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The death penalty is not mandatory for any crime in the USA, nor can it be applied except to a fairly narrow category of offences. This selective narrowing of its use has meant that death sentences are comparatively rare; for example, of the 12,007 adults convicted of murder in 1994, only 318 were sentenced to death.
In most US jurisdictions which retain the death penalty, the decision on whether to seek its imposition in any particular case rests with local District Attorneys, most of whom are elected officials. Under the US legal system, the authorities who exercise this "prosecutorial discretion" are not accountable for their decisions, except to the public when seeking re-election. With some notable exceptions, US prosecutors seek death sentences in only a small fraction of the eligible cases, for reasons that are highly variable.
This individualized and largely uncontrolled use of "prosecutorial discretion" results in wide geographic variations in the application of the death penalty. The likelihood of facing a death sentence for identical crimes fluctuates: adjacent communities with comparable crime rates may have dramatically different death sentencing rates, for no other reason than the attitude of the local prosecutor.
This unbridled discretionary power in the preliminary stages of a capital prosecution is an obvious source for racial discrimination. Amnesty International is not suggesting that all those who administer the death penalty are overtly racist; some prosecutors strive to make decisions on the laying of charges in a racially-neutral manner. However, given the overall absence of objective standards for filing charges, the idea that prosecutors can always isolate themselves from the racial divisions that effect US society is simply not credible. In some well-documented instances, the misuse of prosecutorial discretion has degenerated into open bigotry.
The death penalty is reserved almost solely for black defendants in some jurisdictions. A legal appeal filed in the case of Ronald Watkins demonstrated that prosecutors in Danville, Virginia, were selectively applying the death penalty on the basis of race. Since 1970, prosecutors had charged 126 people with murder: 93 blacks and 33 whites. Eighteen were charged with capital murder: 16 blacks and two whites. The death penalty was eventually sought in half of the cases involving black defendants; but not for either of the white defendants. All of the seven men sentenced to death in Danville were black.
The state of Maryland also appears to apply the death penalty along racial lines. Of the 17 men currently on death row, 11 are black. Until recently the racial disparity was even more marked (14 to four on 1 July 1998). There have been two non-consensual executions in the state; both prisoners were black.
In 1996, the governor of Maryland appointed a Task Force to examine racial disparity in the use of the death penalty. Although its findings were inconclusive, the Task Force found that "the high percentage of African-American prisoners under sentence of death and the low percentage of prisoners under sentence of death whose victims were African-Americans remains a cause for concern". To Amnesty International's knowledge, no further action has been taken by Maryland authorities to address this concern.
The administration of capital justice in the city of Philadelphia appears particularly suspect. Of the 124 prisoners from Philadelphia on death row as of October 1998, only 15 were white. A recent study found that, even after making allowances for case differences (such as the brutality of the crime or the previous criminal record of the defendant), blacks in Philadelphia were substantially more likely to receive death sentences than other defendants who committed similar murders. The study found that if being black was ranked as an "aggravating factor" in determining whether a death sentence was imposed, it would rank as the third-highest.
Michael Goggin, a former prosecutor for Cook County, Illinois, recently admitted that the District Attorney's office ran a contest to see which prosecutor could be the first to convict defendants whose weight totalled 4,000 pounds. Men and women upon conviction were marched into a room and weighed. Because most of the defendants were black, the competition was known by local officials as "Niggers by the Pound".
The District Attorney of Cook County, Illinois, was responsible for the prosecution of Dennis Williams and Verneal Jimerson, who were convicted and sentenced to death for a crime they did not commit. Upon their release in July 1996, Dennis Williams was asked why he thought he had been wrongly convicted. "The police just picked up the first four young black men they could and that was it. They didn't care if we were guilty or innocent," he replied. Overt racism appears to have contributed to wrongful convictions in the cases of many of the 77 men and women released from death row since 1973 on grounds of innocence.
In Houston County, Alabama, Mike Ashley, black, was sentenced to death in 1992 for the murder of his ex-girlfriend's new lover. The prosecution contended that Ashley entered the house through a window, thereby committing burglary, the aggravating factor in the murder that would qualify the defendant for the death penalty.
A year before the murder for which Mike Ashley was sentenced to death, a white man had been convicted of murdering his estranged wife's lover in similar circumstances. Two years later, a white woman was convicted of murdering her husband for monetary gain, also a capital offence. Of the three cases, Ashley's was the only one in which the Houston District Attorney sought the death penalty. It appears that the only overriding difference in the cases was the race of the defendant.
In 1994, Ashley's conviction was overturned by an appeal court, partly on the basis that potential black jurors were excluded on racial grounds (see below). At the time of writing, Mike Ashley was awaiting a retrial; again, the prosecution is seeking a death sentence.
During the tenure of the current DA of Houston County, the death penalty has been sought against 22 defendants, 19 of them black.
A study conducted in connection with the case of juvenile offender Shareef Cousin examined the use of the death penalty in Orleans Parish, Louisiana, between 1990 and 1995. Based on data from more than 400 homicide charges, the study found troubling disparities in charging and sentencing procedures. During that period, all those sentenced to death in Orleans Parish were black.
The Orleans Parish District Attorney sought the death penalty almost three times as often if the victim was white. Where black defendants were charged with the murder of a white person, 72.7 per cent of the cases (32 out of 44) resulted in a capital charge. By comparison, the death penalty was requested in only 21.4 per cent of the cases involving white defendants and victims. Murders where both the defendant and victim were black were similarly under represented: a death sentence was sought in 28.5 per cent of the cases (102 out of 365).
Racial disparities were also evident in non-death penalty cases. If the victim was black, only one time in 20 (5.5 per cent) did the District Attorney press for a first-degree murder conviction. But when the victim was white, that figure increased to 27 per cent (one case in four). It is inconceivable to Amnesty International that any number of legal variables could explain away a five-to-one disparity in the laying of charges along racial lines.
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