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December 10, 2001
John Touchie
Isaac's
on Chomsky
December 9, 2001
Jo Dillon
Journalist:
The CIA Wanted
Me Killed
John Chuckman
High-Tech
Puritanism
December 8, 2001
Laurence Tribe
Military Tribunals
Undermine the Constitution
Patrick
Cockburn
The
End of a Strange War
December 7, 2001
John Troyer
Blacklist Me!
Sen. Edwards
v. Ashcroft
Military
Tribunals
George Naggiar
Occupation
as Terrorism
Hugo von
Sponek
and Denis Halliday
Iraq
the Hostage Nation
David Vest
The Coen
Brothers'
Minstrel Show
Alexander
Cockburn
Sharon
or Arafat:
Who's the Terrorist?
December 6, 2001
CounterPunch Wire
Hampshire
College the First
to Condemn the War
Robert
Jensen
University
Teaching After
September 11
Jack McCarthy
Does
Tom Friedman Read
the New York Times?
Sam and
Leila Bahour
The
Psychology of a Suicide Attacker
December 5, 2001
Edward Hammond
The Only
Real Way to
Prevent Biowarfare
Harvey
Wasserman
Atomic
Treason in the House
Carl Estabrook
America's
Israel
Don Williams
Questions
Barbara Walters Didn't Ask George Bush
Cockburn/St. Clair
Liberals
Hail War as
Return of Big Government
Robert
Fisk
The
Last Colonial War?
Bahour/Dahan
It's About
the Occupation
December 4, 2001
Dave Marsh
A
Plea for Byron Parker
Rep. Ron Paul
Keep Your
Eye on the Target
Susan
Herman
Ashcroft
and the Patriot Act
Tariq Ali
The Afghan
King and the Nazis
November 30, 2001
Jordan
Green
Disappeared
in the Southland
Willliam Blum
Rebuilding
Afghanistan?
November 29, 2001
Phillip
Cryan
Defining
Terrorism
Robert Fisk
We Are the
War Criminals Now
November 28, 2001
Tom Turnipseed
A
Continuum of Terror
Patrick Cockburn
Tribal
Council:
Don't Blame It All on Taliban
Robert
Fisk
At
Last, The Truth about the Sabra and Chatila Massacres
Harry Browne
The Bill of
Rights:
They Threw It All Away
Sunil
Sharma
Suffer
Palestine's Children
November 27, 2001
Paul Coggins
Kafka and
the Patriot Act
Tariq
Ali
Tigris
and Euprhates
November 26, 2001
Robert Fisk
Blood and
Tears in Kandahar
Jeffrey
St. Clair
Boeing's
Sweet Deal
CounterPunch Wire
Human
Rights Abuses and
Nuke Waste Shipments
Alexander
Cockburn
Harry
Potter and Terrorism
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
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bin Laden and Bush
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The New Intifada:
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December 10,
2001
Death Penalty and
Race:
Partners in Injustice
By Robert Dunham
For years, study after study has established a
disturbing link between race and the death penalty.
The concerns about racial discrimination
in the administration of the death penalty persist in virtually
every jurisdiction in which death remains a legal form of punishment,
and appear intractable. And while the myth is widely held that
racial discrimination in the death penalty is exclusively a Southern
phenomenon, Philadelphia's death penalty has all the trappings
of Southern death-belt racial discrimination ... and more.
Death penalty statistics shine an ugly
spotlight on racial justice in the City of Brotherly Love.
Philadelphia's death row of 135 men and
women is larger than that of 42 states. Ninety percent of Philadelphia's
death row are racial or ethnic minorities. During one recent
period in the mid 1990s, 40 of 41 defendants sent to death row
by Philadelphia juries (97.6 percent) were black or Latino. As
of Nov. 1, Pennsylvania Department of Corrections figures revealed
that Philadelphia's ratio of African American-to-European American
death row inmates is a shocking 8.69:1 -- nearly 11 times worse
than corresponding Department of Justice figures for death rows
across the South.
A new study by the Pennsylvania Capital
Representation Project, with an anticipated year-end release
date, reveals that Philadelphia has placed the largest number
and highest concentration of black defendants on death row of
any major American city. Philadelphia is the only city in America
with more than 100 African Americans on death row, and as of
July 1, had more than three times the number of African Americans
on its death row than did any other comparably sized (1.35 million
to 1.75 million) county in the country. The others, Clark County,
Nev., and Cuyahoga County, Ohio, had 31 and 23, respectively.
The upcoming report also discloses that,
among comparably sized counties, Philadelphia had the largest
number of minorities on death row (121); the highest percentage
of African Americans on death row (83.6 percent) and the highest
percentage of minorities on death row (90.3 percent).
Philadelphia (census population 1.5 million)
had 25 more African Americans on death row than any other county,
regardless of size. Los Angeles and Harris County (Houston),
with census populations of 9.5 million and 3.4 million, respectively,
each had 87 African Americans on their death rows.
Among all counties in the country with
30 or more death-row inmates, Philadelphia also had the highest
concentration of African Americans and minorities on death row,
and the highest per capita minority death row population. The
concentration of African Americans on Philadelphia's death row
was nearly 35 percentage points higher than for Los Angeles and
more than 25 percentage points higher than for Harris County.
The concentration of minorities on Philadelphia's
death row was more than 22 percentage points higher than for
Los Angeles and nearly 25 percentage points higher than for Harris
County.
Not surprisingly, a comprehensive study
of more than 10 years of first degree murder convictions in Philadelphia
conducted by Professors David Baldus and George Woodworth of
the University of Iowa -- the nation's foremost researchers on
race and capital punishment -- published in 1998 in the Cornell
Law Review provided powerful evidence that being black significantly
increased the likelihood of receiving a death sentence in Philadelphia.
Using the same analytic and statistic
methodology routinely employed in widely accepted public health
studies, the Philadelphia study revealed that race is statistically
more likely to affect death sentencing than smoking is to affect
the likelihood of a heart attack.
The key findings in the study included
that black defendants in Philadelphia face odds that a jury will
sentence them to death that are nearly four times higher than
for non-blacks charged with similar offenses. Black defendants
are more likely to be sentenced to death than other defendants.
Killers of black victims are less likely
to be sentenced to death than killers of non-black victims.
The study documented that in Philadelphia,
the mere fact of being black is the statistical equivalent of
the most important statutory aggravating factors as a basis for
imposing the death penalty. In simple human terms, the results
of the study showed that, if the effects of racial discrimination
were removed from the process, 35 fewer African Americans would
have been sentenced to death in Philadelphia in the years 1983
to 1993 alone.
The racially discriminatory imposition
of the death penalty in Philadelphia capital cases is closely
related to the racial profiling that is endemic in the selection
of Philadelphia death penalty juries. Both the prosecution and
the defense bar have been guilty of racial profiling, but the
prosecution has historically been more successful in discriminating
because its primary target group is a racial minority.
Simply put, there are fewer blacks than
whites to strike, and so discrimination against the smaller group
has a disproportionate impact. And while race discrimination
in jury selection is unacceptable whether practiced by defense
lawyers or by prosecutors, it is particularly pernicious as part
of the policy and practice of state officials.
The practice of racial profiling in the
Philadelphia District Attorney's selection of death penalty juries
is now well documented.
TRAINING TAPE
In April 1997, in the midst of an election
campaign for Philadelphia District Attorney, the District Attorney's
office released a 1987 training videotape to the public that,
in the words of the Pennsylvania Supreme Court, "denigrated
as ridiculous'" the goal of selecting a fair and impartial
jury and offered "various racial and gender stereotypes
... as reasons to discriminate in the selection of jurors."
The tape "described in detail"
techniques for discriminating in jury selection, "including
the maintenance of a running tally of the race of the venire
panel and the invention of pretextual reasons for exercising
peremptory challenges; and a willingness to deceive trial courts
to manipulate jury panels to these ends."
The tape included such statements as:
"Let's face it, ... there's the blacks from the low-income
areas[,] ... you don't want those people on your jury."
"You know, in selecting blacks,
you don't want the real educated ones." "In my experience,
black women, young black women, are very bad." "You're
not going to have some brain surgeon from Chestnut Hill with
some nitwit from 33rd and Diamond."
Nor can the training videotape be dismissed
as the statements of a rogue prosecutor. One local journalist
reported that D.A. jury selection training well into the 1990s
showed that the practice had not changed.
Notes from one of the lawyers present
at the jury selection training program -- conducted by another
prosecutor several years after the videotaped training -- disclosed
that prosecutors were again taught such things as "The ideal
jury, 12 Archie Bunkers, will convict on little evidence."
"If you wanted, you could strike
almost all blacks. This gives you an advantage." Both training
sessions told prosecutors to keep track of the race of jurors.
There can be little question that city
prosecutors have systemically practiced what their trainers have
preached. During the course of the landmark race study, Professors
Baldus and Woodworth had noticed a statistically significant
relationship between the racial composition of Philadelphia death
penalty juries and the disproportionate rate at which these juries
were sentencing African American defendants to death.
This observation, coupled with the disclosure
of the training tape, prompted a second Baldus study, published
earlier this year in the University of Pennsylvania Journal of
Constitutional Law, that demonstrated that the training techniques
taught in the training videotape reflected practices long in
place in the Philadelphia District Attorney's office.
This second study tracked the District
Attorney's jury selection choices over three prosecutorial administrations
between 1981 and 1997, encompassing more than 10,000 choices
to empanel or exclude prospective jurors. It revealed a consistent,
historic pattern and practice of racial profiling by city prosecutors
in the selection of capital sentencing juries. This study documented
that city prosecutors peremptorily challenged black jurors from
capital trials at double the rate that it challenged other jurors.
The study also showed that racial profiling
by the prosecution extended to the selection of non-black jurors:
city prosecutors struck non-black jurors from integrated neighborhoods
at twice the rate of jurors from highly segregated white neighborhoods.
City prosecutors have publicly criticized
the training videotape as advocating discrimination while at
the same time arguing in court that it does not evidence any
discriminatory policy or practice by the District Attorney's
office.
Instead of addressing the claims on their
merits, however, city prosecutors have resisted every request
to produce the notes of trial prosecutors that followed the practice
espoused in the training tape to keep track of the race of jurors,
have called the Baldus study "a fraud," and have personally
attacked defense lawyers for "willfully slander[ing]"
prosecutors by presenting historical evidence of discrimination.
The personal attacks on Baldus and defense
counsel who raise this issue are belied by the facts -- both
statistical and from the horse's mouth. Indeed, in the case in
which city prosecutors accused me of slander, a federal judge
granted the defendant a new trial, finding that the prosecutor
had discriminatorily excluded six black jurors because of their
race.
The supposedly "slanderous"
evidence was that, during the course of 23 homicide prosecutions,
the trial prosecutor had struck black jurors 3.3 times more frequently
than white jurors, and 10 times more frequently in the case actually
before the court.
The prosecutor had stated on the record
that she could not tell a juror's race simply by looking at him
or her, but that she had struck 12 of the 14 jurors she thought
were black. (She also stated on the record that people might
mistake one Jewish juror as being black because the juror had
curly hair.) The prosecution exercised 15 peremptory challenges
in the case, 12 directed at African Americans, one at a Latino
prospective juror and two at white prospective jurors.
The prosecutor also had opposed a defense
motion to strike a juror for cause who had admitted feeling prejudiced
against the defendant because he was black and the juror had
twice been the victim of crimes committed by black perpetrators.
OTHER FACTORS
Other factors -- some that on the surface
appear to be race neutral -- almost certainly influence the racially
disproportionate application of the death penalty in Philadelphia.
For example, Pennsylvania is one of only two states in this country
that limits a jury's capital sentencing options to life without
possibility of parole or death but does not instruct sentencing
juries what a life sentence means.
The National Jury Project survey of capital
sentencing jurors reveals that, among all the life without parole
states, Pennsylvania's jurors were the least informed as to the
meaning of a life sentence. Fully half of the jurors surveyed
believed that a defendant sentenced to life in Pennsylvania would
receive parole after 12 to 14 years.
Studies uniformly show that jurors are
more and more likely to return death sentences as they believe
that defendants will serve less and less time in prison. But
no one -- not one person -- in the history of Pennsylvania's
death penalty statute who received a sentence of life without
parole after being capitally prosecuted has ever had a reduction
of that life sentence.
There can be little question that some
unquantifiable number of capital sentencing juries have imposed
death sentences out of fear caused by the false choice of sentencing
options that results from the systemic failure to explain our
sentencing option. The failure to provide a truthful life without
parole sentencing instruction is facially race neutral, but as
Willie Horton has taught us, the fear that a defendant will pose
a future danger to society is not.
When prosecutors select for racially
insulated white jurors who are the most geographically isolated
from African Americans, they select for jurors who are the most
fearful of black defendants and most likely to mete out a death
sentence out of erroneous fear of the defendant's future release.
Similarly, Pennsylvania's aggravating
circumstances that support imposition of death are facially race
neutral, but are not necessarily race neutral in application.
The facially neutral aggravating circumstance that a defendant
has a significant history of prior felony convictions involving
the use or threat of violence -- which has been judicially interpreted
to include non-violent burglaries and criminal trespasses, as
well as juvenile adjudications for offenses equivalent to burglary
and trespass -- will not be race neutral in application if minority
offenders are disproportionately the subjects of the juvenile
justice system, disproportionately prosecuted for burglary and
trespass, and are disproportionately convicted.
But this is what a recent study by the
National Council on Crime and Delinquency suggests.
More black defendants will have a history
of felony convictions than white defendants, for the same conduct.
And the more racially isolated and fearful the jury, the more
likely they are to deem that history "significant"
and to find it decisive as a basis to sentence the defendant
to die.
And so it goes. The influence of race
permeates the death penalty, in Philadelphia and nationally.
Its pernicious effects have placed defendants
on death row who, but for their race, would have been spared
death, and perhaps acquitted. And even where its effects cannot
be quantified, the specter of discrimination undermines confidence
that justice will, or even can, be done in capital cases, and
in the integrity of the judicial process.
Robert Dunham
is the director of training for the Capital Habeas Unit of the
Pennsylvania Capital Representation Project of the Philadelphia
Federal Defender.
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