apr. 21, 1991, at A4.
58. Mark Curriden, Racism Mars Justice in U.S. Panel Reports, Atlanta J. & Const ., Aug. 11, 1991, at D1, D3 (observing
that only 6 of Georgia's 134 Superior Court judges were African-American, and those 6 were in 3 judicial circuits); Associated
Press , Second Black Alabama Supreme Court Justice Sworn In,
Columbus (Ga.) Ledger-Enquirer , Nov. 2, 1993, at B2 (noting that
there was only 1 African-American among Alabama's 17 appellate
court judges, and only 12 blacks among the state's 255 circuit
and district court judges); Rorie Sherman, Is Mississippi Turning?, Nat'l. L. J. , Feb. 20, 1989, at 1, 24 (only 2.6 % of all
state court judges in the United States are black).
Page 11

elected district attorneys are white.59 Many other states also
have no or very few African-Americans as prosecutors.60 Members
of racial minorities are often underrepresented in jury pools and
excluded in the jury selection process.61 Often, the only member
of a racial minority who participates in the process is the
accused. Racial disparities are still apparent in all types of
sentencing.62 The perfunctory capital trial ¶ the legal lynching
59. Mark Curriden, Racism Mars Justice in U.S. Panel Reports, supra note 58, at D3.
60. Jesse Smith & Robert Johns, eds., Statistical record of
Black America 774 -75 (3d ed. 1995) (after listing the number of
African-Americans as judges, magistrates and justices of the
peace, showing no African-American for "other judicial officials"
for Arkansas, Connecticut, Florida, Illinois, Indiana, Michigan,
Oklahoma, South Carolina, and Texas).
61. American Bar Association Task Force on Minorities and
the Justice System, Achieving Justice in a Diverse America at 15
(1992).
62. See, e.g., State v. Russell, 477 N.W.2d 886 (Minn.
1991) (finding equal protection violation due to more severe
sentences imposed for possession of crack cocaine than for
powdered cocaine where 96.6% of those charged with possession of
crack cocaine are black and 79.6% of those charged with possession of powdered cocaine are white); Stephens v. State, No
S94A1854, 1995 WL 116292 (Ga. S. Ct. Mar. 17, 1995), withdrawn
and superseded, Stephens v. State, 456 S.E.2d 560 (Ga. 1995)
(stating that of 375 persons serving life sentences for a second
conviction for sale or possession with intent to distribute
certain narcotics, 98.4% are African-Americans). See, e.g.,
Samuel Myers, Jr., Racial Disparity in Sentencing: Can Sentencing
Reforms Reduce Discrimination in Punishment?, 64 U. Colo. L. Rev.
781 (1993); Gary Kleck, Racial Discrimination in Criminal Sentencing, 46 Am. Sociological Rev . 783 (1981); Dennis Cauchon,
Sentences for Crack Called Racist, USA Today , May 26, 1993, at
1A; Curriden, supra note 58 at D1; Ruth Marcus, Racial Bias
Widely Seen in Criminal Justice System, Wash. Post , May 12,
1992, at A4; Richard A. Berk & Alec Campbell, Preliminary Data on
Race and Crack Charging Practices in Los Angeles, 6 Fed. Sent. R.
36 (1993); Douglas C. McDonald & Kenneth E. Carlson, Why Did
Racial/Ethnic Sentencing Differences in Federal District Courts
Grow Larger Under the Guidelines?, 6 Fed. Sent. R. 223 (1994);
Charles J. Ogletree, The Significance of Race in Federal Sentencing, 6 Fed. Sent. R. 229 (1994); Rhonda Cook, Sentence Disparities are the Rule in Ga., Atlanta J. & Const. , Dec. 3, 1990, at
A1; Tracy Thompson, Blacks Sent to Jail More Than Whites for Same
Crimes, Atlanta J. & Const. , Apr. 30, 1989, at 1A (with related
stories and charts); Tracy Thompson, Justice in Toombs Circuit
not Colorblind, Some Say, Atlanta J. & Const. , Dec. 13, 1987, at
Page 12

¶ is not a thing of the past. Those facing the death penalty
still receive token representation by courtappointed lawyers in
cases infected by racism.
A. Tolerance of Racial Discrimination in the Criminal Courts
Wilburn Dobbs, an African-American who faces execution in
Georgia for the murder of a white man, was referred to at his
trial as "colored" and "colored boy" by the judge and defense
lawyer and called by his first name by the prosecutor.63 Two of
the jurors who sentenced Dobbs to death for the murder admitted
after trial to using the racial slur "nigger."64 Dobbs was tried
only two weeks after being indicted for murder and four other
offenses. Dobbs was assigned a court-appointed lawyer who did
not know for certain until the day of trial that he was going to
represent Dobbs.65 The lawyer filed only one motion, a demand for
a copy of the accusation and a list of witnesses.66 Counsel
sought a continuance on the morning of trial,67 stating to the
trial court that he was "not prepared to go to trial"68 and he was
"in a better position to prosecute the case than defend it."69
Nevertheless, the trial court denied the motion and the case
proceeded to trial.70 The federal district court described the
defense lawyer's attitude towards African-Americans as follows:
(..continued)
1A (three other articles appeared on the following days).
63. Dobbs v. Zant, 720 F. Supp. 1566, 1578 (N.D. Ga. 1989),
aff 'd, 963 F.2d 1403 (11th Cir. 1991), rev'd, 113 S. Ct. 835
(1993).
64.

Id. at 1576.

65. Trial counsel testified "[t]here was uncertainty all
the way up until the trial began as to whether or not I would
represent him." Transcript of State Habeas Corpus Hearing of
Sept. 28, 1977, at 55, included in Record on Appeal, Dobbs v.
Zant, 963 F.2d 1403 (11th Cir. 1991), rev'd and remanded, 113 S.
Ct. 835 (1993). Defense counsel testified before the federal
court: "As a matter of fact, I didn't know for sure what he was
going to be tried for." Transcript of trial at 85, included as
part of the Record on Appeal in Dobbs, 963 F.2d 1403.
66. Record on Appeal to Georgia Supreme Court at 24, included in the Record on Appeal in Dobbs, 963 F.2d 1403.
67. Transcript of trial at 2, included in the Record on
Appeal in Dobbs, 963 F.2d 1403.
68.

Id. at 7.

69.

Id. at 5.

70.

Id. at 10.

Page 13

Dobbs' trial attorney was outspoken about his
views. He said that many blacks are uneducated and
would not make good teachers, but do make good basketball players. He opined that blacks are less educated
and less intelligent than whites either because of
their nature or because "my granddaddy had slaves." He
said that integration has led to deteriorating neighborhoods and schools and referred to the black community in Chattanooga as "black boy jungle." He strongly
implied that blacks have inferior morals by relating a
story about sex in a classroom. He also said that when
he was young, a maid was hired with the understanding
that she would steal some items. He said that blacks
in Chattanooga are more troublesome than blacks in
Walker County [Georgia]. . . .
The attorney stated that he uses the word "nigger"
jokingly.71
Dobbs was convicted and sentenced to death in a trial that
lasted only three days. During the penalty phase of Dobbs'
trial, when the jury could have heard anything about his life,
background and any reasons Dobbs should not have been sentenced
to death,72 the lawyer presented no evidence.73 For a closing
argument he read part of Justice Brennan's concurring opinion in
Furman v. Georgia,74 which expressed the view that the death
penalty was unconstitutional and could not be carried out.75
Thus, rather than emphasizing to the jury the enormous decision
it had to make about whether Dobbs was going to live or die, the
lawyer suggested that because the death penalty would never be
carried out, the jury's decision was not important.76
The federal courts determined that the racial prejudice of
71.

Id. at 1577.

72. Any aspect of the life and background of the accused
may be considered by the sentencer as a reason to impose a sentence less than death. Penry v. Lynaugh, 492 U.S. 302 (1989);
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982); Lockett v. Ohio,
438 U.S. 586, 604 (1978).
73. Transcript of trial at 503 - 05, included as part of
the Record on Appeal in Dobbs, 963 F.2d 1403.
74.

408 U.S. 238, 257-306 (1972).

75. Transcript of Closing Argument, included as part of the
Record on Appeal in Dobbs v. Zant , 963 F.2d 1403 (11th Cir.
1991).
76. A prosecutor is not allowed to make an argument which
would diminish the jury's sense of responsibility for its life
and death decision. See Caldwell v. Mississippi, 472 U.S. 320,
328 -30 (1985).
Page 14

the judge, prosecutor, defense lawyer and jurors in the Dobbs
case did not require his death sentence to be set aside. The
Court of Appeals found that "[a]lthough certain of jurors' statements revealed racial prejudice, no juror stated that [he or she]
viewed blacks as more prone to violence than whites," or as
morally inferior to whites.77 Since neither the trial judge nor
defense lawyer decided the penalty, the Court held that "apart
from the trial judge's and defense lawyer's references to Dobbs
as 'colored' and 'colored boy,' it cannot be said that the trial
judge's or the defense lawyer's racial attitudes affected the
jurors' sentencing determination."78 After a remand from the
United States Supreme Court,79 the district court again held that
Wilburn Dobbs did not receive incompetent representation despite
the lawyer's racism.80
Dobbs is only one of many cases that starkly illustrates
that racial discrimination not acceptable in any other area of
American life today is tolerated in criminal courts. The use of
a racial slur may cost a sports announcer his job,81 but there
have been capital cases in which judges, jurors and defense
counsel have called an African-American defendant a "nigger" with
no repercussions for anyone except the accused. For example,
parents of an African-American defendant were referred to as the
"nigger mom and dad" by the judge in a Florida case.82 The judge
did not lose his job; the Florida Supreme Court merely suggested
that judges should avoid the "appearance" of impropriety in the
future.83
Similarly, a death sentence was upheld in a Georgia case
where jurors used racial slurs during their deliberations.84 The
court reasoned that the evidence "shows only that two of the
twelve jurors possessed some racial prejudice and does not estab77. Dobbs v. Zant, 963 F.2d 1403, 1407 (11th Cir. 1991),
rev'd and remanded, 113 S. Ct. 835 (1993).
78.

Id. at 1407- 08.

79.

Dobbs v. Zant, 113 S. Ct. 835 (1993) (per curiam).

80. Dobbs v. Zant, N.D. Ga. No. 4:80 -cv-247-HLM (Order of
July 29, 1994).
81. See CBS Drops Commentator, N.Y. Times , Jan. 17, 1988,
at A1. See also Richard Harwood, Pressure from the 'Isms,' Wash.
Post , Feb. 11, 1990, at C6; Racial Remarks Cost Dodger Official
His Job, N.Y. Times , Apr. 9, 1987 at A1.
82.

Peek v. Florida, 488 So. 2d 52, 56 (Fla. 1986).

83.

Id.

84. Spencer v. State, 398 S.E.2d 179 (Ga. 1990), cert.
denied, 500 U.S. 960 (1991).
Page 15

lish that racial prejudice caused those two jurors to vote to
convict [the defendant] and sentence him to die."85 No state or
federal court so much as held a hearing on the racial prejudice
which infected the sentencing of Henry Hance before he was
executed by Georgia in 1994, even though jurors signed affidavits
swearing racial slurs had been used during deliberations.86 In at
least five capital cases in Georgia, the accused were referred to
with racial slurs by their own lawyers at some time during the
court proceedings.87
It is the publicly announced policy of Ed Peters, the District Attorney of Jackson, Mississippi, to "get rid of as many"
black citizens as possible when exercising his peremptory strikes
to select a jury.88 As a result of this "policy" by a government
official, Leo Edwards, an African-American, was sentenced to
death by an all-white jury, even though he was tried in a community which was thirty-four percent African-American.89 The federal
courts rejected Edwards' challenge to Peters' discrimination90 and
Edwards was executed in 1989.91 In what other area of American
life may a public official openly espouse and carry out a policy
of "getting rid of " people based upon their race and have it
approved by the courts?
The practice of total exclusion from jury service on the
85.

Id. at 185.

86. Hance v. Zant, Super. Ct. of Butts Co., Ga., No. 93
-V-172 (affidavits of juror Patricia LeMay & Gayle Lewis
Daniels). See also Hance v. Zant, 696 F.2d 940 (11th Cir. 1983),
cert. denied, 463 U.S. 1210 (1994) (Blackmun, J., dissenting from
denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment', N.Y. Times , Mar. 27, 1994, at D17; Bob Herbert, Jury Room
Injustice, N.Y. Times , Mar. 30, 1994, at A15.
87. Charlie Young, Curfew Davis, George Dungee, Terry Lee
Goodwin and Eddie Lee Ross were all referred to as "niggers" by
their defense lawyers at some point in the trials during which
they were sentenced to death. Transcript of Opening and Closing
Arguments, Dungee v. Kemp, 778 F.2d 1482 (11th Cir 1985), decided
sub nom. Isaacs v. Kemp, 778 F.2d 1482 (11th Cir. 1985), cert.
denied, 476 U.S. 1164 (1986); Goodwin v. Balkcom, 684 F.2d 794,
805 n.13 (11th Cir. 1982). See also Ex parte Guzmon, 730 S.W.2d
724, 736 (Tex. Crim. App. 1987) (defense counsel referred to his
own client, a Salvadoran man, as a "wet back" in front of all-white jury).
88.

Edwards v. Scroggy, 849 F.2d 204, 207 (5th Cir. 1988).

89.

Id.

90.

Id. at 208.

91.

Death Row USA, supra note 1 at 6.

Page 16

basis of race is not limited to the district attorney in Jackson.
A prosecutor in Chambers County, Alabama, used twenty-six jury
strikes against twenty-six African-Americans who were qualified
for jury duty in order to get three all-white juries in a case
involving Albert Jefferson, a mentally retarded African-American,
accused of a crime against a white victim.92 At the time of
Jefferson's trial, marriage records at the courthouse in Chambers
County were kept in books engraved "white" and "colored."93 During
state post-conviction proceedings, lawyers representing Jefferson
discovered lists which had been made by the prosecutor prior to
jury selection in which the prosecutor divided prospective jurors
into four lists ¶ "strong," "medium," "weak," and "black."94 A
state circuit judge in Chambers County ruled that no racial
discrimination had occurred in the selection of the juries.95
Some courts are indifferent to even the most blatant appearances of racial bias. African-Americans facing the death penalty
in Georgia usually appear before a white judge sitting in front
of the Confederate battle flag. Georgia adopted its state flag
in 195696 to symbolize its defiance of the Supreme Court's
decision in Brown v. Board of Education.97 As observed one
federal district court in Georgia
The predominant part of the 1956 flag is the Confederate battle flag, which is historically associated
with the Ku Klux Klan. The legislators who voted for
the 1956 bill knew that the new flag would be interpreted as a statement of defiance against federal desegregation mandates and an expression of anti-black
feelings.98 The new flag was designed to carry the
92. Alabama v. Jefferson, Cir. Ct. Chambers County No. CC81-77 (Order of Oct. 2, 1992). One jury was for a hearing on
Jefferson's mental competence to stand trial, another was for
guilt and the third was for sentencing. Id.
93. Alabama County Still Records Marriages by Race, Atlanta
J. & Const ., July 21, 1991, at A2.
94.

Alabama v. Jefferson, Order of Oct. 2, 1992, supra note

92.
95. Id. The court held there were race neutral reasons for
each of the strikes of African-Americans.
96.

Ga. Code Ann. §50 -3 -1 (Michie 1994)

97. 347 U.S. 483 (1954) (holding that racial segregation in
the public schools violates the Equal Protection Clause); Brown
v. Board of Education, 349 U.S. 294, 300 (1955) (requiring that
desegregation of the public schools proceed "with all deliberate
speed").
98.
Page 17

Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga.

message that Georgia "intend[s] to uphold what [it]
stood for, will stand for, and will fight for" ¶ namely, state-sponsored commitment to black subordination
and the denial of equal protection of the laws to
Georgia's African-American school children.99 Although
it is well recognized that the flag serves as "a visual
focal point for racial tensions"100 and symbolizes
defiance of the principle of equal protection under
law, it is displayed in most Georgia courtrooms.
B. Discrimination in the Exercise of Discretion
Members of racial minorities have long been excluded from
being prosecutors, judges, jurors, lawyers, and from holding
prominent positions in law enforcement. A typical scene in a
Georgia courtroom was described as follows:
Four black men stood before a Cobb County judge
recently asking for bond to be set in their cases, all
involving drug charges. After reviewing each case, the
judge ordered them all held without bond until trial.
Virtually everyone else in the courtroom ¶ the judge,
two prosecutors, five defense lawyers, law clerks and
bailiff ¶ were white people. "If [my son] had been
white, he'd be coming home," said the mother of one
(..continued)
1995). See also Julius Chambers, Protection of Civil Rights: A
Constitutional Mandate for the Federal Government, 87 Mich. L.
Rev. 1599, 1601 n.9 (1989).
99. Jim Auchmutey, Unraveling the Flag: A Guide to Rebel
Colors, Atlanta J. & Const. , Sept. 29, 1991, at M1, M8 (quoting
state representative Denmark Groover). See also Miller Throws in
Towel on Flag, Columbus Ledger-Enquirer , Mar. 10, 1993, at A1.
Governor Marvin Griffin delivered the same message of defiance
during his State of the State address in 1956 stating: "All
attempts to mix the races whether they be in the classrooms, on
the playgrounds, in public conveyances, [or] in any other area of
close contact imperil the mores of the South." Mark Sherman,
Pledging Allegiances at Flag Forum, Atlanta J. & Const. , Jan.
29, 1993, at G1, G6.
100. Augustus v. School Board of Escambia County, 507 F.2d
152, 155 (5th Cir. 1975). As one court observed:
To some, [the flag] represents the undeniable fact that
Georgia was a member of the Confederacy and did secede from the
Union. The flag may also represent southern heritage, the old
South, or values of independence. Undeniably, to others it represents white supremacy, rebellion, segregation, and discrimination. The court is not prepared to say that any of these perspectives are incorrect. The only thing that is clear is what
the flag is not: a symbol of unity for Georgians. Coleman, supra
note 98, at 1569.
Page 18

defendant. "You saw what happened in there. It resembled some kind of Klan meeting." While the Cobb
judge's handling of the case was not unusual, neither
was the mother's reaction.101
Things are no different in many other courtrooms throughout
the nation. The criminal justice system in Jacksonville, Florida
was described as follows:
Often the only black faces involved in Jacksonville murder cases belong to the victim and the killer.
In a city where most murders are committed by
blacks against other blacks, the faces of law and order
are overwhelmingly white.
There are:
No black felony judges, the only circuit judges to
handle homicides.
No black members of the Public Defender Office homicide
team.
Two black prosecutors out of 14 homicide-team members
and supervisors at the State Attorney's Office.
Four black homicide detectives and supervisors out of
26 at the Jacksonville's Sheriff 's Office.102
Thus, members of racial minorities often do not participate
in the highly subjective decisions that lead to the imposition
of the death penalty. Such decisions are frequently made by
persons who are hostile to, or at the very least indifferent or
insensitive to, the minority community.
1. Discretion Exercised by Law Enforcement Officials and
Prosecutors
The most important decisions that may determine whether the
accused is sentenced to die are those made by the prosecutor.
It is the prosecutor who decides whether to seek the death
penalty, and whether to resolve the case with a plea bargain for
a sentence less than death. In many jurisdictions, these
critical decisions are made by one white man, the elected
district attorney, with no input from the community. Even where
more than one person decides, there may be no representation for
the minority community. For example, in Orange County, the
jurisdiction which ranks third in sending people to California's
death row, a panel of prosecutors composed exclusively of white
males decides whether the death sentence will be sought in a
case.103 Some prosecutors seek the death penalty frequently.
101.

Curriden, supra note 58, at D1, D3.

102. See generally Paul Pinkham & Robin Lowenthal, Getting
more Minorities Involved ... Fosters Respect for the System, The
Florida Times Union , Dec. 10, 1991, at A1.
103. Rene Lynch, Deciding Life or Death for O.C.'s Worst
Murderers, L.A. Times , Feb. 23, 1994, at A1.
Page 19

Some hardly ever seek it. There are no state-wide standards to
govern when the death penalty is sought. Each local district
attorney sets his or her own policy in deciding which cases will
be prosecuted as death cases.
In most jurisdictions with the death penalty, all murders
accompanied by another felony, as well as all murders considered
"heinous, atrocious or cruel" or "outrageously and wantonly
vile, horrible and inhuman," may be prosecuted as capital
cases.104 From among the many cases where death could be sought,
the local district attorney decides which few will actually be
prosecuted as capital cases. For the white men who usually make
these decisions in judicial districts all over the country, the
crime may seem more heinous or horrible if the victim is a
prominent white citizen. As one scholar has observed: "The
life-and-death decision is made on trivial grounds, and tends to
reflect the community's prejudices."105
Race may also influence the decision to seek the death
sentence in more subtle ways. Prosecutors make the decision
whether to seek the death penalty based in part on the strength
of the evidence brought to them by law enforcement in each case.
Often, the amount of available evidence differs because the
local sheriffs and police departments investigate crime in the
white community much more aggressively than crime in the black
community.106 While massive searches involving the police, army
units, and even the Boy Scouts may occur when there is a crime
against a white person,107 nothing more than a missing person
104.

See supra notes 52-54 and accompanying text.

105. Rick Bragg, Two Crimes, Two Punishments, N.Y. Times ,
Jan. 22, 1995, at 1 (quoting Franklin Zimring, Director of the
Earl Warren Legal Institute at the University of California at
Berkeley).
106. Studies and cases documenting discriminatory practices
by police against racial minorities are collected and discussed
by Charles J. Ogletree, Does Race Matter in Criminal Prosecutions, Champion , July 1991, at 7, 10 -12. Even before the
notorious Rodney King case and the Mark Fuhrman tapes, there was
concern about the racial attitudes of the police department in
Los Angeles. See Los Angeles v. Lyons, 461 U.S. 95, 116 n.3
(1983) (Marshall, J., dissenting) (noting that although only 9 %
of the residents of Los Angeles are black males, they have accounted for 75 % of the deaths resulting from chokeholds by
police).
107. See, e.g., Carl Cannon, Abducted Girl Found Slain Near
her Columbus Home, Columbus Ga. Ledger-Enquirer , July 17, 1977,
at 1 (describing search for missing white victim by police officers, "truckloads of Military Policemen, trained dogs, an Army
helicopter, and troops of Boy Scouts").
Page 20

report may be completed when a black citizen disappears.108 This
disparity in the investigative treatment of cases results in a
disparity of evidence available to prosecute the cases. Thus,
racial discrimination against crime victims by police departments
results in the prosecutor having stronger evidence with which to
justify seeking the death penalty in white victim cases and not
seeking it in cases where the victim is a minority.
As a result of these influences, many cases in which prosecutors decide to seek the death penalty are indistinguishable
from hundreds of other murder cases in which the death penalty
is not sought. For example, most tragically, there are many
convenience store robberies that result in a loss of life. Only
a handful are prosecuted as death cases. A case involving a
battered woman with no criminal record who kills her abusive
spouse is typically not a death penalty case in most parts of the
country. However, the prosecutor in Talladega, Alabama, has
obtained death sentences for at least two battered women for
their roles in killing their abusers.109 Of course, there are
many other examples of cases which are eligible for the death
penalty, but are seldom prosecuted as capital cases.
An investigation into why some cases are treated as capital
cases when other similar cases are not will almost always reveal
the influence of race, class, and politics. Often, there is
more publicity and greater outrage in the community over an
interracial crime than other crimes. Community outrage, the need
to avenge the murder because of the prominence of the victim in
the community, the insistence of the victim's family on the death
penalty, the social and political clout of the family in the
community, and the amount of publicity regarding the crime are
often far more important in determining whether death is sought
than the facts of the crime or the defendant's record and background.
For example, an investigation of all murder cases prosecuted
in Georgia's Chattahoochee Judicial Circuit from 1973 to 1990
revealed that in cases involving the murder of a white person,
prosecutors often met with the victim's family and discussed
108. For example, after an African-American youth disappeared in Columbus, Georgia, he was first reported missing.
Later his father was told a body had been found but it could not
be identified because it was so badly decomposed. Two weeks
later, the police told the father the body was definitely that
of his son, who had been stabbed to death. Transcript of hearing
held on Sept. 1- 14, 1991, Sept. 12, 1991, at 176-177, State v.
Brooks, Indictment Nos. 3888, 54606, on appeal, 415 S.E.2d 903
(Super. Ct. of Muscogee Co., Ga. 1992) [hereinafter Hearing on
Racial Discrimination].
109. Ex parte Haney, 603 So. 2d 412 (Ala. 1992); Walker v.
State, 586 So. 2d 49 (Ala. Crim. App. 1991), after remand, 611
So. 2d 1133 (Ala. Crim. App. 1992).
Page 21

whether to seek the death penalty.110 In a case involving the
murder of the daughter of a prominent white contractor, the
prosecutor contacted the contractor and asked him if he wanted to
seek the death penalty.111 When the contractor replied in the
affirmative, the prosecutor said that was all he needed to
know.112 He obtained the death penalty at trial.113 He was
rewarded with a contribution of $5,000 from the contractor when
he successfully ran for judge in the next election.114 The
contribution was the largest received by the District Attorney.115
There were other cases in which the District Attorney issued
press releases announcing that he was seeking the death penalty
after meeting with the family of a white victim.116 But
prosecutors failed to meet with African-Americans whose family
members had been murdered to determine what sentence they wanted.
Most were not even notified that the case had been resolved.117
As a result of these practices, although African-Americans were
the victims of sixty-five percent of the homicides in the
Chattahoochee Judicial Circuit, eighty-five percent of the
capital cases in that circuit were white victim cases.118
110. Hearing on Racial Discrimination, supra note 108,
Transcript of Sept. 12, 1991, at 67-69. The evidence is described in David Margolick, In Land of Death Penalty, Accusations
of Racial Bias, N.Y. Times , July 10, 1991, at A1; and Death
Penalty Info. Ctr., Chattahoochee Judicial District: The Buckle
of the Death Belt 10 (1991).
111. Transcript of Hearing at 38, Davis v. Kemp, Super. Ct.
of Butts Co., Ga., (1988) (No. 86 -V- 865) (testimony of James
Isham, father of the victim).
112.

Id.

113. Davis v. State, 340 S.E.2d 869, cert. denied, 479 U.S.
871 (1986).
114. Clint Claybrook, Slain Girl's Father Top Campaign
Contributor, Columbus Ledger-Enquirer , Aug. 7, 1988, at B1.
115.

Id.

116. See, e.g., Phil Gast, District Attorney Criticizes
Court for Rejecting Sentence, Columbus Enquirer , Sept. 17, 1983
at A1, A2.
117. Hearing on Racial Discrimination, supra note 108,
Transcript of Sept. 12, 1991 at 178, 184 - 85, 192- 93, 197,
199-200.
118. See Defense Exhibit 1A, admitted at Hearing on Racial
Discrimination, supra note 108.
Page 22

2. Exclusion of Minority Persons from Juries
The prosecutor's decision to seek the death penalty may
never be reviewed by a minority juror. Many capital cases are
tried in white flight suburban communities where there are so few
minority persons in the community that there is little likelihood
the minority community will be represented on the jury. Counties
like Baltimore County, Maryland, and Cobb County, Georgia, account for a disproportionately high number of persons sentenced
to death in those states.119 But even in communities where there
is a substantial minority population, prosecutors are often
successful in preventing or minimizing participation by minorities.
During jury selection for a capital trial, the judge or
prosecutor asks potential jurors if they are conscientiously
opposed to the death penalty. If they are opposed to the death
penalty and cannot put their views aside, the state is entitled
to have those people removed for cause.120 Although this process
results in a more conviction-prone jury, it has been upheld by
the Supreme Court.121 This "death qualification" process often
results in the removal of more prospective jurors who are members
of minority groups than those who are white. The minority jurors
may have reservations about the death penalty because it has been
used in a racially discriminatory manner. This is one of many
ways in which past discrimination in the application of the death
penalty perpetuates continued discrimination.
Often the "death qualification" process reduces the number
of minority jurors to few enough that those remaining can be
eliminated by the prosecutor with peremptory strikes. Even when
jurors who express reservations about the death penalty indicate
they can put aside their personal views and consider it, the
prosecutor may justify his or her strikes with the hesitancy of
those jurors to impose the death penalty. For example, in Lingo
119. See Report of the Governor's Commission on the Death
Penalty: An Analysis of Capital Punishment in Maryland: 1978 to
1993 (Nov. 1993) at 91, 92, 119 (although Baltimore City has well
over ten times as many murders as Baltimore County each year, of
forty-one death sentences imposed in Maryland under its current
death penalty statute, twenty-two were imposed in Baltimore
County; of the fifteen death sentences in effect on June 30,
1993, all but four were from Baltimore County; only five death
sentences were imposed in Baltimore City and only two of the
sentences in effect on June 30, 1993, were from Baltimore City).
The author is aware of seventeen death sentences imposed in Cobb
County, Georgia, under the death penalty statute adopted by
Georgia in 1973. This is among the highest number of death
sentences for a Georgia county.
120. See Wainwright v. Witt, 469 U.S. 412 (1985); Witherspoon v. Illinois, 391 U.S. 510 (1968).
121.
Page 23

Lockhart v. McCree, 476 U.S. 162, 173 (1986).

v. State,122 a Georgia prosecutor used all eleven of his jury
strikes against African- Americans to obtain an all white jury in
a capital case.123 In a challenge to those strikes under Batson
v. Kentucky,124 the Georgia Supreme Court ¶ over the dissent of
its two African-American justices ¶ upheld the strikes based on
the "race neutral" reasons articulated by the prosecutor, many of
which had to do with the jurors' answers to the death
qualification questions.125
A federal court in Alabama found the "standard operating
procedure of the Tuscaloosa County District Attorney's Office"
was "to use the peremptory challenges to strike as many blacks as
possible from the venires in cases involving serious crimes."126
The District Court also found that prosecutors,
manipulated the trial docket in their effort to
preserve the racial purity of criminal juries. Inasmuch as they actually set the criminal trial dockets
until 1982, they implemented a scheme in which juries
with fewer black venirepersons would be called for the
serious cases.127
In Georgia's Chattahoochee Judicial Circuit, which has sent
more people to death row than any other circuit in the state,128
prosecutors have used eighty-three percent of their opportunities
to use peremptory jury strikes against African-Americans, even
though black people constitute thirty-four percent of the
population in the circuit.129 As a result, six African-American
defendants were tried by all-white juries.130 Two of them have
122.

437 S.E.2d 463 (Ga. 1993).

123.

Id. at 465.

124.

476 U.S. 79 (1986).

125.

Lingo, 437 S.E.2d at 466 - 67.

126. Jackson v. Thigpen, 752 F. Supp. 1551, 1554 (N.D. Ala.
1990), rev'd in part and aff 'd in part, sub nom. Jackson v.
Herring, 42 F.3d 1350 (11th Cir. 1995).
127.

Id. at 1555.

128. By the author's count, the death sentence has been
imposed 22 times in the Chattahoochee Judicial Circuit, more than
any other judicial circuit in Georgia. Four of those death
sentences have been carried out. Three of the four persons
executed were African-Americans.
129. Defense Exhibit 2A, admitted at Hearing on Racial
Discrimination, supra note 108.
130.
Page 24

Id.

been executed.131
William Henry Hance was the first black defendant tried in a
Chattahoochee Circuit capital case after Furman to have a member
of his race on his jury.132 During jury selection at Hance's
first trial, the prosecutor used nine of his ten peremptory
strikes against African-Americans, leaving one black on the
jury.133 The death penalty was imposed. However, it was later
set aside because the prosecutor made a lynch-mob type appeal to
the jury for the death penalty in closing argument, which the
United States Court of Appeals characterized as a "dramatic
appeal to gut emotion" that "has no place in a courtroom."134
These words from a federal court had no impact on the prosecutor.
After the reversal, he called a press conference, insisted that
he had done nothing wrong, and announced he would once again seek
the death penalty against Hance.135 At the second trial, he used
seven of eight strikes against blacks, again eliminating all but
one member of Hance's race from jury service.136 Hance was again
sentenced to death and this death sentence was carried out.137
The judicial circuit second only to Chattahoochee in sending
people to Georgia's death row is the Ocmulgee Judicial Circuit in
middle Georgia.138 Joseph Briley tried thirty-three death penalty
cases in his tenure as District Attorney in the circuit between
1974 and 1994.139 Of those thirty-three cases, twenty-four were
131. Joseph Mulligan and Jerome Bowden, both sentenced to
death by all-white juries, have been executed. Death Row USA,
supra note 1, at 5.
132. See Defense Exhibit 1A, admitted in Hearing on Racial
Discrimination, supra note 108.
133.

Id.

134. Hance v. Zant, 696 F.2d 940, 952 (11th Cir. 1983),
cert. denied, 463 U.S. 1210 (1994).
135. Hearing on Racial Discrimination, supra note 108,
Transcript of Sept. 12, 1991, at 144 - 46 (testimony of William
J. Smith, the prosecutor in Hance).
136. Defense Exhibit 2A, admitted in Hearing on Racial
Discrimination, supra note 108.
137. Hance was executed on March 31, 1994.
supra note 1, at 8.

Death Row USA,

138. By the author's count, 18 persons have been sentenced
to death in the Ocmulgee Judicial Circuit since 1973.
139. Charts showing most of the prosecutor's capital trials
are included in Horton v. Zant, 941 F.2d 1449, 1468 -70 (11th
Cir. 1991), cert. denied, 117 L.Ed.2d 652 (1992). Two other
capital cases were tried against white defendants before the
Page 25

against African-American defendants.140 It was discovered that
Briley had instructed jury commissioners in one county in the
circuit to underrepresent black citizens on the master jury lists
from which grand and trial juries were selected.141 Additionally,
the African-Americans who were summoned for jury duty in the
circuit were often sent back home after Briley used his
peremptory jury strikes against them. In the cases in which the
defendants were black and the victims were white, Briley used
ninety-four percent of his jury challenges ¶ 96 out of 103 ¶
against black citizens.142
When a prosecutor uses the overwhelming majority of his jury
strikes against a racial minority, that minority is prohibited
from participating in the process. A jury does not represent
"the conscience of the community on the ultimate question of life
or death"143 when one-fourth or more of the community is not
represented on it.144
African-Americans and other minorities continue to be excluded from jury service, even after the Supreme Court's decision
in Batson v. Kentucky,145 which changed the standard of proof for
establishing a prima facie case of discrimination.146 Batson
requires trial judges ¶ most of whom are popularly elected ¶ to
assess the district attorney's reasons in order to determine
(..continued)
prosecutor left office. Tharpe v. State, 416 S.E.2d 78 (Ga.
1992); Fugate v. State, 431 S.E.2d 104 (Ga. 1993).
140.

Horton, 941 F.2d at 1468 -70.

141.

Amadeo v. Zant, 486 U.S. 214 (1988).

142.

Horton, 941 F.2d at 1458.

143.

Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).

144.

Id.

145.

476 U.S. 79 (1986).

146. Id. After years of criticism about the crippling and
virtually impossible burden of proof established in Swain v.
Alabama, 380 U.S. 202 (1965), the Supreme Court held that a prima
facie case of racial discrimination could be established by
disparate strikes against minority jurors in a particular case.
Batson v. Kentucky, 476 U.S. 79 (1986). Swain had required the
defendant to prove that the prosecutor struck black citizens "in
case after case, whatever the circumstances, whatever the crime
and whoever the defendant or the victim may be ... with the
result that no Negroes ever serve on petit juries." Swain, 380
U.S. at 223. Swain is discussed further in notes 225 -228 and
accompanying text.
Page 26

whether the prosecutor intended to discriminate.147 Many judges
are former prosecutors who may have hired the district attorneys
appearing before them. Even if the judge is not personally close
to the prosecutor, he or she may be dependent upon the
prosecutor's support in the election to remain in office.148
Thus, in the many jurisdictions where judges are elected, it may
be politically impossible and personally difficult for the judge
to reject a reason proffered by the prosecutor for striking a
minority juror. Courts routinely uphold convictions and death
sentences even where a grossly disproportionate number of
African-Americans have been excluded from jury service by the
prosecutor's peremptory jury strikes.149
Racial diversity on juries makes a difference in capital
trials. Juries selected through discriminatory practices often
bring to the jury box, either consciously or subconsciously,
"racial stereotypes and assumptions" which influence them "in the
direction of findings of black culpability and white victimization, . . . black immorality and white virtue, . . . blacks as
social problems and whites as valued citizens."150 Experience has
taught that the death penalty is much more likely to be imposed
in cases tried to all- white juries than in cases tried to more
racially diverse juries.151 Decisions made by allwhite juries do
147.

See Batson, 476 U.S. at 98.

148. See, e.g., Mark Ballard, Gunning For A Judge;
Houston's Lanford Blames DA's Office For His Downfall, Tex. Law.
, Apr. 13, 1992, at 1 (describing how Houston District Attorney
John B. Holmes, unhappy with rulings by a Republican judge in two
murder cases, helped cause the judge's defeat by running one of
his assistants against the judge and causing congestion in his
docket).
149. See Kenneth B. Nunn, Rights Held Hostage: Race, Ideology and the Peremptory Challenge, 28 Harv. C.R.-C.L. L. Rev. 63
(1993); Michael J. Raphael & Edward J. Ungvarsky, Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky, 27 U. Mich.
J.L. Ref. 229 (1993).
150. Peggy C. Davis, Popular Legal Culture: Law as Microaggression, 98 Yale L.J. 1559, 1571 (1989).
151. The psychological tendency of predominantly white
decision-makers to sympathize more with whites than blacks is
described in Samuel H. Pillsbury, Emotional Justice: Moralizing
the Passions of Criminal Punishment, 74 Cornell L. Rev . 655, 708
(1989); Francis C. Dane & Laurence S. Wrightsman, Effects of
Defendants' and Victims' Characteristics on Jurors' Verdicts, in
The Psychology of the Courtroom 104 - 06 (1982). The effect is
particularly pronounced and results in the most severe sentences
where the victim is of the same race and the defendant is of a
different race from that of the jurors. Id. at 106.
Page 27

not receive the respect of other racial groups which were denied
participation. On the other hand, more diverse juries bring to
their decision-making a broader perspective gained through varied
life experiences. An African-American member of the Georgia
Supreme Court has observed that, "[w]hen it comes to grappling
with racial issues in the criminal justice system today, often
white Americans find one reality while African-Americans see
another."152 The decisions of representative juries are seen as
more legitimate and are accorded greater respect by all segments
of the community.
3. The Impact of Racial Prejudice of Defense Counsel
In rejecting a challenge to the effectiveness of a defense
lawyer who expressed racist sentiments in Dobbs v. Zant,153 both
the District Court and the Court of Appeals reasoned that since
the defense lawyer did not decide the sentence, the claim should
be rejected.154 But there are numerous other ways in which the
racial prejudice of defense counsel may affect the sentencing
decision.
A lawyer defending the accused in a capital case has the
obligation to investigate the life and background of the client
in order to introduce mitigating evidence.155 To fulfill this
constitutional and ethical obligation, a lawyer must be comfortable working with the client, the client's family, and the
client's friends. If the appointed lawyer regards the client,
his family, or his friends in a demeaning way, the lawyer cannot
possibly obtain and present the needed information and fulfill
the role as an advocate for the client's life. In addition, the
defendant who is assigned a lawyer who shares the racial prejudices of the jurors, judge, and prosecutor is left without an
advocate to expose and challenge such biases.
For example, a federal district court in Alabama described
the representation provided to an African-American woman whose
152. Lingo v. State, 437 S.E.2d 463, 468 (Ga. 1993) (Sears-Collins, J., dissenting).
153.

See supra notes 63- 80 and accompanying text.

154. Dobbs v. Zant, 720 F. Supp. 1566, 1578 (N.D. Ga.
1989), aff'd, 963 F.2d 1403, 1407 (11th Cir. 1991), rev'd and
remanded, 113 S. Ct. 835 (1993).
155. Any aspect of the life and background of the accused
may be considered by the sentencer as a reason to impose a sentence less than death. See supra note 72. For a discussion of
the special demands upon defense counsel in properly preparing
for the defense of a capital trial see Welsh S. White, Effective
Assistance of Counsel in Capital Cases: The Evolving Standard of
Care, 1993 U. Ill. L. Rev. 323 (1993). See also Gary Goodpaster,
The Trial for Life: Effective Assistance of Counsel in Death
Penalty Cases, 58 N.Y.U. L. Rev. 299, 303 - 04 (1983).
Page 28

court-appointed lawyers had assumed she would not be sentenced to
death for the "shothouse killing" of another black woman:
Petitioner's counsel did not prepare for the sentencing hearing. . . .
Roughly one hour after her conviction, petitioner
and her counsel appeared before the jury again for the
sentencing hearing. [Counsel] testified at the habeas
hearing that he told the judge the [capital murder]
verdict was so shocking to him that he was not prepared
to go forward with sentencing.
Between the time of petitioner's indictment and
sentencing, her lawyers did no work on the sentencing
aspects of her case. . . .
No social history of petitioner was undertaken
prior to either of the sentencing hearings [one before
the jury and the second before a judge]. No family
members or friends were contacted and informed of either the sentencing hearing before the jury or the
trial judge. Therefore, no evidence of mitigation was
adduced. . . .
. . . At the onset of petitioner's trial, when
they clearly should have challenged the prosecutor's
intentional and racially-motivated utilization of peremptory challenge to exclude all blacks from the jury
chosen to try their black client, petitioner's counsel
inexplicably failed to do so.156
One reason for the inadequate representation that Melvin
Wade received before being sentenced to death by a California
jury may have been the racial attitudes of his attorney. The
attorney, who used racial slurs to refer to African-Americans,
including Wade, failed to adequately present evidence of Wade's
abuse as a child. The attorney also gave harmful closing arguments, including a penalty phase argument which asked the jury to
impose the death sentence on his client. Kim Taylor, an associate professor at Stanford University Law School and former
director of the Public Defender for the District of Columbia,
described the relationship between counsel's racial attitudes and
his performance as follows:
From the evidence before me, it seems clear that
race played a significant and insidious role in Mr.
Wade's trial. . . . Mr. Wade was represented by a man
who viewed blacks with contempt, and this evidence is
supported by the manner in which that attorney conducted himself at trial. Trial counsel failed to take
any steps to impeach the state's injection of racial
stereotyping and race-based misinformation into the
case . . . and counsel comported himself in his argument to the jury in a manner as to convey his
156. Jackson v. Thigpen, 752 F. Supp. 1551, 1555, 1556,
1562 (N.D. Ala. 1990), rev'd in part and aff'd in part, sub nom,
Jackson v. Herring, 42 F.2d 1350 (11th Cir. 1995).
Page 29

raced-based contempt.157
Such performances by defense counsel make it impossible for
jurors to perform their constitutional obligation to impose a
sentence based on "a reasoned moral response to the defendant's
background, character, and crime."158 Nor can courts discharge
their responsibility to protect the constitutional rights of the
accused, including the right to a trial not infected by racial
discrimination, when court-appointed lawyers fail to raise issues
of discrimination out of ignorance or indifference.
C. Disparities in Imposition of
Death Sentences in the State Courts
Sentencing patterns confirm that racial prejudice plays a
role in imposition of the death penalty. Although African-Americans make up only twelve percent of the total population of the
United States, they have been the victims in about half of the
total homicides in this country in the last twenty-five years.159
In some states in the South, where capital punishment is often
imposed, African-Americans are the victims of over sixty percent
of the murders. Yet eighty-five percent of the cases in which
the death penalty has been carried out have involved white
victims.160
In Georgia, for example, although African-Americans were the
victims of 63.5 percent of the murders between 1976 and 1980, 82
percent of the cases in which death was imposed during that
period involved murders of whites.161 Professor David Baldus and
his associates conducted two studies of the influence of race in
the application of the death penalty, examining over 2,000 murder
cases which occurred in Georgia during the 1970s.162 They found
157. Declaration of Kim Antoinette Taylor, Sept. 30, 1991,
filed in Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994), cert.
denied, 130 L. Ed. 2d 802 (1995).
158. Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting
California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J.,
concurring)).
159. Erik Eckholm, Studies Find Death Penalty Often Tied to
Victim's Race, N.Y. Times , Feb. 24, 1995, at A1; see also Bureau
of Justice Statistics, U.S. Dep't of Justice, Sourcebook of
Criminal Justice Statistics 1993 , at 384, table 3.128 (Kathleen
Maguire & Ann L. Pastore eds., 1993).
160.

Death Row USA, supra note 1, at 3.

161.

Gross & Mauro , supra note 15, at 43 - 44.

162. The studies are discussed extensively in Baldus et al
., supra note 15; and in the Supreme Court's decision in
McCleskey v. Kemp, 481 U.S. 279, 286 - 87 (1987); id. at 325 -28
(Brennan, J., dissenting).
Page 30

that prosecutors are more likely to seek the death penalty where
the victim is white and juries are more likely to impose the
death penalty in such cases.163 Defendants charged with murders
of white persons received the death penalty in eleven percent of
the cases, while defendants charged with murders of blacks
received the death penalty in only one percent of the cases.164
Defendants charged with killing white victims were 4.3 times more
likely to receive a death sentence than defendants charged with
killing blacks.165
Georgia carried out twenty executions, under the death
penalty statute upheld by the Supreme Court in 1976, by August
31, 1995.166 Twelve of those executed were African-Americans.167
In eighteen of the cases, the victims were white.168 Six of the
African-Americans executed were sentenced to death by all-white
juries.169 These patterns are not limited to Georgia. Nine of
the first twelve persons executed in Alabama were
African-American.170 The General Accounting Office summarized its
analysis of twenty-eight studies of the death penalty as follows:
In 82 percent of the studies, race of the victim
was found to influence the likelihood of being charged
with capital murder or receiving the death penalty,
i.e., those who murdered whites were found to be more
likely to be sentenced to death than those who murdered
blacks. This finding was remarkably consistent across
data sets, states, data collection methods, and
analytic techniques.171
163. Baldus et al. , supra note 15, at 149 -57, 160 -78,
311- 40; McCleskey, 481 U.S. at 287.
164. Baldus et al. , supra note 15, at 314 -15; McCleskey,
481 U.S. at 286.
165. Baldus et al. , supra note 15, at 316; McCleskey, 481
U.S. at 287.
166.

Death Row USA, supra note 1, at 9.

167.

Id. at 4 - 9.

168.

Id.

169. The author has made this determination from the trial
judge's reports to the Georgia Supreme Court in the six cases
which indicate that no member of the defendant's race was on the
jury which sentenced him to death.
170.

Id.

171. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb.
1990).
Page 31

The United States Supreme Court permitted such racial disparities in the imposition of the death penalty in McCleskey v.
Kemp.172 By a 5 - 4 vote, the Court allowed Georgia to carry out
its death penalty law despite racial disparities that would not
be officially tolerated in any other area of the law. The Court
rejected challenges based on equal protection and the Eighth
Amendment's cruel and unusual clause.173 The Court found that the
studies established "at most . . . a discrepancy that appears to
correlate with race"174 and declined "to assume that that which is
unexplained is invidious,"175 thus holding the disparities
insufficient even to raise a prima facie case of racial
discrimination. The Court also expressed its concern that
"McCleskey's claim, taken to its logical conclusion, throws into
serious question the principles that underlie our entire criminal
justice system."176 Justice Brennan, in dissent, characterized
this concern as "a fear of too much justice."177
The Court's fear of too much justice may result in no justice at all. The decision in McCleskey has been employed by
lower federal and state courts to avoid dealing with issues of
racial discrimination. Its crippling standard of proof, discussed more fully in section IV.C., is so formidable that many
courts have denied even a hearing on gross racial disparities.178
As will be discussed there, such an unwillingness to confront
racial issues allows discrimination to go unchecked.
D. Disparities in Federal Death Prosecutions
The federal government in pursuing death sentences authorized by the Anti-Drug Abuse Act of 1988179 has an even worse
record of discrimination than the states. The Act authorizes the
death penalty for murders committed by "kingpins" involved in
drug trafficking "enterprises."180 Federal prosecutors are given
wide discretion in deciding whether to seek the death penalty.
One Congressional committee observed: "The drug trafficking
172.

481 U.S. 279 (1987).

173.

Id. at 306.

174.

Id. at 312.

175.

Id. at 313.

176.

Id. at 314 -15.

177. McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan,
J., dissenting).
178.

See infra notes 242 -51 and accompanying text.

179.

21 U.S.C. s 848 (1988).

180. House Subcommittee, Racial Disparities in Federal
Death Penalty Prosecutions, supra note 14, at 2.
Page 32

'enterprise' can consist of as few as five individuals, and even
a low-ranking 'foot soldier' in the organization can be charged
with the death penalty if involved in a killing."181
Although three-fourths of those convicted of participating
in a drug enterprise under the general provisions of 21 U.S.C.
section 848 are white,182 the death penalty provisions of the Act
have been used almost exclusively against minorities. Of the
first thirty-seven federal death penalty prosecutions, all but
four were against members of minority groups.183 Nevertheless, in
1994, Congress provided the death penalty for over fifty
additional crimes and refused to enact the Racial Justice Act.184
Those accused of federal capital crimes are supposedly
protected from racial discrimination by the requirements that
juries be instructed not to discriminate and all jurors sign
certificates guaranteeing they did not discriminate.185 But this
almost laughable provision is hardly a protection against racial
discrimination. By the time the jury is selected, racial
prejudice may have already influenced the prosecutor's decisions
to seek the death penalty, to refuse a plea bargain for a
non-capital sentence, and to strike minority jurors. Moreover,
the most pernicious racial discrimination that occurs today is
that perpetrated by those who have the sophistication not to
admit their biases. Those who live in racially exclusive
neighborhoods, are members of racially exclusive social
organizations, send their children to segregation academies, and
refuse to rent to black citizens may be more than happy to
listen to jury instructions and sign the certificate of
nondiscrimination before sending some black person off to his
death. Of course, many may not even be aware of their
unconscious racism.
E. Failure to Pass the Racial Justice Act
Despite the pronounced racial disparities in the infliction
of the death penalty in both state and federal capital cases,
Congress refused to include the Racial Justice Act as part of the
crime bill in 1994, just as it refused to enact the Racial Justice Act in previous years.186 The Racial Justice Act was a
181.

Id.

182.

Id.

183.

Id. at 3.

184. See The Violent Crime Control and Law Enforcement Act
of 1994, Pub. L. No. 103 -322, 108 Stat. 1796 (1994). There is
no reason to expect that the federal government will be more
successful in preventing discrimination under the Violent Crime
Control Act than it has been with the Anti-Drug Abuse Act.
185.
186.
Page 33

18 U.S.C. §848(o)(1) (1988).
The Racial Justice Act was adopted in a version of the

modest proposal that would have required courts to hold hearings
on racial disparities in the imposition of the death penalty and
look behind the disparities to determine whether they were related to race or some other factor.187
It is not unreasonable to require publicly elected prosecutors to justify racial disparities in capital prosecutions. If
there is an underrepresentation of black citizens in a jury pool,
jury commissioners are required to explain the disparity.188 A
prosecutor who strikes a disproportionate number of black
citizens in selecting a jury is required to rebut the inference
of discrimination by showing race neutral reasons for his or her
strikes.189 If there are valid, race neutral explanations for the
disparities in capital prosecutions, they should be presented to
the courts and the public. Prosecutors, like other public
officials, should be accountable for their actions. The bases
for critical decisions about whether to seek the death penalty
and whether to agree to a sentence less than death in exchange
for a guilty plea should not be shrouded in secrecy, but should
be openly set out, defended, and evaluated.
The likelihood is not that it would be too difficult for
prosecutors to rebut the inference of discrimination, but that it
would be too easy. The task of rebutting an inference of racial
discrimination under Batson has proven to be remarkably easy for
prosecutors, even when they have used all of their jury strikes
against minorities.190 Nevertheless, the Racial Justice Act
presented the threat of too much justice to the United States
Senate and was defeated.
It is not surprising that Congress failed to pass the Racial
Justice Act. Congress steadfastly refused to pass an antilynching law when African-Americans and other minorities were
being lynched.191 Instead, the federal government put much of its
(..continued)
crime bill that passed the House of Representatives in April,
1994. See David Cole, Fear of Too Much Justice, Legal Times, May
9, 1994, at 26. However, due to opposition in the Senate, it was
not included in the final bill reported by the conference committee and adopted by both the Senate and the House later in the
summer.
187.

See David Cole, Fear of Too Much Justice, supra note

186.
188. See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977);
Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983). Once it is shown
that there is substantial underrepresentation, jury officials
must demonstrate that it was not the result of discrimination.
189.

Batson v. Kentucky, 476 U.S. 79 (1986).

190.

See supra note 149.

191. See W. Fitzhugh Brundage, Lynchings in the New South;
Georgia and Virginia, 1880 -1930 (1993); see generally George C.
Page 34

law enforcement efforts into pursuing moonshiners. Today, the
federal government commits ample resources for questionable and
expensive efforts to demonstrate it is "tough on crime" ¶ the
war on drugs, the pursuit of federal death sentences for many
crimes that could be prosecuted in the state courts, and the
housing of ever increasing numbers of people in federal prisons
for longer periods of time. But few resources are devoted to the
constitutional commitment of equality for racial minorities and
the poor.
The United States Department of Justice, which might be
expected to be concerned about racial discrimination in the
courts and its impact on public confidence in the courts, is now
one of the worst offenders in the discriminatory use of the
death penalty. There is no large or powerful constituency
concerned about racial discrimination in capital cases. The
Republican Contract With America for the 1994 elections promised
greater use of the death penalty and even greater utilization of
prisons, not passage of the Racial Justice Act. Thus, there is
no reason to expect solutions or even leadership from the
executive or legislative branches of the federal government with
regard to the racial discrimination in capital cases.
IV. THE AVOIDANCE, DENIAL, AND TOLERANCE
OF RACIAL DISCRIMINATION BY THE COURTS
Despite extraordinary competition among politicians to be
tough on crime, prosecutors and the judicial system remain remarkably soft on the crime of racial discrimination. Those who
discriminate are seldom disciplined or punished. Appellate
courts which normally publish long opinions on minor issues often
do not even mention the extraordinary racial discrimination that
comes before them, finding ways to dispose of cases on other
grounds. And when racial discrimination is recognized, the
remedies are often woefully inadequate.
A. The Crime that Goes Unpunished
Jury officials in Alabama, in an attempt to defeat a challenge to the exclusion of black citizens from jury service in
1933, forged the names of six black citizens on the jury rolls.192
The local trial judge rejected the assertion of fraud, saying he
"would not be authorized to presume that somebody had committed a
crime" or had been "unfaithful to their duties and allowed the
books to be tampered with."193 The United States Supreme Court
generously observed that "the evidence did not justify that
(..continued)
Wright , Racial Violence in Kentucky (1990).
192. Norris v. Alabama, 294 U.S. 587, 592 (1935). Expert
testimony established that the names of the six black citizens
were added by the clerk at the direction of a jury commissioner.
Id.
193.
Page 35

Id. at 593.

conclusion."194 Although the case was reversed, no action was
taken against those responsible for the forgery.195
In 1988, the Supreme Court found that a Georgia prosecutor
instructed jury commissioners to underrepresent African-Americans
in jury pools in such a way as to avoid detection and defeat a
prima facie case of discrimination.196 No action was taken
against the prosecutor, and he remained in office until 1994,
when he resigned while under investigation for sexual harassment.197
In Columbus, Muscogee County, Georgia, black citizens were
excluded for years and then underrepresented in the jury pools.
In 1966, the Fifth Circuit Court of Appeals held that this discrimination violated the Constitution.198 In 1972, the Supreme
Court reached the same conclusion in another case from the
county, and three justices even went so far as to point out that
the way in which juries were being selected in the county violated 18 U.S.C. section 243, which makes it a criminal offense to
exclude persons from jury service on the basis of race.199
Despite these court decisions, the unconstitutional, systematic underrepresentation continued throughout the 1970s. This
underrepresentation was made possible in part because one public
defender, appointed by white judges in Columbus, would not, as a
matter of "policy," file challenges to the underrepresentation of
blacks in the jury pool for fear of incurring hostility from the
community.200
As a result, at the capital trial of a black man in Columbus, Georgia in 1977 ¶ eleven years after the Fifth Circuit
decision and five years after the Supreme Court warned that the
exclusion of black citizens violated federal criminal statutes ¶
there were only eight black citizens in a venire of 160 per194.

Id.

195. Norris was again sentenced to death.
supra note 35, at 370.
196.

Dan T. Carter,

Amadeo v. Zant, 486 U.S. 214 (1988).

197. The Briley File, Fulton County Daily Rep. , Nov. 7,
1994, at 1. The district attorney was not prosecuted for either
racial discrimination or sexual harassment and was allowed to
retire with a pension after 20 years in office. Id.
198.

Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966).

199. Peters v. Kiff, 407 U.S. 493, 505 - 07 (1972) (White,
J., concurring).
200. Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.), rehearing denied, 880 F.2d 293, 293- 97 (Clark, J., dissenting from
denial of rehearing), cert. denied, 493 U.S. 945 (1989).
Page 36

sons.201 A venire that fairly represented the community would
have included fifty black citizens. That case was tried by an
all-white jury.202 The death penalty was imposed.203
There are people awaiting execution on Georgia's death row
who were sentenced to death in Columbus by juries chosen in
defiance of the Supreme Court's decision requiring an end to
discrimination. Yet those who defied the federal courts and the
Constitution were never prosecuted or disciplined. Some are
still presiding as judges in the local courts there.
It simply cannot be said that courts are engaging in "unceasing efforts" to eliminate racial discrimination from the
criminal justice system204 when prosecutors can rig juries on the
basis of race with impunity, when decisions from the Supreme
Court and the United States Courts of Appeals regarding discrimination in jury selection can be ignored for years with impunity,
and a prosecutor may remain in office and death sentences are
carried out even though juries are selected pursuant to the
prosecutor's practice of striking as many African-Americans as
possible. Judicial tolerance of such discrimination sends the
unmistakable message that the "war on crime" need not be fought
according to the Constitution, and racial discrimination will be
tolerated when it is perceived as necessary to obtain convictions
and death sentences.
B. Avoiding Issues Involving Race
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,205 the United
States Supreme Court remanded to the Georgia Supreme Court a
201. Challenge to the Petit Jury Array filed in State v.
Brooks, Indictment No. 3888 (Nov. 1977), on appeal, 261 S.E.2d
379 (1979), vacated and remanded, 446 U.S. 961 (1980), on remand,
271 S.E.2d 172 (Ga. 1980), cert. denied, 451 U.S. 921 (1981),
conviction and death sentence vacated sub nom. Brooks v. Kemp,
762 F.2d 1383 (11th Cir. 1985) (en banc), vacated and remanded,
478 U.S. 1016 (1986), decision adhered to on remand, 809 F.2d 700
(11th Cir. 1987) (en banc), cert. denied, 483 U.S. 1010 (1987).
202. Trial Judge's Report to the Georgia Supreme Court in
State v. Brooks, supra note 201, at 6, §E(4).
203.

Id.

204.

See supra note 27.

205.

Avery v. Georgia, 345 U.S. 559, 562 (1953).

Page 37

capital case in which the jury had been selected by the same
illegal means in the same county.206 However, when the Georgia
Supreme Court refused to reconsider its previous holding that the
issue had been waived,207 the United States Supreme Court backed
down, denied certiorari and allowed the execution to be carried
out.208 It appears that the Court, already encountering
resistance to its decision in Brown v. Board of Education,209 was
anxious to avoid a confrontation with southern state courts over
racial discrimination in the criminal courts.210
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,211 a case
in which the Eighth Circuit rejected a challenge based upon the
pronounced disparity in the number of African- Americans
sentenced to death for rape in Arkansas and other parts of the
South.212 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.213
Although the specter of race discrimination was acknowledged
by justices in both the majority and the dissent in Furman v.
Georgia,214 only Justice Marshall discussed racial discrimination
206.

Williams v. Georgia, 349 U.S. 375, 391 (1955).

207. Williams v. State, 88 S.E.2d 376, 377 (Ga. 1955),
cert. denied, 350 U.S. 950 (1956).
208.

Williams v. Georgia, 350 U.S. 950 (1956).

209. 347 U.S. 483 (1954); Brown v. Board of Education, 349
U.S. 294 (1955). See supra note 97.
210. Del Dickson, State Court Defiance and the Limits of
Supreme Court Authority: Williams v. Georgia Revisited, 103 Yale
L.J. 1423, 1425 -26 (1994).
211. 398 F.2d 138 (8th Cir. 1968), vacated and remanded on
other grounds, 398 U.S. 262 (1970).
212.

Id. at 147.

213. 398 U.S. 262, 262 (1970). Michael Meltsner , Cruel
and Unusual: The Supreme Court and Capital Punishment 163 - 67,
199 -211 (1973).
214. 408 U.S. 238 (1972). See 408 U.S. at 257 (Douglas,
J., concurring) (describing the statutes before the Court as
"pregnant with discrimination"); id. at 310 (Stewart, J., concurring); id. at 364 - 65 (Marshall, J., concurring); id. at 389
n.12 (Burger, C.J., dissenting); id. at 449 -50 (Powell, J.,
dissenting).
Page 38

at length.215 Justice Stewart found it unnecessary to decide 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."216
Despite the extraordinary history of discrimination with
regard to the infliction of the death penalty upon AfricanAmericans for the rape of white women,217 the Court did not even
mention race in striking down the death penalty for the crime of
rape in Coker v. Georgia.218
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.219
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.220 Evidence
presented in the trial court established that the judge regularly
appointed jury commissions which underrepresented
African-Americans, tolerated gross underrepresentation of blacks
in the grand and trial juries, mistreated black attorneys in
court, used racial slurs, and practiced discrimination in his
personal life.221
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 African-Americans 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
215.

Id. at 364 - 65 (Stewart, J., concurring.).

216. Id. at 310. Justice Douglas concluded there was an
unacceptable risk of discrimination. Id. at 257.
217. As Justice Marshall pointed out in Furman, of the 455
persons executed for the crime of rape after the Justice Department began compiling statistics, 405 were African-Americans. Id.
at 364.
218.
219.
1994).

433 U.S. 584 (1977).
See, e.g., Thornton v. State, 449 S.E.2d 98 (Ga.

220. Isaacs v. State, 355 S.E.2d 644 (Ga. 1987), cert
denied, 497 U.S. 1032 (1990).
221. See id. (transcript of hearing on motion to recuse
held Oct. 6 - 8, 1986).
Page 39

African- Americans.222
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.223 The
court did not mention that the prosecutor had used twenty-six
peremptory jury strikes against African-Americans 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.224
Apparently, many courts believe it is best to avoid the
sensitive issue of race. Why else did the courts not denounce
these outrageous 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.
C. Unreasonable Burdens of Proof,
Impossible Standards, and Inadequate Remedies
In 1965, in the midst of the Warren Court decisions applying
the Bill of Rights to state criminal procedure, the Court upheld
a capital conviction in Swain v. Alabama,225 despite evidence that
due to peremptory challenges, no black person had ever served on
a jury in either a criminal or civil case in Talladega County,
Alabama, where African-Americans constituted twenty-six percent
of the population. While reiterating its prior pronouncements
that "a State's purposeful or deliberate denial to Negroes on
account of race of participation as jurors in the administration
222. See State v. Taylor , Mo. S. Ct. No. 74220 (Order of
June 19, 1993); State v. Nunley, Mo. S. Ct. No. 76104 (Order of
June 29, 1993) (both orders vacate the judgments in the two cases
and remand for a new penalty hearing without opinion or further
elaboration). The evidence of racial discrimination was presented in an evidentiary hearing before the Circuit Court of Jackson
County, Missouri, in 1992.
223.
1994).

Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.

224.

Id.

225.

380 U.S. 202 (1965).

Page 40

of justice violates the Equal Protection Clause,"226 the Court set
an almost impossible burden of proof, holding that to establish
discrimination by a prosecutor in the use of peremptory strikes,
a defendant must prove the prosecutor engaged in a practice of
striking black citizens "in case after case, whatever the
circumstances, whatever the crime and whoever the defendant or
the victim may be . . . with the result that no Negroes ever
serve on petit juries."227 The decision, disapproving of racial
discrimination but allowing it to continue by setting a virtually
impossible standard of proof, was subject to "almost universal
and often scathing criticism,"228 but remained the law for twenty
years before the standard was changed in Batson v. Kentucky.229
The Supreme Court has created an equally difficult barrier
to sustaining claims of racial discrimination in the infliction
of the death penalty. In McCleskey v. Kemp,230 the Court accepted
the racial disparities in the imposition of the death penalty as
"an inevitable part of our criminal justice system."231 The Court
held that to prevail under the Equal Protection Clause the
defendant must present "exceptionally clear proof"232 that "the
decision makers in his case acted with discriminatory purpose."233
As in Swain, the Court found the evidence insufficient to
overcome a presumption of propriety with regard to the exercise
of discretion by prosecutors.234 But while requiring
exceptionally clear proof of discrimination, the Court made it
almost impossible to obtain it, concluding that "the policy
considerations behind a prosecutor's traditionally 'wide discretion' suggest the impropriety of our requiring prosecutors to
defend their decisions to seek death penalties, 'often years
after they are made.'"235
In rejecting McCleskey's claim under the Eighth Amendment,
the Court, while acknowledging the risk of racial prejudice
226.

Id. at 203 - 04.

227.

Id. at 223.

228. McCray v. New York, 461 U.S. 961, 964 (1983) (Marshall, J., dissenting from denial of certiorari).
229.

476 U.S. 79 (1986).

230.

481 U.S. 279 (1987).

231.

Id. at 312.

232.

Id.

233.

McCleskey, 481 U.S. at 292.

234.

Id. at 296.

235.

Id.

Page 41

See supra notes 172-177 and accompanying text.

influencing the capital sentencing decision,236 held that evidence
that blacks who kill whites are sentenced to death at nearly
twenty-two times the rate of blacks who kill blacks237 did not
"demonstrate a constitutionally significant risk of racial bias
affecting the Georgia capital sentencing process."238 Thus, the
Court held the risk of racial discrimination was not
"constitutionally unacceptable" under the Eighth Amendment.239
This disgraceful decision is more consistent with the
Court's decisions in Swain, Dred Scott v. Sandford,240 and Plessy
v. Ferguson241 than its more recent decisions recognizing racial
discrimination in other areas of life. The Court could have
concluded that racial disparities were "inevitable" or not
"constitutionally unacceptable" in education, housing, employment, or so many other areas of life where minorities have
experienced racial discrimination. Justice Powell, who cast the
deciding vote and authored the majority's opinion in the 5 - 4
decision in McCleskey, expressed his regret, after leaving the
Court, at his vote in the case.242
Other courts have followed the Supreme Court's head-in-the-sand approach. The Florida Supreme Court, by a 4 -3 vote, refused to require a hearing on racial disparities in the infliction of the death penalty.243 The Georgia Supreme Court upheld
the denial of a hearing on racial discrimination in a capital
prosecution against an African-American accused of the murder of
a white person in Cobb County, a county which has a long history
of racial discrimination.244 Some criminal defense lawyers in
236.

McCleskey v. Kemp, 481 U.S. 279, 308 (1987).

237.

Id. at 327 (Brennan, J., dissenting).

238.

Id. at 313.

239.

Id. at 309.

240. 60 U.S. 393, 407 (1857) (holding that African-Americans were "altogether unfit to associate with the white race,
either in social or political relations; and so far inferior,
that they had no rights which the white man was bound to respect").
241. 163 U.S. 537, 552 (1896) (holding that "[i]f one race
be inferior to the other socially, the Constitution of the United
States cannot put them upon the same plane").
242. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr.: A
Biography 451 (1994).
243. Foster v. State, 614 So. 2d 455 (Fla. 1992), cert.
denied, 114 S. Ct. 398 (1993).
244.
Page 42

Jones v. State, 440 S.E.2d 161 (Ga. 1994).

Cobb County have stated that they have never had the opportunity
to accept or strike an African-American juror due to the regular
practice of the district attorney's office of striking all the
African-Americans.245 To deny even a hearing on racial
discrimination in Cobb County is simply to run from the truth
instead of confronting it.246
The willingness of courts to tolerate racial discrimination
in order to carry out the death penalty has a corrupting effect
not just on capital cases, but throughout the criminal justice
system. For example, the Georgia Supreme Court, under immense
political pressure from Georgia's Attorney General and district
attorneys and dire warnings that the death penalty was in danger,
did a complete about face in only thirteen days in a case regarding gross racial disparities in sentencing for drug offenses.247
The Court first held by a 4 -3 vote that a prima facie case of
racial discrimination was established by evidence that 98.4% of
those serving life sentences for certain narcotics offenses were
black.248 All of the discretion in pursuing life sentences for
the offenses was entrusted to district attorneys.249 Statistics
from the Georgia Department of Corrections established that less
than one percent of the whites eligible for life sentence for
narcotics offenses ¶ just one in 168 -- received it, while 16.6
percent of African-Americans ¶ 202 of 1,219 ¶ received it.250
The Attorney General of Georgia joined by all of the fortysix district attorneys in the state ¶ all of whom are white ¶
filed a petition for rehearing with the court arguing that the
court's decision took a "substantial step toward invalidating"
245. Affidavit of Darrell Green, introduced at hearing,
Hill v. Zant, Super. Ct. of Butts Co., Ga., No. CV 85 -105(RC),
Tr. of Hearing of Dec. 9, 1990 at 39 - 42, 51-52, of Dec. 9, on
appeal, 425 S.E.2d 858 (Ga. 1993), cert. denied, 114 S. Ct. 342
(1993). The extraordinary efforts of officials of Cobb County to
keep African-Americans out of their community by refusing to join
the Metropolitan Atlanta Rapid Transit Authority and other means
is described in the affidavit of Brian Sherman, Ph.D., filed in
Hill v. Zant.
246. See also Griffin v. Dugger, 874 F.2d 1397 (11th Cir.
1989), cert. denied, 493 U.S. 1051 (1990) (upholding denial of a
hearing on racial discrimination).
247. Stephens v. State, No S94A1854, 1995 WL 116292 (Ga. S.
Ct. Mar. 17, 1995), withdrawn and superseded, Stephens v. State,
456 S.E.2d 560 (Ga. 1995).
248.

Id.

249.

Id.

250.

Id.

Page 43

the state's death penalty law and would "paralyze the criminal
justice system."251 In response, one member of the court switched
his vote and the court adopted the position of what had
previously been the dissent, that the proper governing standard
was McCleskey v. Kemp and, therefore, no prima facie case had
been established.252 The only way a more compelling showing could
have been made would have been if all 100% of those serving life
sentences for a second narcotics offense were black, instead of
just 98.4%. Yet the Georgia Supreme Court chose to erect an
impossible standard of proof based on its interpretation of
McCleskey in order to avoid even a hearing on the reasons for the
remarkable racial disparities in sentencing for narcotics offenses.
The United States Supreme Court based its decision in
McCleskey in part on the "safeguards designed to minimize racial
bias in the process."253 Those safeguards include the right to a
representative jury, the prohibition of use of peremptory
challenges by prosecutors on the basis of race, and the right in
cases involving interracial crimes to question potential jurors
about racial bias.254 But in many cases, such safeguards are
either nonexistent or inadequate.
The stages of the process that allow the greatest room for
racial prejudice are the prosecutorial decision to seek the death
penalty and the plea bargaining process. There are no effective
safeguards to prevent discrimination at either of those stages.
As previously noted, many courts which rely on McCleskey do not
even allow hearings on the influence of race at those critical
stages. Minorities remain woefully underrepresented in decision
making positions in the criminal justice system. Courts have
been increasingly hostile to challenges to the exclusion of
minorities from state judicial systems, even when it is apparent
that the minority vote has been diluted in order to preserve a
primarily white judiciary.255
The "safeguards" relied upon by the Court in McCleskey are
also inadequate because issues of discrimination usually focus on
the intent of the decision maker, which is exceptionally diffi251. Stephens v. State, 456 S.E.2d 560 (Ga. 1995); Emily
Heller, Second Thoughts on Second-Offense Law, Fulton County
Daily Report , Apr. 3, 1995, at 1, 10.
252. Emily Heller, Racial Test Put to the Test, Fulton
County Daily Report , Mar. 30, 1995, at 1, 5.
253.

McCleskey v. Kemp, 481 U.S. 279, 309, 313 (1987).

254.

Id. at 309 n.30.

255. See, e.g., Nipper v. Smith, 39 F.3d 1494 (11th Cir.
1994), petition for cert. filed (Mar. 2, 1995); League of United
Latin American Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993)
(en banc), cert. denied, 114 S. Ct. 878 (1994).
Page 44

cult to prove, instead of the results of their actions. Nor do
courts consider unconscious or subtle racial biases of decision
makers. As previously discussed, courts allow prosecutors to use
even 100 percent of their peremptory jury strikes based on assertions of "race neutral" reasons.256 The Supreme Court in
McCleskey found that racial disparities did not sufficiently
prove racial discrimination, but it failed to examine the role
that racial stereotypes and other attitudes may have played in
the results.257
Although the Supreme Court in Turner v. Murray258 acknowledged the potential impact that the unconscious racism of jurors
might have on the capital sentencing decision,259 Turner is
limited to interracial crimes.260 Thus, an accused who is charged
with the murder of a member of his own race is not entitled to
ask prospective jurors about their racial attitudes. Even in
interracial crimes, trial courts may limit voir dire so that it
does not disclose subtle racial attitudes which may come into
play.261
The failure of courts to provide poor defendants with adequate legal representation may leave the accused without any
ability to utilize what limited protections are available. Those
accused of crimes in Jefferson County, Georgia, were tried for
years before patently unconstitutional juries because local
lawyers appointed by local judges failed to challenge the severe
underrepresentation of African-Americans in the jury pools. It
was shown in one capital case in which the accused was represented by pro bono lawyers from outside the judicial circuit that
although African-Americans made up 54.5% of the population of the
county, they made up only 21.6% of the jury pool, an underrepresentation of over 50%.262 However, when this evidence was pre256.
ing text.

See supra notes 92- 95,122-129, and 149 and accompany-

257. For a discussion of the relationship of unconscious
racism to the decisions in McCleskey v. Kemp, Turner v. Murray
and Batson v. Kentucky, see Sheri Lynn Johnson, Comment, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016
(1988).
258.

476 U.S. 28 (1986).

259.

Id. at 35.

260.

Id. at 36.

261. The Supreme Court's decision in Turner gives trial
judges discretion to limit the form and number of questions and
even allows collective questioning of the jurors. Turner, 476
U.S. at 37.
262. Birt v. Montgomery, 725 F.2d 587, 598 n.25 (11th Cir.
1984), cert. denied, 469 U.S. 874 (1984).
Page 45

sented in a post-conviction challenge to the conviction and
sentence, the federal courts held that the defendant was barred
from raising the issue because no challenge had been made by the
local court appointed lawyer prior to trial.263 The defendant had
the misfortune of being represented ¶ over his protests ¶ by a
court-appointed lawyer who, when later asked to name the criminal
law decisions from any court with which he was familiar, could
name only two: Miranda and Dred Scott.264
In Columbus, Georgia, even after the United States Supreme
Court declared that jury officials were unconstitutionally and
illegally excluding African- Americans from jury service, the
practice continued because of the "policy" of the local courtappointed indigent defender of not challenging racial discrimination for fear of incurring hostility from the community.265 These
are not isolated examples regarding a single case. The failure
of lawyers to challenge clearly unconstitutional racial
discrimination in the composition of jury pools affected every
criminal case in these judicial circuits over decades.
In the case of an African-American tried before an all-white
jury after the prosecutor struck four black jurors, the United
States Court of Appeals for the Eighth Circuit refused to review
a prosecutor's emphasis on the difference in race between the
"attractive" white victim and "this black man"266 because no
objection had been made at the time of the argument.267
The right to question jurors about race in an interracial
crime was utilized as follows by defense counsel in an Alabama
case tried in 1993:
Mr. NELSON [Defense counsel]: I have just a couple
263.

Id. at 600 - 01.

264. Transcript of Hearing of
State v. Birt (Super. Ct. Jefferson
The lawyer was referring to Miranda
(1966), and Dred Scott v. Sandford,
Scott was not a criminal case.

Apr. 25 -27, 1988, at 231,
Co., Ga. No. 2360, 1988).
v. Arizona, 384 U.S. 436
60 U.S. 393 (1857). Dred

265. See notes 198 -203 and accompanying text. See also
Barrow v. State, 236 S.E.2d 257, 259 (Ga. 1977) (defense attorney did not challenge underrepresentation of blacks on the jury
because "he felt adverse community pressure would insure to him
personally" if he did so); Goodwin v. Balkom, 684 F.2d 794, 806
(11th Cir. 1982) (discussing how lawyer's concerns over "community ostracism" not only inhibited his performance at trial, but
"every facet of counsel's functions").
266. Blair v. Armontrout, 916 F.2d 1310, 1333, 1351-1352
(8th Cir. 1990) (Heaney, J., concurring in part and dissenting in
part).
267.
Page 46

Id. at 1325 n.15.

of more questions and I promise I will quit. We are
talking about this case and not some fictional case.
In this case this is a black man and Mrs. Hargrove's
son was a young white man. I will ask you this and
it's not -- it's like Bob said. I'm not asking you
this to embarrass you, but do any of you belong to any
organizations such as the Klan or have close family
members that belong to the Klan or an organization
known as the Skinheads, Na[ ]zi groups or anything like
that who believe that a race is inferior or a religion
is inferior? Do any of you belong to any of those
things?(No response)
MR. NELSON: Do any of you believe any of that
stuff? Is there anybody that believes in that stuff on
this jury?
JUROR BARTLETT: The Klan has a lot of stuff that
they stand for that is good.
MR. NELSON: I'm sorry, Mr. Bartlett?
JUROR BARTLETT: The Klan has lot of things they
stand for that is good. I have read some of their
literature.
MR. NELSON: You believe in some of the doctrine
that the Klan has in their literature?
JUROR BARTLETT: I guess it would be called doctrine. I don't know.
MR. NELSON: Would you tell me what it is that you
believe in that you have read?
JUROR BARTLETT: Well, there are just certain
things about the way things are going, the way the law
is going about a lot of this stuff.
MR. NELSON: Let me ask you this. The fact that
this is a black man over here, do you think you could
be fair to him even if ¶
JUROR BARTLETT: Yeah.
MR. NELSON: Even if the man that was killed was a
young white man?
JUROR BARTLETT: I would be as fair to him as anybody else.268
No further questions were asked of juror Bartlett or any other
member of the panel regarding the issue of race.269 Such a voir
dire is hardly adequate to reveal the "[m]ore subtle, less
consciously held racial attitudes" that the Supreme Court described in Turner v. Murray.270
Despite the limitations of Batson v. Kentucky and Turner v.
268. Record at 593 - 94, State v. Pace, Cir. Court of
Morgan County, Decatur, Alabama, No. CC- 92- 609 (Nov. 9, 1993).
269.

Id.

270.

476 U.S. 28, 35 (1976).

Page 47

Murray in preventing racial discrimination, the Court in
McCleskey indulged in the remarkable presumption that the mere
existence of these limited procedural safeguards in jury selection were sufficient to prevent racial discrimination in every
capital case. At the same time, the Court discounted evidence
which established that in reality the race of the victim and the
race of the defendant actually influenced the sentence in
McCleskey's case and other cases despite the safeguards.
The Supreme Court decision in McCleskey v. Kemp is a badge
of shame upon American's system of justice. It is a manifestation of indifference on the part of the Court to secure justice
for racial minorities in cases in which there is a long history
of discrimination and there is every indication that racial
prejudice influences the vast discretion exercised in making the
highly charged, emotional decisions about who is to die. The
McCleskey decision is worthy of the universal and scathing criticism visited upon Swain v. Alabama.
V. CONCLUSION
There is enormous public support for the death penalty in
the United States, but little honest discussion of the inequities
involved in its imposition. Many public officials continue to
peddle the preposterous notion that we may ignore over two centuries of history in race relations as easily as we may ignore
yesterday's weather. They readily admit racial discrimination up
until 1964, or 1972, or even until yesterday, but argue that it
suddenly, magically just ended. Unfortunately, this does not
square with the reality of race relations in the United States
today. As Justice William Brennan observed in his dissent in
McCleskey v. Kemp:
[I]t has been scarcely a generation since this
Court's first decision striking down racial segregation, and barely two decades since the legislative
prohibition of racial discrimination in major domains
of national life. These have been honorable steps, but
we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. . . . [W]e remain imprisoned by the
past as long as we deny its influence on the present.271
The courts and legislatures have made a tragic mistake by
substituting a notion of what the criminal justice should be for
what it is. Citizens, judges, the bar, and the press would like
to believe we have a system which equally and fairly dispenses
justice. But neither legal presumptions nor legal fictions will
make it so. As Justice Thurgood Marshall said in another context, "constitutionalizing [the] wishful thinking" that "racial
discrimination is largely a phenomenon of the past" does a "grave
disservice . . . to those victims of past and present racial
271. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan,
J., dissenting.).
Page 48

discrimination."272
The criminal justice systems in many parts of the country
have suffered from years of neglect, inadequate funding and other
problems. Often they have been entrusted to persons with neither
the ability nor the inclination to carry out their high functions. Members of racial minorities continue to be underrepresented in all positions in the criminal justice system. It
should not surprise anyone that the problems of racial exclusion
and racial discrimination are greater there than in other parts
of our society.
The price paid for the denial of racial discrimination by
courts, legislatures, and the bar is considerable. Courts cannot
deliver justice when they tolerate racial prejudice and racial
exclusion. Courts lose respect and credibility when they refuse
to acknowledge and remedy racial discrimination which is apparent
to everyone else. Responding to the public clamor for executions
is not justification for ignoring racial discrimination in the
court system. Courts of vengeance are not courts of justice.
There is debate over whether racial discrimination in the
infliction of the death penalty can be detected and remedied.
Some think racial discrimination is inevitable and impossible to
prevent; others think the influence of race can be eliminated.273
This question must be answered, not avoided. If racial
discrimination cannot be prevented, the death penalty should not
be carried out.274 If discrimination can be eliminated, then it
272. Richmond v. J. A. Croson Co, 488 U.S. 469, 552-53
(1989) (Marshall, J., dissenting).
273. See David C. Baldus et al., Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the
"Impossibility" of Its Prevention, Detection and Correction, 51
Wash. & Lee L. Rev. 359 (1994); McCleskey, 481 U.S. at 367
(Stevens, J., dissenting) (expressing the view that the death
penalty could be constitutionally imposed if limited to the upper
range of cases where prosecutors consistently seek death and
juries consistently impose it).
274. Callins v. Collins, 114 S. Ct. 1127 (1994) (Blackmun,
J., dissenting from the denial of certiorari) (expressing the
view that the death penalty is unconstitutional because of the
racial disparities in its infliction); McCleskey v. Kemp, 481
U.S. 279, 367 (1987) (Stevens, J., dissenting) ("If society were
indeed forced to choose between a racially discriminatory death
penalty ... and no death penalty at all, the choice mandated by
the Constitution would be plain" since racial disparities influenced by race would flagrantly violate[ ] the Court's prior
"insistence that capital punishment be imposed fairly, and with
reasonable consistency, or not at all." (quoting Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982)); Godfrey v. Georgia, 446 U.S.
420, 442 (1980) (Marshall, J., concurring in judgment) ("the
effort to eliminate arbitrariness in the infliction of that
ultimate sanction is so plainly doomed to failure that it -- and
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should be the highest priority of the courts. But to pretend it
does not exist, to deny a remedy, to deny even a hearing, is to
give up on achieving the goal of equal justice under law.
Tragically, that is what the state and federal courts have done.
In McCleskey v. Kemp, the Supreme Court asserted that evidence of racial discrimination should be taken to the legislatures.275 But legislators respond to powerful interests. The
poor person accused of a crime has no political action committee,
no lobby, and often no effective advocate even in the court where
his life is at stake. The crime debate in the United States has
become increasingly demagogic and irresponsible. There is little
reason for hope in the legislatures.
The constitutional buck of equal protection under law stops
with the Supreme Court and with judges on lower courts
throughout the land who have taken oaths to uphold the
Constitution and the Bill of Rights even against the passions of
the moment and the prejudices that have endured for centuries.
So long as racial discrimination remains a prominent feature of
the imposition of the death penalty in the state and federal
courts, the challenge of meeting the immense burden established
in McCleskey for proving racial discrimination must be accepted.
Other instances of discrimination must be identified and
challenged. State constitutional guarantees must be asserted as
a basis for challenging discrimination in the infliction of the
death penalty.276
Silence about racial discrimination in capital cases will
only allow it to continue to fester. Wishful thinking cannot
take the place of dealing with reality. Decisions tolerating
racial discrimination must be assailed until, like Swain v.
Alabama, they are rejected and replaced with standards that
acknowledge and respond to the influence of racial prejudice in
the criminal courts in general and in capital cases in particular.

(..continued)
the death penalty -- must be abandoned altogether").
275.

McCleskey, 481 U.S. at 319.

276. See, e.g., Foster v. State, 614 So. 2d 455, 465 - 68
(Fla. 1992) (Barkett, J., dissenting) (suggesting a standard for
analyzing claims of racial discrimination in the infliction of
the death penalty under the equal protection clause of the Florida Constitution); Livingston v. State, 444 S.E.2d 748, 757- 61
(Ga. 1994) (Benham, J., dissenting) (asserting that admission of
victim impact evidence violates various provisions of the Georgia
Constitution).
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