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Racial Disparities, Cowboy D.A.s, Prosecutorial Impunity, Hanging Judges, and Above All­—Texas;  the Death Penalty’s Time is Up

by Barbara Koeppel

Sep 3, 2021 | Legal Affairs, Politics

Illustration by Edel Rodriguez.

Some 4,000-year-old dogmas, like the Bible’s “eye for an eye,” never die. State-sponsored killings have morphed over millennia (from stonings, beheadings, burning at stakes, firing squads, gas chambers, lynchings, and electric chairs to lethal injections) but continue apace.

In the United States, the federal government and the 27 states that still impose the death penalty favor lethal injections—although a federal judge said they’re “akin to water-boarding.” According to Richard Dieter, a lawyer and co-founder of the Death Penalty Information Center, or DPIC, “executions by lethal injections appear to be nice, clean and induce sleep.” Conversely, “firing squads are bloody events that attract hundreds of reporters, while lethal injections can attract five.”

However, the Feds and death penalty states have a serious supply problem. Because all 55 European countries (except Belarus) scrapped the death penalty as of 2012, the European Commission banned firms from exporting drugs across the Atlantic. And U.S.-based companies also shut off the tap to avoid bad press that could provoke protests and threaten sales. As Pfizer announced, “our products are to enhance and save lives . . . not for capital punishment.” 

Scrambling for a fix, the Feds have been creative. For example, in 2017, the Justice Department located compounding pharmacies in the United States that were willing to produce the drugs to execute 13 inmates from July 2020 to January 15, 2021. (Compounding is the process of combining, mixing, or altering ingredients to create a medication tailored to the needs of a customer or patient.)

States have been equally ingenious in their efforts to avoid detection. Arizona paid $1.5 million to buy pentobarbital (one of the drugs used) under the table. A Guardian article described how “a heavily redacted invoice shows the state ordered 4–8 unlabeled jars to be sent to an Arizona location ‘to be determined.’” Missouri bought drugs illegally from an Oklahoma pharmacy—and to leave no paper trail, a Missouri corrections official drove to Oklahoma at night and paid with dollars from a petty cash account. An Ohio Department of Mental Health pharmacist personally ordered the required drugs and drove them to the state prison. Nevada had drugs shipped to a location 200 miles from death row, and Arkansas ordered a drug through a private physician.

When these schemes failed, states found others. Arizona is renovating its 72-year-old gas chamber and bought ingredients to make hydrogen cyanide (the gas used in Nazi concentration camps). Utah revived its firing squads in 2015. And in South Carolina, where its outdated drug supply caused a 10-year execution hiatus, the Republican-controlled legislature passed a law this year to use firing squads and electric chairs (which have been known to start fires and burn those being executed). Still, honoring the principle of freedom of choice, legislators allow those to be executed to pick their method. 

Although 50 bills reached Governor Henry McMaster’s desk this past May 17, he signed the death penalty law first. “The loved ones of victims are owed closure and justice” he tweeted. 

However, not all loved ones agree with the Governor. Sharon Risher, whose mother and two cousins were among the nine people Dylann Roof killed at a Charleston church in 2015, says “killing Roof won’t ease my pain or bring my mother back. 

“Before the massacre, I believed in the death penalty. Afterwards, I did soul searching and wondered what my Christian faith says about killing. I also learned that Black and brown people are sentenced to death more often than whites. So I no longer believe it is right. Although I’m still grieving, I don’t think Roof should be executed.”

Former Ohio Governor Ted Strickland, who approved the executions of 17 people during his 2007 to 2011 term, also recanted. “I regret how I handled the death penalty. Now I think it should be abolished,” he told the Ohio Statehouse News.

Although Americans who support the death penalty claim it deters would-be murderers and keeps the public safe (recent polls show that 61 percent approve of it), the numbers are ambiguous: across the United States, there were 15,000 murders in 2000, 13,000 in 2010, and 20,000 in 2020. And a 2021 DPIC report found that while Southern states carried out 80 percent of executions over the past 30 years, they also had the highest murder rates. Conversely, the Northeast, which accounted for just 0.5 percent of the executions “consistently had the lowest murder rate.” 

For those who think it is fair and just, many wardens, reporters, lawyers, and clergy who’ve witnessed executions say they should think again. Also, Popes John Paul and Francis have insisted that the death penalty violates human dignity. And President Joe Biden says he opposes it because many innocent people have been executed.

Numbers confirm Biden’s concerns. Since 1973, 185 inmates on death rows in 29 states have been found to be “wrongfully convicted” and released—often after languishing in prison for decades. A DPIC report says 83 percent were victims of “official misconduct,” which means that police and prosecutors pressured witnesses to lie and make false accusations, commit perjury, or withhold evidence that would have proved the defendants’ innocence. The report also noted that since 1989, 20 prisoners who were executed have been “strongly suspected of being innocent” based on evidence that surfaced afterward. 

The United States is one of 54 countries that approve death penalties—sixth in line behind China, Iran, Saudi Arabia, Iraq, and Egypt for the number it executes. However, the scene isn’t static: 23 states and Washington D.C. have abolished the death penalty—with Virginia being the latest, banning it last March. 

But in death penalty states, little has changed. In 1972, the Supreme Court temporarily banned executions (in Furman v. Georgia), ruling they were “arbitrary and capricious.” It also ordered states to rewrite their laws to make the sentencing criteria more predictable. Four years later, the court decided that many states had complied, having passed new laws to correct the problem. It also ruled that the death penalty didn’t violate the Eighth Amendment—which bans cruel and unusual punishment. Not surprisingly, the states resumed executions almost immediately. 

However, Abe Bonowitz, founder of Death Penalty Action, insists that “death sentences are still totally arbitrary,” with the laws varying from state to state. Richard Dieter says, “Some states tinkered with their laws to make them less arbitrary, but taking human life is always cruel and unusual.” 

As to lethal injections, the Supreme Court ruled in 2015 that they did not constitute cruel or unusual abuse—although witnesses at executions claim prisoners often die protracted, painful deaths. Justice Samuel Alito saw it differently: writing for the 5–4 majority, he claimed, “The Constitution does not require the avoidance of all risk of pain.”

Dieter says the death sentence is often imposed due to factors that have nothing to do with a defendant’s crime. “Instead, they depend dramatically on the state and county in which you commit a crime, the victim’s race (whether you kill a White or Black person), and if you can afford a good lawyer.”

Geography is indeed critical. A DPIC study found that fewer than 2 percent of all 3,142 U.S. counties carried out over half the country’s 1,533 executions from 1977 to 2021. Five Texas counties and one in Oklahoma topped the list (Texas executed 571 prisoners, alone). On the other end, Dieter notes that “85 percent of U.S. counties didn’t have a single execution in over 45 years.” 

Ngozi Ndulue, DPIC’s senior director of research, says your chance of getting a death sentence also depends heavily on the biases of state or county prosecutors and judges. “Some prosecutors are so proud of their death penalty records that they publicize them when running for reelection.” She cites “Cowboy” Bob Macy, an Oklahoma County district attorney who called himself “the nation’s leading death penalty prosecutor.” A Harvard Law School study confirmed his claim.

Dieter adds that “prosecutors systematically exclude Blacks from juries whenever possible—and not just in the South—to win the verdicts they want.” And all-white juries means a Black defendant is not tried by his peers. According to a DPIC report, a North Carolina study found that “qualified Black jurors were struck from juries at more than twice the rate of qualified White jurors.” Thus, by 2010, 20 percent of North Carolina’s death row prisoners “were sentenced to death by all-White juries.”

In 2019, the Supreme Court ruled that Doug Evans, Mississippi’s lead prosecutor in the state’s case against Curtis Flowers, violated the defendant’s rights by excluding Black jurors from the five previous trials (his lawyers repeatedly appealed the case). Justice Brett Kavanaugh wrote that “the numbers speak loudly,” showing a pattern of racial discrimination. Kavanaugh adds that “the State asked five Black prospective jurors who were struck a total of 145 questions. By contrast, it asked the 11 seated White jurors a total of 12 questions. . . . The difference in the State’s approaches to Black and White prospective jurors was stark.” 

Dieter says that although the Supreme Court ruled that excluding jurors because of their race is unconstitutional, “prosecutors still find other ways to exclude them—say, because someone in the family was convicted of a crime. Although this is gradually changing because more Black prosecutors have been elected in recent years, this doesn’t mean the practice has stopped.”

An Equal Justice Initiative report says jury discrimination persists “because those who perpetrate or tolerate racial bias—including trial and appellate courts, defense lawyers, lawmakers, and prosecutors—act with impunity. . . . Prosecutors who unlawfully strike Black people from juries don’t get fined, sanctioned, or held accountable.” 

Judges also wield immense power. Until 2017, they could override juries that called for life sentences and instead send defendants to death row. Alabama was the last state to ban these judicial overrides, but even today, 32 prisoners on that state’s death row and 20 percent of those nationwide were sent there by judicial overrides. 

Of all prejudicial factors in capital cases, race is the most egregious. In a landmark study of 2,000 murder cases in Georgia by David Baldus, a University of Iowa law professor, it was the victims’ race—rather than that of the defendants—that most determined the sentence: those who kill white people are far more likely to get a death sentence than those who kill black people. 

Ngozi Ndulue says most murder cases don’t get the death penalty. Some defendants get fixed terms or life in prison, and some cases are even thrown out. But for those who get the death penalty, biases are glaring. “For those charged with capital crimes, Blacks were nearly 16 times more likely to get a death sentence than whites.”

Historically, the murder of white and Black victims in the United States has always been judged differently: from 1865 to 1950, white mobs lynched 6,500 Black men, women, and children, bombed churches and burned Black neighborhoods, but not one white perpetrator was ever charged. The sole exception involved three men who were part of a white mob that killed 150 Black people in Colfax, L.A. They were initially convicted, but the Supreme Court overturned their sentences in 1874. 

Examples are not limited to the distant past. Virginia executed 58 Black men for committing rape from 1908 to 1963; but although 1,000 whites were convicted of rape, not one was ever executed. And since 1976, Florida has executed 18 Black men who were convicted for killing whites but didn’t execute a single white man for killing a Black person until 2017—the first time in 41 years. Further, a DPIC report found that since 1977, 295 Black defendants were executed for killing a white victim, but only 21 white defendants were executed for the killing of a Black victim.

Race also colors exonerations—where those with death sentences are found to be innocent and all charges are dropped. Robert Dunham, DPIC’s executive director, says, “Most who are wrongfully convicted and sent to death row don’t get there by mistake. The data from these 185 show that far more frequently, and particularly with people of color, innocent death row prisoners were convicted because of a combination of police or prosecutorial misconduct and perjury or other false testimony.” 

Who gets clemency is also interesting. In general, very few ever have their death sentences reduced to say, life in prison; but the possibility of a double standard cannot be discounted. A Texas jury sentenced 23-year-old Bart Whitaker, a white man, to death for hiring hit men to kill his parents and brother. His father survived, forgave his son, and beseeched officials to reduce his sentence to life in prison. Honoring his plea, the Texas Parole Board and Governor Greg Abbott offered clemency just hours before Bart was scheduled to die (in 2018). Abbott explained that “Mr. Whitaker’s father passionately opposes the execution of his son . . . and insists he would be victimized again if the state put to death his last remaining family member.” At that time, not one of the Texas 240-member Parole Board, appointed by the governor, was Black.

Quinton Jones’s family was not so fortunate. A Black man, Jones got a death sentence for killing his aunt in 1999, when he was 20 years old. Like Bart Whitaker’s father, Quinton’s family pleaded for clemency. Abbott refused, and Jones was executed this past May. 

The Supreme Court has banned the death penalty for those who are mentally disabled, but it allows the states to set their own criteria: for example, Georgia says it has to be “beyond a reasonable doubt,” which, critics argue, is tough to prove.

Dieter says that while systemic racism in America affects schools, housing, health care, education, jobs, life expectancy, opportunity, and income—problems with no solutions yet in sight—“we can end racial bias as it affects the death penalty by abolishing it.” He adds that the Supreme Court needs to strike it down, but this won’t happen with the current court, which has a law and order mentality. “You did a certain crime, and you pay with your life.”  

Barbara Koeppel is a Washington, D.C.-based investigative reporter who covers social, economic, political, and foreign policy issues.

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