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Throughout US history, the Federal Government has played the predominant role in the elimination of institutionalized racism. Historic measures such as the Emancipation Proclamation which abolished slavery, the passage of the Fourteenth Amendment to guarantee equality before the law and civil rights legislation outlawing discrimination were all initiated by the federal authorities. It is all the more shameful, therefore, that the US government has failed to address racial prejudice in the administration of the death penalty.
For many years, Amnesty International has presented its findings on the racial use of the death penalty to both federal and state authorities, with no satisfactory response from either level of government. In July 1996 prior to the 1996 Atlanta Olympic games, Amnesty International published a report which provided overwhelming evidence of discrimination in the application of the death penalty in Georgia. A copy of the report was sent to the Clinton administration, which totally ignored the entire report. The Federal Government has consistently declined to intervene in death penalty issues at the state level, on the grounds that its local application is solely the concern of the individual states.
In a reply to Amnesty International, the office of the US Attorney General stated:
"The Administration and this Department support the death penalty in appropriate cases. By the same token, we are unalterably opposed to its application in an unfair manner, particularly if that unfairness is grounded in racial or other discrimination".
Amnesty International sent a detailed reply to the Attorney General, asking what further evidence would be required to demonstrate the racially discriminatory nature of the death penalty in practice, what actions the Federal authorities were taking to ensure that the death penalty was not used in an unfair manner, and what form their "opposition" to the unfair use of the death penalty would take. The organization enclosed further evidence supporting its concerns. No reply was received from the US Government.
Nonetheless, such was President Clinton's concern around race relations that he announced the establishment of a Presidential Advisory Board on Race in 1997. The function of the Board was to examine aspects of race relations in the USA and to report back to him. However, the Board's mandate did not extend to assessing whether African Americans were being killed by a judicial system that treated them unfairly because of their skin colour. In an interview with Time magazine, the President was asked if the Board would examine race and the use of the death penalty. He replied:
"[that] would not be a fruitful line of inquiry. The [US] Supreme Court has made a decision there [and] overwhelming majorities of all racial groups favor capital punishment."
The Advisory Board's report made just one reference to the racial disparities in the imposition of the death penalty. None of the eight recommendations in the chapter on the criminal justice system addressed capital punishment. While the report attempted to address inequities in prison sentences for drug offences, it ignored the even greater unfairness of discriminatory death sentences.
The federal authorities have consistently disregarded evidence of ethnic prejudice in death penalty procedures, even when the findings were produced by their own agencies. In 1990, the General Accounting Office (an independent agency of the US government) issued a report on death penalty sentencing patterns. After reviewing and evaluating 28 major studies, the report concluded that 82 per cent of the surveys found a correlation between the race of the victim and the likelihood of a death sentence. The finding was "remarkably consistent across data sets, states, data collection methods and analytic techniques. . .[T]he race of victim effect was found at all stages of the criminal justice system process . ." No action was taken to address these findings.
Federal agencies may themselves be guilty of using race as a criteria for the seeking of a death sentence for crimes prosecuted under federal law. Of the 20 prisoners under a federal sentence of death on 1 October 1998, 15 came from ethnic minorities. Of the eight prisoners under a military sentence of death, only one is white.
A staff report issued in March 1994 by the Congressional Subcommittee on Civil and Constitutional Rights concluded: "Under our system, the federal government has long assumed the role of protecting against racially biased application of the law. But under the only active federal death penalty statute, the federal record of racial disparity has been even worse than that of the states..."
The report pointed out that three-quarters of those convicted of participating in a drug enterprise under provisions of the federal Anti-Drug Abuse Act have been white and 24 per cent have been black. However, of those chosen for death penalty prosecutions under this section, just the opposite is true: 78 per cent of the defendants have been black and only 11 per cent were white. At a 1993 hearing on this issue, this disparity prompted Texas Representative Craig Washington to tell the Deputy US Attorney General that "if some redneck county in Texas had come up with figures like that, you'd be down there wanting to know why."
According to recent statistics compiled by the Federal Death Penalty Resource Counsel Project (dated 1 September 1998), of the 133 federal death penalty prosecutions authorized by the Attorney General since 1988, 32 have been against whites and 101 against members of minority groups (17 Hispanic, 6 Asian/Indian and 78 black).
In total, 76 per cent of federal death penalty prosecutions have been against minority defendants. Federal officials deny that the figures indicate racial bias, arguing that their own internal procedures ensure that all racial references are removed from prosecutors' applications for the approval of capital charges. Far less certain is whether or not the prosecutors who submit those applications in the first place are also "colour blind".
Federal sentencing procedures recognize the possibility that racial bias can play a part in whether the defendant receives a death sentence. In all federal death penalty cases, jurors must sign a form at the end of their deliberations which states:
"By signing below, each juror certifies that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or the victims was not involved in reaching his or her individual decision, and that the individual juror would have made the same recommendation regarding the sentence for the crimes in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or the victims."
While Amnesty International welcomes this attempt to prevent racist decision-making, it does little to root out unconscious prejudice or stereotyping by jurors. Furthermore, since the declaration is signed after the jury has reached its decision, it is highly unlikely that individual jurors would admit to racial prejudice at such a late stage in the trial process.
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