Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA.
An NACDL Director, he has served people facing the death penalty at trials,
on appeals and in post-conviction proceedings since 1979. He has taught courses on
capital punishment, criminal procedure and international human rights at Yale, Harvard,
Georgetown, Northeastern, Florida State and St. Mary's law schools; and has
testified extensively before the U.S. Congress and many state legislatures.
Capital punishment, a direct descendant of lynching and other forms of racial violence, remains one of America's most prominent vestiges of slavery and racial oppression.
The U.S. General Accounting Office analyzed 28 studies of capital sentencing and found a "remarkably consistent" pattern of racial disparities in capital sentencing throughout the country.1
Although African-Americans make up only12 percent of the total United States population, half the victims of homicides in the last 25 years have been African-American. Yet 85 percent of the cases in which the death penalty has been carried out have involved white victims.
One of the most recent findings of racial discrimination was made last summer by the International Commission of Jurists, an organization composed of jurists from around the world, after a visit to the United States and extensive study by members from Australia, India, Nigeria and Sweden.2 Racial disparities have been documented by other observers as well.3
Racial discrimination is particularly evident in some jurisdictions. 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, found that "Harris County has sent blacks to death row nearly twice as often as whites during the last 10 years, a growing imbalance that eclipses the pre-civil rights days of 'Old Sparky,' the notorious Texas electric chair."4
In Florida, which has the nation's third largest death row, the Racial and Ethnic Bias Commission of the Florida Supreme Court found that "the application of the death penalty in Florida is not colorblind." Of the 14 people executed by Alabama, 11 have been African-American.
There have been particularly pronounced racial disparities in federal capital prosecutions. Of the first 83 federal capital prosecutions, 68 (82 percent) have been against members of minority groups. Forty-seven of the defendants have been African-Americans, 11 have been Hispanics, five have been Asian and 14 have been white.
Nevertheless, courts have become so indifferent to racial discrimination and have erected such unreasonable burdens of proof, created such difficult legal standards to prevail on a claim of discrimination and provided for such minimal remedies upon a finding of discrimination that it often appears fruitless to raise a claim of racial discrimination.
However, because race is such a strong and illegal influence in capital sentencing, as well as elsewhere in the criminal justice system, it is imperative that issues of discrimination be raised and litigated. The barriers to prevailing on claims of racial discrimination are substantial, but not insurmountable. Even the extraordinary unwillingness of courts to deal with race issues can be beneficial on occasion. As will be discussed later in this column, there are cases in which courts have reversed on other grounds in order to avoid even mentioning the race issue presented to them.
This column looks briefly at some of the issues of racial discrimination that frequently arise in capital cases.5 It examines the historical 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 ways to confront racial bias in defending a client facing the death penalty.
Legal Lynchings
An historical context is important in all sorts of legal work, but it is particularly important in the area of capital punishment.One who is not familiar with this history may find it useful to read David M. Oshinsky's "Worse than Slavery:" Parchman Farm and the Ordeal of Jim Crow Justice (Free Press, 1996), a history of Mississippi's use of its criminal courts to deny freedom to slaves after emancipation; Fox Butterfield's All God's Children: The Boskey Family and the American Tradition of Violence (Knopf, 1995), which follows several generations of one family from slavery in South Carolina to the present; and Dan T. Carter's Scottsboro: A Tragedy of the American South (LSU Press, rev. ed. 1992), which not only describes the case of the "Scottsboro Boys" who were sentenced to death in Alabama in 1932, but also provides an excellent history of how racial prejudice influenced the criminal courts in the 1930s and 1940s.6
From colonial times until the Civil War, the criminal law in many states expressly differentiated between crimes committed by and against blacks and whites.7 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 20 years.8 The rape of a black woman was punishable "by fine and imprisonment, at the discretion of the court."9
Disparate punishments -- exacted by the courts and by the mob -- based upon both the race of the victim and the race of the defendant have continued in practice long after the abolition of slavery.
At least 4743 people were killed by lynch mobs.10 More than 90 percent of the lynchings took place in the South, and three-fourths of the victims were African-Americans.
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."11 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'.12
The process of "legal lynchings" was so successful that in the 1930s, two-thirds of those executed were black.13
Powell v. Alabama,14 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. The youths were tried in groups of three while mobs outside the courtroom demanded the death penalty.15
The accused were all represented by two lawyers; one was a drunk and the other was senile.16 All-white, all-male juries sentenced the accused to death. Although there was a national outcry about the injustice of such summary trials, the fact that the youths had not been lynched was seen as progress in Scottsboro.
In one of many examples of legal lynchings, a man was hung immediately after a trial in Kentucky that lasted less than an hour.17
The Louisville Courier-Journal "tried to put the best light on the execution," saying that although it was a little hasty, "[t]he 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."18 The paper also observed that since the case involved a Negro who had raped a white woman, "no other result could have been reached, however prolonged the trial."19
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. Between 1924 and 1972, Georgia executed 337 black people and 75 white people.
The death penalty was held unconstitutional in Furman v. Georgia in part because of discrimination and arbitrariness in its infliction.20 Although the new laws passed in response to Furman, some of which were upheld by the Supreme Court in 1976, were supposed to prevent discrimination, the new statutes have failed to end the influence of racial prejudice in the use of the death penalty.
Discrimination Under New Statutes
Discrimination in capital cases continues because of the vast discretion that prosecutors are given in deciding whether to seek the death penalty and the substantial underrepresentation of racial minorities in positions as judges, jurors, prosecutors and attorneys is in the criminal justice system.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."21 Too often the decisions in capital cases reflect only the view of reality seen by white Americans.
The two most important decisions in any capital case are made by the district attorney, who, in most jurisdictions, is a white man. The district attorney decides whether to seek the death penalty and, if death is sought, whether to withdraw a notice to seek death as part of a negotiated plea disposition.
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. From among the many cases where death could be sought, the local district attorney decides which few will be prosecuted as capital cases. Often this decision reflects the prosecutor's and the community's prejudices. For the white men who usually make these decisions, the crime may seem more heinous or horrible if the victim is a prominent white citizen.
Prosecutors often defend their decisions to seek death, asserting that they are based on purportedly race neutral factors, such as the strength of the evidence brought to them by law enforcement. However, the relative strength of the evidence in different cases is often the result of racial bias by the police. Many police departments investigate crime in the white community much more aggressively than crime in the black community.
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 over 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 usually far more important to the district attorney in deciding whether to seek death than the criteria set out in the state's death penalty statute.
Many capital cases are tried in white flight suburban communities where there are few people of color in the jury pools, but many people of color coming before the courts as defendants. Counties like Baltimore County, Maryland, and Cobb County, Georgia, account for disproportionately high numbers of persons sentenced to death in those states.
But even in communities where there is a substantial minority population, prosecutors are often successful in preventing or minimizing participation by minorities.
The "death qualification" process of jury selection in capital cases22 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 v. State,23 a Georgia prosecutor used all eleven of his jury strikes against African-Americans to obtain an all-white jury in a capital case. In a challenge to those strikes under Batson v. Kentucky,24 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' hesitance to vote for death.25
When a prosecutor uses the overwhelming majority of his jury strikes against a racial minority, that minority is prevented from participating in the process. A jury does not represent "the conscience of the community on the ultimate question of life or death"26 when a substantial part of the community is not represented on it.
Few people familiar with the state of race relations in the United States today would deny that there is a substantial 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 in a case prosecuted by a white prosecutor before a white judge and an all-white or predominantly white jury.
The disparities described in the opening paragraphs of this article confirm that race plays a critical role in who is sentenced to death. Nevertheless, in McCleskey v. Kemp,27 the Supreme Court, by a 5-4 vote, allowed Georgia to carry out its death penalty law despite racial disparities that would not be tolerated in any other area of the law. The Court rejected challenges based on the Equal Protection Clause of the Fourteenth Amendment and the Eighth Amendment's Cruel and Unusual Punishment Clause.
McCleskey's evidence established that although African-Americans were the victims of over 60 percent of the murders in Georgia, over 80 percent of the cases in which death was imposed involved murders of whites.
Professor David Baldus and his associates conducted two studies of the influence of race in the application of the death penalty, examining over 2000 murder cases which occurred in Georgia during the 1970s.28 They found that prosecutors are more likely to seek the death penalty when the victim is white and juries are more likely to impose the death penalty in such cases.
The studies revealed that defendants charged with murders of white persons received the death penalty in 11 percent of the cases, while defendants charged with murders of blacks received the death penalty in only one percent of the cases. Blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks.
Controlling for all other variables, the studies found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. This is a much stronger correlation than the relationship between smoking and cancer or heart disease.
However, the Supreme Court found that the studies established "at most . . . a discrepancy that appears to correlate with race"29 and declined "to assume that that which is unexplained is invidious,"30 thus holding the disparities were 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."31 Justice Brennan, in dissent, characterized this concern as "a fear of too much justice."32
McCleskey is very similar to the Supreme Court's decision in Swain v. Alabama,33 in which the Court expressed its disapproval of racial discrimination in the exercise of peremptory challenges, but then set a virtually impossible standard of proof for establishing it.
The Court held in Swain that a defendant could prevail only by showing that 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."34
It refused to find discrimination even though the record established that no black person had ever served on a jury in either a criminal or civil case in Talladega County, Alabama, where African-Americans constituted 26 percent of the population. The Court held that record failed to establish that it was the prosecutor who was responsible for the complete exclusion of African-Americans from jury service. Finally, after 20 years of "almost universal and often scathing criticism"35 of the Swain decision, its crippling standard of proof was modified in Batson v. Kentucky.36
McCleskey deserves the same criticism. Justice Lewis Powell, who cast the deciding vote and wrote the majority opinion in the 5-4 decision in McCleskey, expressed his regret, after leaving the Court, at his vote in the case.37 But McCleskey will be overruled only if defense lawyers continue to document racial discrimination in capital cases.
Failure to Pass Racial Justice Act
Despite the pronounced racial disparities in the infliction of the death penalty in both state and federal capital cases, Congress has steadfastly refused to pass the Racial Justice Act, a modest proposal that would have required courts to look behind the disparities to determine whether they were related to race or some other factor.It is not surprising that Congress failed to pass the Racial Justice Act. Congress refused to pass an anti-lynching law when African-Americans and other minorities were being hanged. Instead, the federal government put much of its law enforcement efforts into pursuing moonshiners.
There is no large or powerful constituency concerned about racial discrimination in capital cases. 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. Discrimination must be challenged in individual cases.
Reluctance of Courts To Address Racial Issues
Courts go to extraordinary lengths to avoid racial issues. As a result, appellate opinions often provide little encouragement or guidance for the lawyer seeking to challenge discrimination. For example, despite the extraordinary history of discrimination with regard to the infliction of the death penalty upon African-Americans for rape, the Supreme Court did not even mention race in striking down the death penalty for rape in Coker v. Georgia.38The Georgia Supreme Court held in a capital case that a judge should be disqualified from a case because he actively opposed a motion to recuse him.39 The court did not even mention that the motion to recuse was based primarily on the judge's long history of racial discrimination. Nor did the court discuss evidence presented in the trial court 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.
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 African-Americans.40
The Alabama Court of Criminal Appeals granted post-conviction relief in a case without any mention that the prosecutor had used 26 peremptory jury strikes against African-Americans after dividing potential jurors into four lists under the headings, "strong," "medium," "weak" and "black."41
The reported opinions in these cases provide no hint that the cases involved issues of racial discrimination. Apparently, the courts are defensive about the racial discrimination that takes place in what is supposed to be a system of equal justice. But these cases illustrate that compelling evidence of racial bias can often be found if defense counsel look for it.
A number of tools remain for the advocate willing to challenge racial prejudice aggressively in capital prosecutions. Space permits only a brief summary of some of them.
Voir Dire on Racial Attitudes
In Turner v. Murray,42 the Supreme Court recognized the danger of racial prejudice influencing the sentencing decision in capital cases and held that in any interracial capital case, counsel is entitled to ask jurors about their racial attitudes on voir dire. The Court observed in Turner, "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. . . ."43 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."44The Court also observed that "[m]ore subtle, less consciously held racial attitudes" -- unconscious racism -- "could also influence a juror's decision in [the] case."45 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."46 However, despite its recognition of the role that racial attitudes could have in influencing the sentencing decision, the Court's decision in Turner is limited. It applies only to cases involving interracial crimes.47 Thus, a person of color who is charged with the murder of a member of his own race is not automatically entitled under Turner to ask prospective jurors about their racial attitudes. In those cases, a showing of the need for such questions must be made pursuant to Ham v. South Carolina.48
Even in interracial crimes, Turner allows trial judges to limit voir dire. Nonetheless, in those cases in which it applies, Turner provides counsel with an important entitlement to question jurors about their racial attitudes. Efforts must be made to broaden the application of Turner and to use it effectively.
Individual, sequestered voir dire is essential for any meaningful questioning about jurors' experiences, attitudes, and beliefs that will reveal unconscious racism. The recognition of the role of unconscious racism in Turner also provides a useful tool for challenges to decision making by other actors in capital cases.
The racial attitudes described by the Supreme Court in Turner are not limited to jurors. Law enforcement officials, prosecutors, judges, defense lawyers, and court officials may have racial biases which influence their exercise of discretion. Turner's recognition of unconscious racism can be cited in support of efforts to discover and explore those biases.
Challenging Discrimination in Jury Selection
The Supreme Court has rejected the argument that the death qualification process denies a defendant a representative jury.49 However, a challenge should be made where the death qualification process disproportionately reduces the number of minority jurors in the venire from which the jury will be selected.Such a challenge, based on equal protection and fair cross-section principles, should be supported by a record of the number of minority jurors struck because of their conscientious scruples against the death penalty.
Remedies should be proposed, such as including more minority jurors in the venire to offset the exclusion caused by death qualification.
The Supreme Court's decisions in Batson v. Kentucky50 and J.E.B. v. Alabama ex rel T.B.51 provide a basis for challenging the use of peremptory challenges by prosecutors to exclude jurors based on race and gender.
While a prima facie case of racial discrimination may now be established based on the prosecutor's strikes in the particular case, other evidence may also be offered to support the claim of discrimination, such as strikes in other cases and other evidence of racial or gender animus. Defense counsel have also prevailed on Batson motions by putting on evidence to disprove the reasons asserted by the prosecutor for striking minority jurors.
Discrimination in Seeking Death
The Supreme Court's decision in McCleskey v. Kemp does not close the door entirely to challenges to racial discrimination based on the Equal Protection Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Supreme Court held in McCleskey that in order to prevail on a claim of racial discrimination, the defendant must show "that the decision-makers in his case acted or intend to act with discriminatory purpose."52The most critical decision-maker in a capital case is usually the prosecutor who decides to seek the death penalty. Evidence of racial bias may be shown through proof of actions or statements regarding the particular case; patterns in carrying out official functions, such as decisions to seek the death penalty, use of jury strikes and hiring practices; and other discriminatory actions which shed some light on the prosecutor's racial attitudes and intent.
Statistics alone will probably not be enough to prevail. Moreover, indigent defendants cannot afford a sophisticated multiple regression analysis such as that performed by Dr. Baldus and his colleagues in the McCleskey case.
However, documenting the actions of a particular district attorney's office in seeking the death penalty, in striking jurors, in prosecuting drug cases and in other areas can be quite revealing. Once this data is collected, further investigation into the reasons for the disparities is essential.
For example, an investigation of all murder cases prosecuted between 1973-1990 in the Georgia judicial circuit which sends the most people to the state's death row, the Chattahoochee Circuit, revealed that although African-Americans were the victims of 65 percent of the homicides in the circuit, 85 percent of the capital cases in that circuit involved white victim cases. Prosecutors in the circuit used 83 percent of their jury strikes against African-Americans, even though black people constituted only 34 percent of the population in the circuit.
Further investigation revealed that the reason for the disparities in seeking the death penalty was racial bias by the prosecutors in their dealings with the families of the victims. In cases involving white victims, the prosecutors met with the victim's family and deferred to their family's decision about whether to seek the death penalty. But prosecutors did not even consult with family members in cases involving black victims.
In one 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. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know.
The prosecutor obtained the death penalty at trial. He was rewarded with a contribution of $5000 from the contractor when he successfully ran for judge in the next election.
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. However, in cases involving the deaths of African-Americans, the families were often not even notified of the dates of proceedings or the resolution of the case with a plea bargain.
As mentioned previously, attorneys in Kansas City developed evidence that prosecutors there 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.
Because the Supreme Court in McCleskey interpreted federal law to set high barriers to prevailing, state constitutional guarantees should also be asserted as a basis for challenging discrimination.53
'Wishful Thinking'
There is enormous resistance in the courts to grappling with issues of race in criminal cases. 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 discrimination."54
In McCleskey v. Kemp, the Supreme Court asserted that evidence of racial discrimination should be taken to the legislatures.55 But legislators respond to powerful interests. The poor person accused of a crime has no political action committee. 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.
Because racial discrimination remains such a prominent feature of the imposition of the death penalty, the challenge of meeting the immense burden established in McCleskey for proving racial discrimination must be accepted. And the McCleskey decision must be assailed until, like Dred Scott v. Sandford,56 Plessy v. Ferguson,57 and Swain v. Alabama,58 it is 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.
Notes
1. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990).2. International Commission of Jurists, Administration of the Death Penalty in the United States (June 1996).
3. In addition to the studies cited by the General Accounting Office in its report, mentioned in note 1, 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).
4. Bryan Denson, Death Penalty: Equal Justice? The Houston Post, Oct. 16, 1994, at A1.
5. For more elaborate treatment of the issues discussed here see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995), and other authorities cited therein as well as in this column.
6. For another excellent account of the case of the "Scottsboro boys," see James Goodman, Stories of Scottsboro (1994).
7. A. Leon Higginbotham, Jr., In the Matter of Color: Race in the American Legal Process 256 (1978).
8. Id.
9. Id. See also McCleskey v. Kemp, 481 U.S. at 279, 329-32 (1987)(Brennan, J., dissenting).
10. 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.
11. 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)).
12. Dan T. Carter, Scottsboro: A Tragedy of the American South 115 (rev. ed. 1992).
13. Colbert, supra, at 80.
14. 287 U.S. 45 (1932).
15. Carter, supra, at 20-48.
16. Id. at 18-19, 22.
17. George C. Wright, Racial Violence in Kentucky 1865-1940; Lynchings, Mob Rule, and 'Legal Lynchings' 252 (1990).
18. Id. at 253.
19. Id.
20. Furman v. Georgia, 408 U.S. 238, 249-52 (1972) (Douglas, J., concurring), id. at 291-95 (Brennan, J., concurring), id. at 306, 310 (Stewart, J., concurring), id. at 364-66 (Marshall, J., concurring), id. at 311 (White, J., concurring).
21. Lingo v. State, 437 S.E.2d 463, 468 (Ga. 1993) (Sears-Collins, J., dissenting).
22. See Witherspoon v. Illinois, 391 U.S. 510 (1968); Wainwright v. Witt, 469 U.S. 412 (1985); Lockhart v. McCree, 476 U.S. 162 (1986).
23. Lingo v. State, 437 S.E.2d 463 (Ga. 1993).
24. Batson v. Kentucky, 476 U.S. 79 (1986).
25. Lingo v. State, 437 S.E.2d at 466-67.
26. Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).
27. McCleskey v. Kemp, 481 U.S. 279 (1987).
28. The studies are discussed extensively in Baldus et al., supra, 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).
29. McCleskey v. Kemp, 481 U.S. 279, 312 (1987).
30. Id. at 313.
31. Id. at 314-15.
32. McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).
33. Swain v. Alabama, 380 U.S. 202 (1965).
34. Id. at 223.
35. McCray v. New York, 461 U.S. 961, 964 (1983) (Marshall, J., dissenting from denial of certiorari).
36. Batson v. Kentucky, 476 U.S. 79 (1986) (holding that a prima facie case of discrimination could be established by the strikes in the particular case before the court).
37. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr.: A Biography 451 (1994).
38. Coker v. Georgia, 433 U.S. 584 (1977).
39. Isaacs v. State, 355 S.E.2d 644 (Ga. 1987), cert. denied, 497 U.S. 1032 (1990).
40. 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.
41. Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App. 1994).
42. Turner v. Murray, 476 U.S. 28 (1976).
43. Id., at 35.
44. Id.
45. 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.").
46. Turner v. Murray, 476 U.S. at 35.
47. Id. at 36.
48. Ham v. South Carolina, 409 U.S. 524 (1973).
49. Lockhart v. McCree, 476 U.S. 162 (1986).
50. Batson v. Kentucky, 476 U.S. 79 (1986).
51. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
52. McCleskey v. Kemp, 481 U.S. at 292-93.
53. 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).
54. Richmond v. J. A. Croson Co, 488 U.S. 469, 552-53 (1989) (Marshall, J., dissenting).
55. McCleskey v. Kemp, 481 U.S. at 319.
56. Dred Scott v. Sandford, 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").
57. Plessy v. Ferguson, 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").
58. Swain v. Alabama, 380 U.S. 202 (1965).