In a scathing critique of McCleskey v. Kemp (1987), the Los Angeles Times compared the plurality decision to the likes of Dred Scott (1857), Plessy (1896), and Korematsu (1894). “Pilate-like, the Rehnquist Supreme Court has washed its hands of any responsibility to reject the death penalty on racist grounds” (Bedau, 1987). Even when presented with a comprehensive study of racial discrimination in capital cases, the Court ruled 5-4 that it was irrelevant to the case at hand, and thus sentenced Warren McCleskey, an African American, to death. Justice Powell, who wrote the majority opinion, later told a biographer that he regretted his decision, saying that the death penalty should be abolished altogether (as cited in Pierce & Radelet, 2011). If State legislatures across the U.S. joined in the spirit of Powell’s words, the death penalty would no longer disproportionately send African Americans to death row. Short of abolition, legislatures enacted new statutes to reduce the effects of racial bias in the aftermath of Gregg v. Georgia (1976). Sadly, race still plays a significant role in sentencing rates, especially in rural areas of southern states faulted by a segregationist past. Louisiana, in particular, has one of the most alarming rates of blacks sentenced to death row. While this does not immediately indicate racism, it questions the legitimacy of a system largely crafted by racist white Southerners after Reconstruction. Hence, Louisiana’s enduring legacy of Jim Crow inequality has rendered post-Gregg reform inadequate in mitigating race as a factor in capital punishment cases.
The era of de jure equality ushered in by Reconstruction was only seen as a rallying cry for disillusioned white Southerners in the 1870s. After years of Republican “carpetbagger” rule of the State government, the removal of federal troops from Louisiana allowed for an angry white citizenry to exploit a political power vacuum. Sarma and Smith (2012) note this exchange of power by a marked contrast in Southern politics, most notably seen at the 1898 State Constitutional Convention. White delegates from around the state adopted a plan to disenfranchise “as many Negroes and as few whites as possible” (as cited in Sarma & Smith, 2012). The early roots of Jim Crow were thus planted by restricting access to the ballot box and subduing other forms of political participation, via legal discrimination. For example, leaders at the Convention crafted a criminal code for their new government that allowed for non-unanimous jury verdicts in non-capital cases. One contemporary account explains the rationale: “As a [black] juror…if a negro be on trial for any crime, he becomes at once his earnest champion, and a hung jury is the usual result” ( as cited in Sarma & Smith, 2012). Thus, in a situation where the 11 members of a jury are white, the remaining black juror could not block a guilty verdict, essentially making his role useless. Convicting innocent black defendants became easier since the jury was no longer one of his peers, but rather one of his trespassers. And whenever legalized racism was insufficient, whites resorted to overt intimidation in the form of lynching. Between 1889 and 1896, there were ninety-five lynchings reported in Louisiana, with blacks representing 85% of the victims (Sarma & Smith, 2012). Perhaps not surprisingly, four of the five places with the highest frequency of lynching in the U.S. were in Louisiana parishes (Robertson, 2015). Indeed, the noose became more than just a symbol of violence, fear, and suppression. With the nearly one-hundred-year reign of Jim Crow in the South, the noose became a perpetual reminder of cyclical inequality, violence, inferiority, and hopelessness for African Americans.
Today, the wounds inflicted on Southern life by racial tensions are far from healed. To be sure, Southerners largely abandoned public lynchings and “white only” signs with a gradual changing of social norms after the Civil Rights Act of 1964. Explicit racism in the South is a dying practice now reserved mostly for extremist groups like the Ku Klux Klan. However, the remnants of the past have been resurrected habitually in some parts of the state. The rural town of Jena in La Salle Parish, for instance, was mired by racial unrest in 2006, when six black male students attacked Justin Barker, a white student, in their high school courtyard. The altercation started after black students noticed three hanging nooses from an oak tree in front of the school. While school officials denied any claims of segregation, the boys, now known as the “Jena Six,” claimed that, in practice, white students were not open to allowing black students to sit under the oak tree during breaks (Coll, 2007). The events surrounding the schoolyard violence are murky at best since conflicting eyewitness accounts provided dubious evidence for a trial. Ultimately, the prosecution dropped all of the charges against the Jena Six. But one thing is undoubtedly known: for white Southerners, “small town justice in the Deep South” often means criminalizing blacks regardless of guilt (Coll, 2007). And whenever retributive justice involves capital punishment, prosecutors are eager to pursue it. In fact, “cowboy” style prosecutors (that is, prosecutors who seek capital cases with fervor) are quite ubiquitous throughout Louisiana’s justice system. Jefferson Parish prosecutors are especially notorious for their readiness to sentence people to death, “which has put more people on Louisiana’s death row in recent years than any other parish” (Gettleman, 2003). In 2003, three years before the Jena Six incident, two assistant district attorneys from Jefferson Parish “wore neckties depicting a hangman’s noose and grim reaper,” at the trial of a sixteen-year-old charged with first-degree murder (Gettleman, 2003). Another assistant district attorney in Jefferson Parish “displayed a toy electric chair in his office with five picture cutouts of each individual he had sent to death row. All were black” (Richey, 2007, p. 2). In any case, it would be hard to argue these displays of dark humor do not represent racist views of blacks deserving of death and whites being keepers of “law and order.”
At a minimum, it is clear that some Louisiana prosecutors are eager to seek the death penalty, especially when the defendant is African American. Unfortunately,
bloodthirsty prosecutors are not the only injustices that blacks face during trial. Blacks are consistently denied jury participation, even in areas where they are the majority. One study found that in Caddo Parish, where blacks represent half of the population, they constitute only 25% of the juries in capital cases (Sarma & Smith, 2012). A disparity that large creates an opportunity for an ambitious prosecutor to use racial appeals to lead an all-white jury towards a guilty verdict. Allen Snyder, who was on trial in Jefferson Parish for first-degree murder, faced a similar situation. All five prospective black jurors were dismissed by the assistant district attorney during preliminary hearings, resulting in an all-white jury (Richey, 2007, p. 2). More disturbingly, the prosecutor used implicit racial appeals before and during the trial when articulating comparisons between the Snyder case and the O.J. Simpson case. The defense attorney for Snyder later wrote that the prosecution “knew that by selecting an all-white jury there was a likelihood that his appeal to race would play on the resentments [lingering from the Simpson acquittal] of at least some members of the jury” (as cited in Richey, 2007, p. 2). While Snyder was clearly guilty, the prosecution’s tactics were unethical and unconstitutional. It is not possible to be guaranteed a fair trial (Sixth Amendment right) or equal protection under the law (Fourteenth Amendment) when the very system of justice deliberately creates an uneven playing field. The implications of such a system are not only unfair, but it increases the chance of wrongful conviction. Of the 155 death sentences ordered by Louisiana courts, 127 of them—82%— were later reversed (Editorial Board, 2016, p. 18). Most of the defendants were later exonerated due to a violation of the “defendant’s constitutional rights, such as prosecutorial misconduct, improper jury instructions and incompetent lawyering” (Editorial Board, 2016, p. 18).
The disparities in sentencing rates extend beyond Jefferson and Caddo Parishes. The trend generally holds statewide, both pre-Furman and post-Gregg. Between 1772 and 1961, of the 632 executions that took place in Louisiana, 77% of them (578) resulted in the execution of black defendants (race of the victim was not recorded according to the study) (Pierce & Radelet, 2011). Looking to the race of the victim reveals more disparities. Between 1983 and 2010, 85% of defendants executed were convicted of killing white victims (Pierce & Radelet, 2011). It would seem plausible to dismiss such statistics on the premise that blacks just commit murder at a higher rate than whites. Further, some would point to evidence that blacks murder whites at a higher rate than whites murder other whites. Pierce & Radelet’s study refutes those arguments. First, the study examined death sentences in East Baton Rouge Parish, which is the third largest parish in the state by population (behind Orleans and Jefferson Parishes). After cross-referencing similar cases involving white and black victims that have similar aggravating factors and controlling all other variables, “those who kill whites are still more than twice as likely to be sentenced to death as those who kill blacks” (Pierce & Radelet, 2011). Second, from 1991 to 2001, 82.8% of homicide victims were black, “but only 47.8% of those sentenced to death since 1990 were convicted of killing blacks” (Pierce & Radelet, 2011). These statistics show that blacks do not murder at a higher rate than whites. In addition, it also shows that the white-on-black crime dyad is not punished as often as the black-on-white or white-on-white dyads (Pierce & Radelet, 2011).
Reforms in the post-Gregg era, then, have not solved the problems of racial bias. The de facto death penalty moratorium ended when the U.S. Supreme Court approved of Georgia’s new sentencing schemes in the landmark case Gregg v. Georgia (1976). Significant changes in its criminal code included, among other things, a mandatory automatic appeals process for capital cases that ended in a conviction. Louisiana remodeled their law similarly, while also adding “Rule 28,” requiring that the “district attorney and the defendant shall file sentence review memoranda addressed to the propriety of the sentence” (Sarma, Bidish & Cohn, 2009). These Sentence Review Memoranda (SRM) lists all past capital cases within the district that the case at hand was tried in. The Louisiana Supreme Court then conducts a proportionality review, using the SRMs to examine inconsistencies or arbitrariness with the lower court’s decision. However, Sarma et al., (2009) has noted that this process is “woefully deficient.” Districts that have either never carried out a death sentence or have tried very few do not serve well in a proportionality review. Lafayette Parish, for example, has only tried one death penalty case since 1950. The SRM in Lafayette’s most recent capital case, State v. Prejean (2008), could only compare elements of arbitrariness with a case that was nearly sixty years old—not to mention it was also pre-Gregg (Sarma et al., 2009). Another problem with Louisiana’s proportionality review is its focus on cases that ended with the defendant sentenced to death. Cases that show similarity in the type of crime committed or the number of aggravations present are not considered if they only resulted in life imprisonment. Chief Justice Krivosha is most critical of Louisiana’s review system by using the analogy of public transportation; it is erroneous to conclude that “since everyone in the back of the bus looks alike, there is no discrimination” because it is also necessary “to look at who is riding in the front of the bus as well in order to determine whether persons in the back are being discriminated against” (as cited in Sarma et al., 2009). SRM’s are thus ineffective because they do not include cases with similar criminal elements or cases that did not result in the death penalty. Moreover, defendants from districts with limited history of the death penalty are more likely not to receive a fair appeals challenge.
Conventional wisdom and scholarly opinions have advocated that the death penalty reduces murder rates in certain instances. The fairness of the death penalty, on the other hand, is an entirely different issue. Some states may not have issues with discrimination in their justice systems; indeed, some of the post-Gregg reforms may have been effective at reducing racial bias. But if the death penalty cannot be applied equally across all fifty states, then it is hard to argue for anything less than its complete abandonment. Not only would retention create issues of arbitrariness based on geography, but it would violate the fundamentals of a justice system based on equal protection under the law. In the case of Louisiana, not only is it evident that there exists racial bias, but it is also the case that the archaic system was purposefully crafted to target blacks more than whites. Such a system is immoral, unjust, and flat out racist. Only when Louisiana lawmakers realize the racist history of the death penalty can there be a movement towards abolition.
- Bedau, A.H. “Someday Mccleskey will be Death Penality’s Dred Scott.” Los Angeles Times, 1 May 1987, http://articles.latimes.com/1987-05-01/local/me-1592_1_death-penalty.
- Coll, S. “Disparities.” The New Yorker, 8 Oct. 2007, http://www.newyorker.com/magazine/2007/10/08/disparities.
- Editorial Board. “Louisiana’s Color Coded Death Penalty.” The New York Times, 9 May 2016. https://www.nytimes.com/2016/05/09/opinion/louisianas-color-coded-death-penalty.html?_r=0.
- Gettleman, J. “Prosecutor’s Morbid Neckties Stir Criticism.” The New York Times, 5 Jan. 2003, http://www.nytimes.com/2003/01/05/us/prosecutors-morbid-neckties-stir-criticism.html.
- Pierce, L. G., & Radelet, L. M. “Death Sentencing in East Baton Rouge Parish.” 2011, 1990-2008. Louisiana Law Review.
- Richey, W. “How Hard Can Judges Crack Down on Bias?” Christian Science Monitor, pp. 2.
- Robertson, C. “History of Lynching in the South Documents Nearly 4,000 Names.” The New York Times, 10 Feb 2015. http://www.nytimes.com/2015/02/10/us/history-of-lynchings-in-the-south-documents-nearly-4000-names.html.
- Sarma, J. B. & Smith, J. R. “How and Why Race Continues to Influence The Administration of Criminal Justice in Louisiana. 2012, Louisiana Law Review.
– – – & Cohen, B. G. (2009). “Struck by Lightning: Walker v. Georgia and Louisiana’s Proportionality Review of Death Sentences. Southern Louisiana Law Review.