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"At Least Five Men Who Were Sentenced to Death in Georgia had Lawyers who Referred to Them in Court as 'Niggers.'"

Georgia’s Racist Death Penalty

by HEATHER GRAY

Thinking back on 2007, one of the major victories for human rights was the end of the death penalty in New Jersey. On December 13, 2007 the New Jersey legislature repealed the cruel practice and we are told that Governor Jon S. Corzine will sign the bill. New Jersey is the first state to ban the death penalty since executions began again after the U.S. Supreme Court’s Gregg v Georgia decision in 1976. We in Georgia feature considerably in the recent efforts to end the death penalty in the United States. This is probably because Georgia has an outrageously cruel history of executing minors, mentally retarded, mentally ill and particularly Black males who have been accused of killing whites. Our notorious racist history is prime grounds for resistance.

The U.S. record on capital punishment overall, however, is dismal. With New Jersey’s decision, there are now 37 states with the death penalty and 13 without. Compared to the rest of the industrialized world the U.S. stands as one of the most backward regarding capital punishment – all of Western Europe, most of Eastern Europe, Russia, Australia, Canada, South Africa, have all abandoned the death penalty. In fact, according to sociologist Michael Radelet in his article "Thirty Years after Gregg", "in 2005, 94 percent of all known judicial executions (those imposed by courts of law) were carried out in just four countries: China, Iran, Saudi Arabia, and the United States."

Radelet says further that the U.S. "Supreme Court decisions can be reflective of standards of decency, albeit belatedly, (as) in March 2005 the Court finally banned the death penalty for prisoners who committed their crimes prior to their eighteenth birthdays." The age of 18 is the international standard. He tells us that between 1990 and December 2005 Amnesty International documented 46 executions of child offenders in eight countries (the Democratic Republic of the Congo, Iran, Nigeria, Pakistan, Saudi Arabia, the U.S., China and Yemen). In that time period there were 19 executions of child offenders in the United States giving it the world record for this barbaric procedure.

Capital punishment in the U.S. is also extremely racist in nature and the excellent work by Iowa University law professor David Baldus and his colleagues clearly demonstrates this reality. Baldus reports in 1990 that in Georgia "the death sentence was four times more likely to be applied when the victim was white rather than Black and that Blacks who kill Whites are 11 times more likely to receive the death penalty then Whites who kill Blacks" (Georgia Moratorium Campaign).

Racist traditions in criminal justice are definitely maintained in Georgia’s courtrooms. Georgia attorney Stephen Bright notes in the Santa Clara Law Review "At least five men who were sentenced to death in Georgia had lawyers who referred to them in court as ‘niggers.’"

This also demonstrates another major problem with death penalty convictions, which is that they are generally reserved for the poor who cannot afford other than court appointed attorneys who are renowned for not pursuing justice for their clients or have no resources for adequate defense.

Here’s some background on critical Georgia cases regarding challenges to the death penalty.

In 1972 the Furman v Georgia case was decided by the U.S. Supreme Court. The argument under Furman was of the capricious and racist nature of the death penalty in the United States. In a 5 to 4 decision, the court overruled the use of the death penalty. The justices expressed concern about the "standardless discretion" of death penalty convictions.

After Furman, the implementation of capital punishment was suspended and the states went back to the drawing board to develop procedures they hoped would pass muster with the court. They needed to prove to the Supreme Court that they had a standardized process that would eliminate the capricious application of the death penalty. Florida led the way in this, but by 1976, Radelet notes that 35 states had passed new death penalty laws. Georgia was one of them.

By 1975 Gregg v Georgia was before the Supreme Court along with cases from other southern states–North Carolina, Louisiana, Florida and Texas – saying that they had resolved the problem. The court agreed that the statutes presented by the states with "guided discretion" for juries in death penalty convictions likely resolved the problems referred to in the Furman case. After the Court’s Gregg decision announcement in 1976 the states once again resumed killing their death row inmates. Radelet makes convincing arguments in his 2006 article, however, that since Gregg the new statutes did not resolve the random and capricious nature of death penalty convictions!

The third and critical case presented before the court by Georgia was McClesky v Kemp in 1987 (Kemp being the Superintendent of the Georgia Diagnostic and Classification Center in Jackson, Georgia where death row inmates are housed and executed). The Baldus study was presented to the Supreme Court stating that McClesky, a Black male accused of killing a white male, was given the death penalty under racially biased conditions relating to the race of the victim. The Court ruled that McClesky’s equal protection had not been violated.

The Supreme Court did not allow for McClesky to demonstrate the glaring institutional racism in America as his defense, rather he had to prove that there had been a diliberate attempt by Georgia authorities to violate his "individual" rights. McClesky was executed by the State of Georgia on September 25, 1991.

On September 24, 1991, the day before McClesky was executed, I interviewed attorney Stephen Bright on my radio program. There was still hope that the Court would stop the procedure. It was not to be. Activists in Georgia quickly transcribed the interview as McClesky wanted to read it. Later in the week I went to McClesky’s funeral in Atlanta.

The history of the death penalty in Georgia demonstrates the egregious ongoing racist nature of the punishment as demonstrated in a fascinating article by "The Athens Observer" in 1994 entitled "Sentenced to Death." The paper states, "Racism is the vilest and most notorious aspect of the unfairness that has infected Georgia’s death penalty throughout its history. It is a tragic fact that traditionally capital punishment in Georgia has been used to perpetuate white supremacy." This continues today, of course!

What is interesting about "The Athens Observer" article, however, are the criteria for crimes that were given the death penalty in Georgia. Clearly, as indicated by the so-called crimes, there was significant resistance by African slaves to their oppression and efforts by abolitionists attempting to free the slaves, none of which was appreciated by Georgia’s white elite.

Here’s a summary on how historically you could be given a death penalty conviction in Georgia.

In 1775 capital crimes involved "any slave who killed a white person, grievously wounded, maimed or bruised a white person, was convicted for a third time of striking a white person, raised or attempted an insurrection, or endeavored to entice a slave to run away and leave the colony. The 1755 law also made it a capital crime for a slave to steal slaves, to administer poison to anyone, to burn or destroy stacks of crops, to set fire to tar or turpentine barrels, or to attempt to run away from his master…."

In 1816, "Georgia statute made the following acts capital crimes, but only if committed by a slave or a ‘free person of color’: poisoning or attempted poisoning; insurrection or attempted insurrection; rape or attempted rape of a white female; assaulting a white person with a deadly weapon or with intent to murder; maiming a white person; and burglary."

To maintain slavery, in 1829 Georgia decided to punish white abolitionists. In 1829, "whites could be executed for introducing into Georgia, or circulating in Georgia, any publication for the purpose of inciting a revolt among the slaves." This statute was again repeated in 1863 in the midst of the Civil War.

The racist nature of the death penalty in Georgia, and throughout America itself, is appalling. When Georgia began executing death row inmates with a vengeance after the 1976 Gregg decision, the first one was in 1983 and 14 in total throughout the 1980s. Many of us involved with the Georgia Committee Against the Death Penalty would make the trek to the Jackson Diagnostic Center, about 45 miles south of Atlanta, to be outside the prison when the executions took place. Invariably the Klu Klux Klan was there to celebrate the death of yet another Black inmate.

The ritual surrounding the executions at Jackson is always surreal. When you enter the grounds of the prison the guards will search your car, ask if you are for or against the execution and then point you in the appropriate direction. Invariably we would form a circle and sing protest or peace songs while the Klan in the opposite area chanted their vicious racial slurs. Ultimately, the guards will inform us when the inmate, who has been strapped to the electric chair with currents coursing through his body, has been killed. The State of Georgia will also have jets flying over the Jackson prison as the inmate is being executed which is rather like some sort of decadent ritual demonstrating the State’s power over life. In some ways the inmate is a blood sacrifice to the all-powerful State.

Then I would make my way back to Atlanta on Interstate 75 as if life was somehow normal after that experience. It never is! It’s been said that if Jesus were alive today and executed people would walk around wearing an electric chair or maybe a lethal injection needle rather than a cross.

As Supreme Court Justice William Brennan said in his dissent on the McClesky case:

"Warren McClesky doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McClesky that few of the details of the crime or of McClesky’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McClesky that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received the death sentence.Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other combination of defendant and victim. The story could be told in a variety of ways, but McClesky could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died."

Any who thinks that racism and the maintenance of white supremacy is not a leading reason for implementing the capital punishment in the United States must be kidding themselves. As Supreme Court Justice Harry Blackmun ultimately conceded, "Even under the most sophisticated death penalty statutes, race continues to pay a major role in determining who shall live and who shall die." Hopefully, the wise decision by the New Jersey legislature to end the death penalty bodes well for an America that might sometime rid itself of the scourge of capital punishment.

HEATHER GRAY produces "Just Peace" on WRFG-Atlanta 89.3 FM covering local, regional, national and international news. She can be reached at hmcgray@earthlink.net.