Professor Marshall

LESSON 5: The Death Penalty

The Death Penalty

Sociology and the Death Penalty

Generally, the study of crime and deviance falls under the broader discipline of sociology, with several broad areas of study:

Areas of Study

With a specialization in criminology, sociologists usually work in the areas of "Social Disorganization" or "Applied Sociology." Reasons for working in the criminal justice field are varied, and there are many different career paths that can result in very rewarding work:

Careers in Criminology

Each of these careers may, at some point, lead you to come in contact with people who are on death row. Certainly, public policy analysts have a strong interest in social attitudes and beliefs about the death penalty and may work during their careers to craft legislation that deals with the legitimacy of the death penalty in the United States.

Below, we take a brief look at how our ideas about the death penalty have changed over the past 100 years.

The Death Penalty

First, READ THIS chapter on the Death Penalty (excerpted from Criminal Justice Ethics Theory and Practice, 2 Ed., by Cyndi Banks), which will provide you with a basic framework with which to understand the sociological connection to the study of the death penalty.

In brief, in the United States the first known execution was in 1607; George Kendall was executed by firing squad for the offense of mutiny. The next execution did not happen until 15 years later, in 1622. The decedent was Daniel Frank, put to death for the crime of theft. Both of these executions occurred in Virginia. Today, despite controversies which surround it, the death penalty is a feature of our criminal justice system.

To understand the death penalty in contemporary America, we begin in 1930--this date is selected as it is the first time in our near history that we began to keep death penalty statistics on a regular basis.

1930-1967

In this near 40 year period, 3,859 persons were executed, over half of whom were Black. 32 women were executed. 60% of all executions during this time took place in the South, with Georgia having the highest number of executions (366). Most executions were for murder, while 12% were executed for rape (90% of those executed for rape were Black).

Death by Race, 1930-2008

Late 1960s

By the late 1960s an unofficial moratorium on the death penalty was imposed due to pressure from opposition forces. The last execution for several years occurred in 1967. The yearly average up to this point for executions had been 130.

In 1972, a Supreme Court Case, Furnam v. Georgia, struck down state and federal capital punishment laws which had given states broad discretion in the use and application of the death penalty. Calling the laws "arbitrary and capricious," the Court ruled that laws that had been regularly used constituted cruel and unusual punishment and further, were in violation of the Eighth Amendment of the US Constitution, including racial bias against Black defendants.

Because of this ruling, more than 600 death row inmates who had been sentenced between 1967 and 1972 had their sentences lifted. However, after this, the numbers began to quickly rise again as states began to revise their laws and legislation to satisfy the Supreme Court's objections against the arbitrary imposition of the death penalty. There were essentially two kinds of laws that were crafted by states in response to Furman v. Georgia:

  • Guided discretion legislation, was upheld by the Supreme Court. in three related cases (Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida). The Georgia, Texas, and Florida statutes validated by the Supreme Court afforded sentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or "bifurcated," trials, involving in the first stage the determination of a defendant's guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing decision rested with the jury, and in Florida with the judge.
  • Those laws which provided a mandatory death penalty for specific crimes, and allowing no judicial or jury discretion beyond the determination of guilt, were declared unconstitutional (Woodson v. North Carolina, and Roberts v. Louisiana). These rulings led directly to the invalidation of mandatory death penalty statutes in 21 states, and resulted in the modification of the sentences of hundreds of offenders from death to life imprisonment.

1977 - Executions Resume

The first execution under the new death penalty laws took place on January 17, 1977, when convicted murdered Gary Gilmore was executed by firing squad in Utah. Gilmore's was the first execution in the United States since 1967:

From the execution of Gilmore until 1981, there were only one or two executions per year; executions increased dramatically in 1984, with 21 in that year, and there have been at least 10 executions in the U.S. every year since. There were 74 executions in 1997. From 1977 to 1997, a total of 432 executions took place. Of the executed prisoners during this period, 266 were white, 161 were black, and five were of other races.

By the end of 1997, 38 states and the federal government had capital punishment law; 12 states (including Alaska) have no death penalty. (Bureau of Justice Statistics annual bulletins on capital punishment provide current information on U.S. jurisdictions which authorize the death penalty). By the end of 1996, 3,219 prisoners were under sentence of death, including 3,208 in 34 states and 11 under federal jurisdiction. All were convicted of murder.

Sociologists are particularly concerned about the connections between the death penalty and socio-economic variables such as race and class.

The Death Penalty, Race and Class

Watch Law Professor Dr. Bryan Stevenson speaking about the connections between incarceration rates and race and class:

Is the Death Penalty "Racist?"

As Professor Stevenson asserted in the prior excerpt, many scholars would agree that the death penalty, and our broader criminal justice system, are riddled with racial discrimination.

Watch an excerpt below, from "Black Death in Dixie." This documentary challenges viewers to look beyond mainstream media treatment of the death penalty and portrays capital punishment as a blunt instrument that disproportionately targets racial minorities and the poor. The film highlights several difficult issues, concepts, and social conditions—including statistics on the racial makeup of America's death row population; questionable convictions resulting from mistaken identification; the emotional and psychological toll on those wrongfully convicted; and the lingering effects of the Jim Crow era—or what many have called America's 20th-century apartheid system—in which lynching functioned as de facto capital punishment.

Racism can be overt or covert. We can point to obvious examples of racism in history such as lynching and slavery. Racism can also be more subtle, and more difficult to pinpoint. There are some academics who assert that the administration of the death penalty—that is to say the way that death penalty sentences are used—shows that there is racial bias in the criminal justice system.

It is true that more Whites have been convicted than Blacks however this is a misleading statement. Yes, more Whites by number have been executed, but they also make up 5 times more of our population than Blacks. What we need to find out is if the numbers of Whites and Blacks executed are proportionate to the population of the US. Within the TOTAL prison population of the US, we have the following (note that this is NOT only those on death row--it is the entire prison population for Blacks, Latinos and Whites, regardless of the crime for which they have been incarcerated):

Death by Race

As you can see, non-Hispanic Whites make up about 66% of the overall population of the US, yet Blacks and Latinos make up almost that same percentage of our prison population. What does this say about our society? Some may superficially dissect this statistic and say that it simply points to some groups being more "criminal" than others. But, sociology teaches us to look at issues from all perspectives, and if we do so, we must factor into the discussion the other issues that may be contributing to this statistic. Crime does not occur in a vacuum (for that matter, no behavior does). Crime is intimately connected to the structure of society. Many sociologists/criminologists have recognized this connection and have come up with theories to describe the "drivers" of criminal behavior which are at the MACRO level:

What does the racial/ethnic composition of death row look like? Is it proportionate to the population of the United States?

Prison Population by Ethnic Percentage

As we can ascertain from the information above, there are a disproportionate number of racial and ethnic minorities represented both in our general prison population AND on death row, in particular for the African American/Black segment of our population.

This information in and of itself does not indicate racism. However disproportions of this magnitude should cause us to further investigate. Why is there such a disparity between the general population of the US, the prison population of the US and the population of death row inmates? Part of the answer lies in the race of the victim compared to the race of the perpetrator. Part of the answer lies in the fact that Blacks commit murder at a higher percentage of their population than do Whites (which is influenced by a long list of socio-economic factors which are oftentimes a part of the structure of our society). But that's still not the whole picture. In order to understand this information completely, we have to dig deeper. There is bias at every step of the criminal justice process, and it has been documented that Blacks and Whites have been treated differently by the system up to and including the point of execution.


The American Civil Liberties Union (ACLU) reports:

The color of a defendant and victim's skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43% of total executions since 1976 and 55% of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty. The jurisdictions with the highest percentages of minorities on its death row:

U.S. Military (86%)

Colorado (80%)

U.S. Government (77%)

Louisiana (72%)

Pennsylvania (70%)

While white victims account for approximately one-half of all murder victims, 80% of all Capital cases involve white victims. Furthermore, as of October 2002, 12 people have been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims.

For many years reports from around the country have found that a pervasive racial prejudice in the application of the death penalty exists. Research from the University of Maryland, the University of North Carolina, the University of Iowa, the US General Accounting Office (GAO), US Department of Justice (DOJ), and the New Jersey Supreme Court found that defendants are more likely to be prosecuted and sentenced to death if they themselves are persons of color of if they have killed a white person.

Supreme Court Decisions on Race and the Death Penalty

Miller-El v. Cockrell: In the 2003 Supreme Court case Miller-El v. Cockrell, the Supreme Court ruled in his favor that Miller-El should have been given the opportunity to prove that his death sentence was the result of discriminatory jury practices. Such practices included the so called ""Texas shuffle"" to limit or eliminate African American jurors. Other practices included disparate questioning of potential jurors based on race, and a training memo instructing prosecutors on ways to skew juries based on race.

McClesky v. Kemp: In the 1987 Supreme Court case McClesky v. Kemp, counsel on behalf of death row prisoner Warren McClesky argued that death penalty sentences in Georgia were racially biased related to the race of the victim. The court ruled against McClesky who was executed by electrocution in 1991, ruling that racial disparities in the death penalty were not a violation of one's Constitutional right of "equal protection of the law."

Batson v. Kentucky: In this 1977 case the Supreme Court ruled that prosecutors may not use race as a factor in eliminating potential jurors from the jury pool. Likewise, a former Assistant District Attorney in Philadelphia, Pennsylvania, wrote explicit directions to his prosecutors on how to strike African-Americans from juries, without violating the Supreme Court's ruling.

Legislation

Prosecutors have unfettered discretion in deciding which cases become capital cases, seeking the death penalty in approximately 1 percent of all capital eligible cases. Notably among the 38 states that allow the death penalty, approximately 98% of the prosecutors are white.

In 1998, Kentucky became the first death penalty state to pass the Racial Justice Act, a law that prohibits the death penalty from being sought on the basis of race. Following this victory, Racial Justice Act legislation was introduced, but was not passed, in Florida, Georgia, Illinois, Nebraska, North Carolina, and South Carolina.

In the fall of 2000, The U.S. Department of Justice (DOJ) released the results of an initial survey of federal death penalty prosecutions. The report shows that the federal death penalty, like its application in the states, is used disproportionately against people of color. From 1995-2000, 80% of all the federal capital cases recommended by U.S. Attorneys to the Attorney General seeking the death penalty involved people of color. Even after review by the Attorney General, 72% of the cases approved for death penalty prosecution involved minority defendants.

The DOJ study also revealed the influence that the race of the victim has in determining potential capital cases. U.S. Attorneys recommended the death penalty in 36% of the cases with black defendants and non-black victims, but only recommended the death penalty in 20% of the cases with black defendants and black victims.

The DOJ study left many questions unanswered, prompting calls for a more thorough review. In June 2000, Attorney General John Ashcroft announced that the follow-up review of 950 cases had shown no evidence of racial bias. These results are unreliable because they were not based on the total number of cases that prosecutors could have submitted to former Attorney General Janet Reno for review, but only on those that were actually submitted. Following hearings chaired by Senator Russell Feingold (D-WI) on oversight of the federal death penalty in June 2001, Attorney General Ashcroft ordered the National Institute of Justice to undergo a study on the possibility of racial and geographic biases in the federal death penalty.

While in office, Ashcroft overturned local U.S. district attorneys' decisions not to seek the death penalty 28 times; of these 28 "overrides," "two involved suspects who are white; 23 involved suspects who are black, Latino or Native American; and three involved suspects whose race could not be determined.

Excerpted from: https://www.aclu.org/race-and-death-penalty


Watch Dr. Stevenson again, here speaking about the Death Penalty:

The case that Stevenson refers to is Furman v. Georgia. The case, which eventually wound its way to the Supreme Court, showed that the death penalty was "cruel and unusual" punishment based on the fact that it was shown that the penalty was racist in its administration. That is to say, it had not been applied equally to all representative populations, and it was being used in a disproportionate way against minorities (specifically African Americans). (There were actually four cases: two from GA, one from CA and one from TX, but the CA case was not combined because CA found the death penalty to be unconstitutional prior to hearing Furman v. Georgia and therefore the Court did not hear that case.)

What do we know about racism within our criminal justice system?

  • FACT: The US has seen a surge in arrests incarceration over the last 40 years. much of this activity can be attributed to the "War on Drugs." Both whites and blacks engage in drug offenses, possession and sales, at roughly the same rates (Human Rights Watch 2008). African Americans comprise 37% of the people arrested for drug offenses (Congressional testimony by Marc Mauer of The Sentencing Project, 2009).
  • FACT: The police stop Blacks and Latinos at much higher rates that that of Whites.
  • FACT: In the last 40 years, drug arrests have risen from 320,000 to close to 1.6 million according to the Bureau of Justice Statistics of the U.S. Department of Justice. African Americans are arrested for drug offenses at rates 2 to 11 times higher than the rate for whites (Human Rights Watch 2009).
  • FACT: Once arrested, blacks are more likely to remain in prison awaiting trial than whites.
  • FACT: Once arrested, 80% of the people in the criminal justice system get a public defender for their lawyer, and race plays a role here as well. The American Bar Association reviewed the US public defender system in 2004 and concluded "[a]ll too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring…The fundamental right to a lawyer that America assumes applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the US." While public defenders do their best within a heavily overburdened system, when mistakes occur, they will disproportionately fall on racial and ethnic minorities.
  • FACT: African Americans are frequently illegally excluded from criminal jury service (Equal Justice Initiative 2010).
  • FACT: Trials are rare. Only 3 to 5 percent of criminal cases go to trial – the rest are plea bargained. Most African Americans defendants never get a trial. Most plea bargains consist of promise of a longer sentence if a person exercises their constitutional right to trial. As a result, people caught up in the system, as the American Bar Association points out, plead guilty even when innocent. Why? Who wouldn't rather do three years for a crime they didn't commit than risk twenty-five years for a crime they didn't do?
  • FACT: In the federal system Black offenders receive sentences that are 10% longer than White offenders for the same crimes (US Sentencing Commission 2010). African Americans are 21% more likely to receive mandatory minimum sentences than white defendants and 20% more like to be sentenced to prison than white drug defendants (the Sentencing Project).
  • FACT: The longer the sentence, the more likely it is that non-white people will be the ones getting it (the Sentencing Project 2009).
  • FACT: African Americans are not only 37% of the people arrested for drugs but 56% of the people in state prisons for drug offenses (Marc Mauer May 2009 Congressional Testimony for The Sentencing Project).
  • FACT: The chance of a Black male born in 2001 of going to jail is 32% or 1 in three (US Bureau of Justice Statistics). Latino males have a 17% chance and White males have a 6% chance. Thus Black boys are five times and Latino boys nearly three times as likely as White boys to go to jail.
  • FACT: African American juvenile youth is 16% of the population but make up 28% of juvenile arrests, 37% of the youth in juvenile jails and 58% of the youth sent to adult prisons (Criminal Justice Primer, The Sentencing Project 2009).
  • FACT: The US leads the world in putting our own people into jail and prison. The US comprises five percent of the world's population but 25% of the world's prisoners, over 2.3 million people behind bars, dwarfing other nations. The US rate of incarceration is five to eight times higher than other highly developed countries and black males are the largest percentage of inmates (ABC News).

Stevenson's argument (as well as that of the Court and other respected authorities) is not that the penalty itself is racist in INTENT, but that it is racist as APPLIED. There are myriad cases in many states, as well as many respected research projects which support this statement (see FACTS above). Perhaps the most compelling statistic of this body of research is that if you (the criminal) are Black and your victim is White, you stand a much higher percentage of getting the death penalty than if you are Black and your victim is Black, or if you are White and your victim is Black or White. This statistic has been shown again and again.


Additional Reading

Many sociologists who specialize in the study of crime in society specialize in the study of various socio-economic variables and how they influence incarceration rates. of late, a growing number of sociologists and criminologists have been interested in the proliferation of our system of incarceration as we continue toward rapid privatization of our jails and prisons. Many scholars have noted the connection between privatization and increased budgetary considerations at the federal, state and local levels. While some private interests continue to make increased profits from the creation of jails and prisons, there continues to be a vested interest among these stakeholders in who gets arrested, rates of arrest, and increasing incarceration rates. While outside of the scope of this lesson, anyone who plans to work in the criminal justice system or study crime in our society should understand this emerging relationship and the problems that it may present to racial and ethnic minorities and other vulnerable populations with regard to crime, incarceration, and the death penalty.

If you are interested in reading more about the death penalty, Amnesty International has an excellent Fact File.