From Lynching to Lethal Injection

Jan Boudart

THERE IS AN inextricable link between the racism in our criminal justice system and the existence of the death penalty itself.

During slavery the criminal code unabashedly authorized harsher punishments for Blacks (both slave and free) than for whites.(1) In addition crimes against whites, in a legal sense, were considered more serious. Before passage of the Fourteenth Amendment in 1868, many state laws expressly authorized discrimination.

Even after slavery was abolished, there was a culture of acceptance for the lynching of freedmen in the South, but also on occasion in the North. Partly due to the work of Ida B. Wells, lynching became an embarrassment to the United States and particularly to the states where it was carried out.

A racist death penalty with quick legal execution became an effective substitute, i.e. it worked to intimidate and subordinate the Black community and made killing African Americans respectable. According to a source quoted by Leon F. Litwack in his book Been in the Storm So Long: The Aftermath of Slavery (1979), “The best men in the State admit that no jury would convict a white man for killing a freedman, or fail to hang a Negro who had killed a white man in self-defense.”

These issues of control and domination persist. Prosecutors have the power of discretion to decide when the death penalty will be pursued, just as whites formerly decided who would be lynched.

When in 1990 and again in 1994 the U.S. House of Representatives presented a Fairness in Death Sentencing Act, state Attorneys General and prosecutors in death-penalty states countered with absurdly contradictory refutations. They argued that racial discrimination “did not exist so the act was unnecessary,” while at the same time saying “racial discrimination in the use of the death penalty was inevitable and impossible to prevent, detect, or remedy.”

Further, they threatened that to redress the discrimination meant quotas or abolition of the death penalty altogether. (Surely, if such a choice were demanded, the death penalty would have to be abolished.)

Enter the electoral process. The spurious arguments of the prosecutors carried considerable weight with legislators who feared their support of the act “could lessen the viability of the death penalty in their states.” Read, “May prevent my reelection.”

Thus we can see that our past, as a nation dependent on African slave labor, today saddles us with the death penalty when the whole rest of the Western World has rejected it. It is noteworthy that from its roots as a weapon of blatant and legal domination over the slave population, the death penalty has evolved into the more subtle and legal domination that we observe today.

In spite of the obvious racism with which the death penalty is administered, Kentucky is the only state that has passed a “Racial Justice Act” that lets defendants use statistical evidence to show race was a factor in their death sentence.

Race is almost always cited as a factor in the plethora of studies on how the death penalty is imposed in various American jurisdictions.

An Illinois study by Pierce and Radelet dated March 20, 2002, very conservative in its methods and its conclusions, is a good example.(2) The authors observe that a hidden chain of decisions leads to imposition of the death penalty. Their data begins where the prosecutor must decide whether to seek the death penalty against a certain defendant. But by that time the defendant has already been indicted and subject to decisions by police, sheriff, sheriff’s detectives, a defense lawyer, etc.

Racism is hidden throughout the process. Nevertheless, Pierce and Radelet came to the conclusion that in Illinois the prosecutor will decide to seek the death pen<->alty based on the race of the victim, not the defendant. Studies from other states show that in many jurisdictions the victim’s race is a major influence on whether the death penalty will be sought.(3)

Race and the death penalty was the subject of the much respected 1998 Baldus study (see note 1). In a paper rich in history and detail, one table summarizes the effect of race in the administration of the death penalty.

Three sets of data — prosecutors seeking the death penalty, jurors imposing it, and overall death sentencing rates — from thirty-two states that used the death penalty are listed, and their results broken down into various time periods. The picture is complex; but the upshot is that the race of the victims was vastly more significant than that of the accused.(4)

The conclusions of the Baldus study expressed considerable disappointment that all levels of justice shy away from addressing racism in death penalty administration. But the problem is intractable at the level of the justice system, because racism is systemic in culture, education, employment, even environmental factors.

The conclusions of the Baldus 1998 study raise some intriguing insights as to why racism in death penalty administration has become a near-intractable problem. The reasons are hidden in history (as sketched above) and in the chain of decisions that lead eventually to the death penalty and the execution of a defendant.

Jury Selection and Race

Jury selection with its peremptory challenges is key to the technical reasons why the percentage of African Americans gets so high on death row.(5) Regarding the Supreme Court decision in Batson v. Kentucky,(6) Harvard’s Charles Ogletree commented that the Court misunderstands how both prosecutors and defense lawyers feel about jury selection. Both sides regard race, age and gender discrimination as “rational, ethical and necessary strategies to protect the interest of their clients.”(7)

I disagree with Ogletree on how much the Court respects and fears the power of the American legal system to defend the traditions of jury selection. If you read the Supreme Court decision on Batson v. Kentucky, you will see more weasel language in less space than was previously possible.

The Court was clearly afraid to take a stand for the Constitution they are charged to uphold. Only one justice, Thurgood Marshall, made a clear, but extremely radical stand: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”

Such a course of action would eliminate the effects of more than 200 years of history and tradition. Peremptory challenges are a treasured bailiwick of both prosecution and defense.

And the Honored Justices are correct in assuming that jury selection on the basis of race is important. (Women on the jury showed no significant difference from men.) Baldus 2001 argues that non-Blacks are more prone than Black jurors to convict and call for the death sentence. This being so, prosecutors in Pennsylvania and Texas work very hard to keep African Americans off their juries and defense lawyers do the same to get them on.(8)

[I’m using Pennsylvania and Texas as examples because Baldus et al. did their study of peremptory strikes in Pennsylvania and the Supreme Court of the United States recently (Feb. 25, 2003) made a ruling on whether jury selection strategies in Texas were arguable in the Miller-el case.(9)]

Notorious jury-selection instruction tapes or manuals, which have ostensibly been discredited and which were written for the prosecution, were created in both states. The defense has used them as a mirror image of how to influence jury selection. But the techniques work better for the prosecution.

For example, the McMahon tape has been extant in Pennsylvania since 1986. To paraphrase, it recommends the selection of successful-looking whites with “a predisposition toward . . . capital punishment and [who] accept as right and just the Government’s evidence and arguments in favor of a death sentence.”

These instructions are for the guilt-innocence phase of the prosecution not the sentencing phase. The prosecution’s targets for elimination are ‘(B)lacks from the low-income areas,’ because they may feel `resentment for law enforcement [and] . . . authority.’(10) Also dangerous are the well-educated: “doctors, lawyers, law students, social workers and teachers (unless they are `fed up’ with their black students).”

McMahon follows this with advice on how to avoid being accused of racial bias, that is, how to formulate non-race reasons for having struck every possible Black jury member. The McMahon tape has surely influenced the fact that, although Pennsylvania’s minority population is eleven percent, only Louisiana has a higher percentage of African Americans on death row.(11)

I think Pennsylvania has a problem.(12) The case of Mumia Abu-Jamal is one of Pennsylvania’s problems. Racism is rampant in his case, including the judge, Albert Sabo, who once made the statement “I’m going to help (the prosecutors) fry the n____r.”

Jury Shuffling

“Jury shuffling” has been a common practice in Texas and was one of the techniques used to select a white jury for Thomas Miller-el in 1986. Here’s how it worked. Show and tell (voir dire, the jury selection process) begins when the week’s jury pool (venire persons) appears.

The prosecution, represented by Janie Cockrell, had each venire person on a card. When she found out which of the choices look like African Americans, she shuffled the deck so they would be the last interviewed. That way she hoped that the jury would be chosen before the interviewers got to them. (After a week of show and tell, the jury pool is sent home and a new group comes on Monday.)

Justice Kennedy said the prosecutor applied this process at least three times in the selection of Miller-el’s trial jury.(13) She did it twice on her own and once after viewing the order shuffled into place by the defense.

In addition, the prosecutor would describe the process of death by injection in great detail before asking Black venire persons if they approved of the death penalty. She did not precede the same question given to whites with that gruesome introduction. Using this strategy, Cockrell could claim that Black venire persons were unsatisfactory, not because they were Black, but because they opposed the death penalty.

Also, without telling the African Americans the law on minimum convictions (five years) she would ask them what they thought a minimum sentence should be for murder. When they said twenty years, she would strike their name for cause, attributing to them the likelihood that upon hearing a case that only merited five years, they would not want to impose such a light sentence.

For whites her procedure was to explain the minimum sentence and then say something like, “If you hear a case, to your way of thinking [that] calls for and warrants and justifies five years, you’ll give it?”(14)

The statistical proof that executions occur most often when the murder victim was white, that Black defendants are more likely to be given the death sentence, and that African Americans are systematically denied their right to serve on juries indicate that African Americans do not have equal protection under the law. In employment practices, service in public facilities, and other areas where African Americans have rebelled in favor of their human rights, they have achieved more success than in their constitutional right to justice.

Prosecutors on Trial

William Kunkle was Special State’s Attorney for the 16th Judicial Circuit in DuPage County, Illinois in 1999. As such he worked hard to convict sheriffs and prose<->cutors of corruption in a rare legal proceeding, one of the only trials in U.S. history where “the people’s lawyers’” own case was on the docket.

“The case was exceptionally rare not because prosecutors [had] been accused of concealing evidence and knowingly using false evidence, but because they [had] been indicted for it. If convicted of a felony for such misconduct, it would [have been] the first time that [had] happened in the United States.(15)

The occasion for Kunkle’s Herculean task was a suit brought by Rolando Cruz against law enforcement and prosecution for his frame up, wrongful conviction, death sentence and decade-plus on Death Row.

Two detectives had quit their jobs in the sheriff’s office early in Rolando’s case rather than continue to investigate a man they were sure was innocent. An Assistant State’s Attorney had resigned rather than argue for the conviction. But in spite of his efforts to obtain justice for Cruz, and his knowledge of misconduct in the prosecutor’s office, Kunkle failed to obtain convictions.

Nevertheless, he is foursquare in favor of continuing the death penalty — with a caveat: If you want the death penalty, be sure you understand that sooner or later mistakes will be made. Sooner or later an innocent person will be executed, Kunkle says.(16)

For the last twenty-five years in Illinois, the rush to judgment has resulted in many death sentences to people ultimately proven innocent. Since 1977 more people (17) have been found innocent of the capital crimes they were convicted of than have been executed (12).

Take for example the Green-Hillyard murder, a Black couple in Washington Park, Chicago. In contrast with the Ford Heights Four case (discussed below) where the victims were white, it barely made the papers, August 15, 1982. Anthony Porter was convicted of the crime and luckily he got a great lawyer on appeal.

Anthony Porter’s family had made his funeral arrangements. He had been measured for his burial suit, chosen his last meal and was scheduled to die within forty-eight hours, when his smart but forgotten lawyer, Dan Sanders, demanded that Porter be given a competency test to see whether he was <169>intelligent” enough to be executed.

Through this tiny window-of-time jumped a group of undergraduate journalism students who proved that things were not what they seemed. Then these 20-somethings became obsessed with finding the truth.

They proved another man committed the crime, found the other man (Alstory by name), and a professional detective walked into his house and got the confession on tape. In the intervening seventeen or so years, Alstory had led a life of crime. Someone, who shall be nameless, told me he believes that Alstory killed five people while Porter was in prison, but “one for sure.”

This sort of thing bothered the Republican Governor of Illinois, George Ryan. (He was also bothered by a scandal involving truck drivers’ licenses for bribes when he was Secretary of State.) Ryan put in place a moratorium on the death penalty in January, 2000. Then he appointed a very astute group of people to the two-year Commission on Capital Punishment, assigned to study the death penalty and develop proposals to correct Illinois’ criminal justice system. The commission developed eighty-five recommendations whose implementation would have cost some money and would have had a positive effect, not just on capital cases, but all criminal justice in the State.

The next year the Illinois General Assembly (legislature) did this about it: Nothing. So, just before leaving office, Ryan emptied death row. He pardoned outright four of the “Death Row 10,” people who had been convicted because confessions were tortured out of them by detectives on Chicago’s South Side. He commuted the other death sentences<197>most to life without parole.

The recommendations are a course in law enforcement and criminal justice, not only in Illinois, but in any democratic body politic. Organized in the order that a case would develop, the Commission issued recommendations for each phase, from police and pre-trial investigations all the way through proceedings following conviction and sentence. They concluded with three general recommendations and ten regarding funding.

The report is an interesting, if not essential, read and can be found
on a link from www.centeronwrongfulconvictions.org. But for people who believe that police routinely do thorough investigations, that judges treat all lawyers fairly and that a prosecutor would not lie, some of the recommendations may come as a surprise.

One might wonder why the very first recommendation is necessary. It reads, “After a suspect has been identified, the police should continue to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.”

But what’s a sheriff to do if he has a high-publicity, four-Blacks-on-two-whites rape and double murder on his hands, and needs suspects quick? Furthermore, what if he got the public off his back by grabbing four 20-somethings from the most economically deprived suburb of Chicago and paraded them on TV as vicious, brutal murderers and rapists?

What if he further “knew” that one of these four kids would be sure to testify against the others for a reduced sentence, so the trial and conviction would be a breeze? Do you think that sheriff would instruct his detectives, “Be sure to follow up on that street file that Officer Nance turned in, because we might have the wrong guy here”?

The media are a factor in this real-life scenario. The 1978 Schmal-Lionberg murder in Homewood, Illinois was brutal; it was carried out against a young couple, recently engaged; it was aggravated by rape, by being double and by being Black on white. Local media placed the sheriff on the hot seat to do something. And he did, giving the world one of the most sensational wrongful convictions in this decade’s spate of exonerations.

This, in fact, is the Ford Heights Four, who were convicted and given very long sentences (two of them) or death sentences (two of them). The trouble was that law enforcement did have the wrong guys, not only because they were innocent, but because none would rat on the others.

All four maintained their innocence in spite of the threats and blandishments of police and prosecution. Not one would accept a reduced sentence or even his life in exchange for the lie. In the words of Kenneth Adams recalling the fifth time, after seventeen years in prison, two investigators from the State Attorney’s office approached him with a promise of freedom in exchange for testifying against the others, “They just didn’t get it; I planned to spend the rest of my life in prison.”

However, the prosecutors were able to find Paula Jones, helpless against six cops who, at retrial, held her in a motel room until she promised to cooperate again. Which brings us to recommendation 50, “. . . any discussion with a witness . . . concerning benefits . . . or detriments conferred on a witness by any prosecutor, police official, corrections official or anyone else, should be reduced to writing and should be disclosed to the defense in advance of trial.”

Had this recommendation been in force, it’s doubtful that the testimony of Ms. Jones would have been accepted<197>even in the first trial when, as a teenager, she was cajoled, threatened and terrified until she agreed to saying she was complicit in the crime and gave false testimony against the men. After denying the story during imprisonment, she returned to her previously recanted testimony and was quietly released to go home.

When DNA evidence became possible, the Ford Heights Four began to agitate for testing. Judge Sheila Murphy bucked objections from the State’s Attorney and ordered it. None of the four matched. Big surprise! Which brings us to recommendation 25, “In capital cases . . . DNA testing . . . should be permitted where it has the scientific potential to produce new . . . evidence relevant to the defendants’ assertion of actual innocence . . .”

Against further objections from the prosecutor’s office Murphy immediately released one of the four, Verneal Jimerson, literally a choir boy. (“God put me in prison for a reason,” he said, “and that is to teach the other guys about His love.”) Eventually all four were freed and the citizens of Cook County were held liable for a $36 million out-of-court settlement.

We citizens were responsible because, after all, this whole case was carried on as People of the State of Illinois vs. Dennis Williams, Verneal Jimerson, Kenneth Adams and Willie Rainge. It was all done in our name, and with our money — the arrests, the trials, the sixty-five years total imprisonment, and the “just” payment for abridged lives.(17) Besides, the out-of-court settlement kept the public from witnessing a nasty trial featuring crooked prosecution and corrupt police. Who knows who would have lost their next election had THAT happened?(18)

Other recommendations from the Governor’s commission were equally important. Accurate data collection for future studies of the death penalty, and training and support for defense lawyers and judges in capital cases, are needs mentioned in study after study from all over the United States. These topics are worthy of further writing on the death penalty.

Notes

Baldus, et al., “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 1997-1998,” 83 Cornell Law Review 1638.
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Pierce and Radelet, “Race, Region and the Death Penalty in Illinois, 1988-1997,” Oregon Law Journal, 2002 Vol. 1.
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Pierce and Radelet, ibid. in a version that I downloaded from a link at www.centeronwrongfulconvictions.org, Appendix I, 27, 32.
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Among 66 entries for race-of-defendant effects, 37 show no racial effect; 10, a significant anti-African American effect; 8, a significant anti-white effect, and 11 had no data. On the other hand, the race of the victim had a marked influence on the application of the death penalty. With the same number of entries only five showed no racial effect, 11 had no data and 51 showed that race-of-victim was significant. Delaware was the only state where significantly more death penalties were issued for murderers of African Americans than of whites. The death-penalty states with no data, or too little data, were Idaho, Kansas, Montana, Nebraska, New Hampshire (no death sentences imposed), New Mexico, New York(!), Oregon, South Dakota, Utah and Wyoming.
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Baldus et al., “The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis,” 2001, 3 U. Pennsylvania Journal of Constitutional Law 3. 124.
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Batson v. Kentucky, 456 U.S. 79 (1986) certiorari to the Supreme Court of Kentucky, No. 84-6263. Argued December 12, 1985, Decided April 30, 1986. Opinion of the Supreme Court of the United States by Justice Powell.
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Baldus 2001, op. cit.
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Thomas Joe Miller-el v. Janie Cockrell, director, Texas Department of Criminal Justice, Institutional Division, February 25, 2003 Opinion of the Supreme Court of the United States by Justice Kennedy, 537 U.S. 2003 No. 01-7662. From a link at www.thomasmillerel.org.
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The U.S. Supreme Court passed the buck back to the Court of Appeals for the Fifth Circuit as to whether Miller-el’s arguments actually proved racial discrimination in the selection of his jury.
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Baldus 2001, 42.
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Final Report of the Racial and Gender Bias Committee of the Pennsylvania Supreme Court (Chapter Six: Racial and Ethnic Disparities in the Imposition of the Death Penalty) March 4, 2003.
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This author, a white female, visited a restaurant in Pittsburgh in April, 2003 with a Black male companion. We were completely ignored although there were very few customers at the time. In Salt Lake City in the 1950s, the situation was similar, yet my Black friends and I were not refused service.
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See op. cit., Miller-el v. Janie Cockrell, 9.
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Ibid., 8.
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Armstrong, Ken and Maurice Possley, “Part 1: Tipping the scales,” one article of the series “Trial and Error,” Chicago Tribune<D>, January 10, 1999. The paper did a series exposing problems in the criminal justice system of Illinois and Cook County: “Trial and Error,” “The Failure of the Death Penalty in Illinois,” “The Roscetti Case” (where three youth, one only 16, were wrongly convicted and given life sentences on the testimony of a fourth “participant”), “Executions in America,” “Cops and Confessions,” “The Trials of Dick Cunningham” (a stellar attorney and advocate for inmates on death row, who met an untimely death), “The Road to Clemency,” “Cook County Jail Beatings,” and a series of editorials by Cornelia Grumman for which she won the Pulitzer in 2003.
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I heard Kunkle make these remarks several years ago when he appeared on a panel, Gretchen Helfrich, moderator, at the Public Radio station WBEZ in Chicago. Ray Krone, who spent two years on death row and ten in prison, made the same point in a talk at the Amnesty International General Meeting in Pittsburgh, PA on April 5, 2003.
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Dennis Williams, 46, died, March 20, 2003. He was a friend of mine. When asked how he had withstood the years on death row he would say, “You have to understand the power of innocence.” I personally know that he was very stubborn. He was the first person I ever talked to on the phone from death row.
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For the “bible” on the Ford Heights Four case, see Protess, David and Rob Warden, A Promise of Justice, Hyperion, New York, 1998.
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ATC 105, July-August 2003