United States of America

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Federal death row prisoners are held in the United States Penitentiary in Terre Haute, Indiana. [361] Military death row prisoners are held in the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas. [362] Death row prisoners are also held in states that have not abolished the death penalty. [363] Two individuals are still under sentence of death in New Mexico, as that state’s abolition law did not operate retroactively. [364] Despite official legislation to repeal the death penalty in 2012, Connecticut still holds eleven inmates under sentence of death since the law did not apply retroactively to commute the punishments of those previously sentenced. [365] Maryland also abolished the death penalty in 2013, leaving five prisoners on its death row. [366]

The largest state death rows are in California, Florida and Texas. [367] Of the 43 executions that occurred in 2012, 15 (the most out of the other 9 states that executed prisoners) were carried out in Texas. [368] Of the 39 executions that took place in 2013, 16 were carried out in Texas, again the most of any state. [369] One can locate the death row of most states by finding the state’s government websites.

Description of Prison Conditions

A 2008 comparison of basic conditions is available from the Death Penalty Information Center. [370] A review of this comparison illustrates that in some states, prisoners are allowed group recreation; in most states inmates have televisions (although a review of government produced fact-sheets, like the one for Florida, reveals that in reality inmates may only have access to closed circuit church service programming and possibly broadcast television). In most states the isolation regime is extreme, only a few states permit education or vocational training; contact with family or an attorney is sometimes limited. Cell doors are often cage-door rather than solid-door. Some states make available virtual tours and fact sheets about death row. [371]

In some states (such as Texas, where prisons have been deemed “the harshest death row conditions in the country” by one media report), the regime of isolation is complete and inmates are confined to their cells alone for 22 to 24 hours a day. [372] Inmates are denied television, access to family or attorneys, group activities, and educational or vocational training. Inmates, including those who eventually are exonerated, may be subjected to these inhuman and debilitating conditions for a decade or more. Many exonerated death row prisoners experience complications physically and emotionally following their release due to the living conditions inside prison. [373]

The conditions on two state death rows are worth discussing in more detail—Texas and California, which have two of the largest number of prisoners under sentence of death. [374]

In Texas, death row inmates are held in solitary confinement in every aspect of their lives—“[t]hey eat alone, exercise alone and worship alone. Communication between prisoners on death row– accomplished by yelling between cells – is extremely difficult.” Physical contact is not permitted. Even in the final hours before execution, a prisoner is permitted no physical contact with family members or loved ones. Prisoners spend 22 hours a day in their cells, and are allowed two hours of exercise in small indoor or outdoor cages. Prisoners are not permitted educational or occupational training. These conditions have been determined to have a serious negative effect on mental health. “Mental health experts have repeatedly observed that prolonged confinement without sensory stimulation or human contact exacerbates pre-existing psychological disorders and can precipitate mental illness in otherwise healthy individuals.” One death row inmate in Texas suffered from schizophrenia and, by the time he was executed, his condition had deteriorated to the point that he was psychotic and eating his own feces. [375]

In California, San Quentin (where the nearly 700 men on death row were housed as of March 2010) has been described as “so old, antiquated, dirty, poorly staffed, poorly maintained, with inadequate medical space and equipment and over-crowded that . . . it is dangerous to house people there with certain medical conditions..” Another report describes conditions as “filthy” and “unsanitary,” and “[s]everal inmates were symptomatically psychotic on sight; inmates complained of harassment by other inmates and staff and being compelled to make choices between going to health and mental health appointments, visits or yard.” Death row prisoners with major mental illnesses were denied therapeutic counseling. Most prisoners are confined for 19 hours a day in single cells, and some prisoners are held 24 hours a day in cells with only a food port to the outside world. “These high security prisoners are not allowed contact visits with anyone, including attorneys, and are not permitted to use the phones.” On average, inmates spend more than 17 years under these conditions. [376]

A report issued by the International Federation for Human Rights (FIDH) and the Center for Constitutional Rights exposed the poor death row conditions in California and Louisiana. Some housing units in San Quentin State Prison in California were reportedly very noisy as only tiered walkways separated over 250 cells stacked along each wall. For about 90 percent of the death row population, no communal space besides the recreation yard was accessible. Death row inmates who were held in solitary confinement were only entitled to nine hours per week outside of their cells, despite the operating procedures that allow for four hours per day, three days per week of yard time. Yard time is often shortened or delayed, and not offered to some inmates for weeks or months. At San Quentin, prisoners classified as Grade B are subject to especially restrictive conditions. They cannot make or receive phone calls, including phone calls to their attorneys. Grade A prisoners are entitled to two 15-minute calls per week, but the lines are monitored and a one-minute phone call costs $2.50. Minimal communication with family members is permitted for Grade B prisoners. Visitation takes place via telephone in a plexi-glass booth and lasts for one hour. When an inmate first arrives on death row, he is placed in solitary confinement that may last from a few weeks to six months. Those held in solitary confinement cannot participate in communal meals or interact with each other outside of yard time. Officers can arbitrarily and indefinitely place a prisoner in solitary confinement for “serious rule violation[s].” The lack of social interaction and fear of execution often cause mental health issues or worsen existing mental health issues. However, mental health treatment at San Quentin is inadequate. Prisoners are even discouraged from seeking medical and psychiatric help due to a strip search that is required for each visit. They complained that guards are present during medical visits, deterring them from speaking openly to the medical staff. [377]

FIDH and CCR investigated the Louisiana State Penitentiary, in which all male death row inmates in Louisiana are held. The prison, also known as “Angola,” keeps prisoners in their cells alone for at least 23 hours per day. Mentally ill prisoners are clustered together in a tier, where prisoners are often disruptive and throw feces. The outdoor area, where inmates spend one hour of out-of-cell time each day, does not offer any recreational activities or equipment. Some prisoners choose to stay in their cells all day due to their mental state, and at least one prisoner has reportedly chosen not to exit for years. The Louisiana Attorney General argued that prisoners were kept inside for 23 hours a day as a “protective restriction” and were provided with televisions, radios, and reading and writing materials. Yet the Istanbul Statement on the Use and Effects of Solitary Confinement categorized death conditions at Angola as “solitary confinement,” as “the available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic.” At Angola, the heat index was found to have reached over 11 degrees Fahrenheit in August. An exoneree testified that some prisoners had to “throw water from the toilet onto the floor to cool off” and then “sleep on the floor to stay cool.” Furthermore, death row inmates at Angola are deprived of any rehabilitative benefits like work programs or training. A new policy prevents prisoners from creating art, including “stick figure[s],” even within their cells. Death row inmates at Angola are also allowed minimal contact with family and attorneys. Calls are expensive and visitations get cancelled with short notice. Meetings with attorneys take place through a glass pane and a phone. The report further indicated that many doctors in Louisiana’s prisons have records of infractions or criminal convictions. The hospital at Angola is unhygienic, and death row prisoners are required to be kept isolated while seeking medical care. There is no mental health hospital for mentally incompetent death row inmates. Even prisoners who did not have any mental illnesses at the time of their death sentence often develop mental health issues as a result of poor death row conditions. [378]

Research by the newspaper The Advocate found that many southern states do not provide adequate air conditioning for those on death row. A suit was filed on behalf of three death row inmates held at the Louisiana State Penitentiary at Angola for triple-digit heat indexes in 2011 and 2012. Even though Angola Warden Burl Cain claimed that the inmates had manipulated the thermometers, an independent, court-ordered review revealed that heat indexes were as high as 110 degrees in July and August 2013. The 5th U.S. Circuit Court of Appeals ruled on July 30, 2012 that this could violate the Eighth Amendment of the U.S. Constitution – which prohibits cruel and unusual punishment. Death row inmates in Texas and Mississippi also allegedly experienced extreme temperatures. Texas’s death row facilities had no limitation on the heat index to which inmates could be subjected or a temperature log. The relatives of three deceased inmates filed a suit in July 2013, claiming that the deaths were heat-related. In Mississippi, death row inmates cannot be held where a heat index is higher than 85 degrees. However, there are no temperature logs to record the heat index and fans are used to keep the index down. The Advocate reported that death row prisons in Alabama and Florida also lacked air conditioning. [379]

In December 2013, a federal judge ruled that the high heat levels on death row at Angola amounted to cruel and unusual punishment, violating the Eighth Amendment. He ordered the defendants (Department of Public Safety and Corrections and its head James Le Blanc, Angola Warden Burl Cain and Assistant Warden Angelia Norwood) to draft an action plan to “reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees.” He also ordered them to monitor and report heat levels every two hours, and to give 24-hour access to cold water and cool showers to inmates who are especially at risk. [380]

In 2008, an ACLU investigation revealed “grossly inadequate” condition on federal death row in Terre Haute, Indiana. The organization found that the then 50 prisoners on death row were denied access to basic medical care, even in medical emergencies, and were subjected to incessant noise causing sleep deprivation and physical and psychological harm. [381]

Death row inmates will typically spend a decade awaiting execution, while others are held well over 20 years before being put to death. The “death row phenomenon,” where inmates experience prolonged isolation and uncertainty about an exact date when they will be executed, can lead many to thoughts of suicide, delusions and insanity. Because of the conditions that many death row inmates experience, some critics question whether lengthy waiting periods constitute an additional punishment atop the death penalty that convicted persons receive. Others have called lengthy terms on death row “as psychologically damaging as torture.” [382] The United States Supreme Court, however, has repeatedly rejected such arguments over the dissents of Justice Breyer and former Justice Stevens. [383]

Are there any known foreign nationals currently under sentence of death?

Yes. As of February 15, 2014, there were 141 foreign nationals held under sentence of death in the United States. [384]

What are the nationalities of the known foreign nationals on death row?

California, Florida and Texas incarcerate almost all of the foreign nationals held on death row, and nationals of Mexico make up the largest portion (59) of the 141 foreign nationals held in the U.S. as a whole. Other nationalities including Cubans (10), Jamaicans (4), El Salvadorians (8), Columbians (3), Hondurans (6), Bahamians (3), Cambodians (5), Vietnamese (8) and Iranians (2) together do not equal that number. Death row represents a total of 36 nationalities. [385]

A list is available online through the Death Penalty Information Center at http://www.deathpenaltyinfo.org/foreign-nationals-and-death-penalty-us#Reported-DROW. [386]

Are there any known women currently under sentence of death?

Yes, there are 59 women on death row. As of December 31, 2012, there were 61 women under sentence of death in the United States. [387] Since then, two women have been executed. [388]

From January 2008 to February 2014, 3 of 268 executed prisoners were women.

-Teresa Lewis, a white female, was executed on September 23, 2010 in Virginia. [389] She had persuaded two men to kill her husband and stepson in order to collect insurance money. [390]

-Kimberly McCarthy, a black female, was executed on June 26, 2013 in Texas. [391] She had stabbed a 70-year-old white female to death, after entering the victim’s residence with the intent of robbery. [392]

-Suzanne Basso, a white female, was executed on February 5, 2014 in Texas. [393] She and five other co-defendants kidnapped her mentally retarded 59-year-old boyfriend and beat him to death in order to collect proceeds and inherit other assets. [394]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

No. [395]

Comments regarding the racial/ethnic composition on death row

For the past several decades, racial bias in capital sentencing in the U.S. has been a serious concern. In fact, statistics showing that black defendants accused of killing white victims have a much greater probability of being convicted and sentenced to death were the subject of a challenge to the death penalty in McCleskey v. Kemp (1987). [396] The Court declined to conclude that evidence of sentencing bias is evidence of intentional discrimination in the application of the death penalty. The Court expressed concern that any other decision could have a serious impact on the U.S. criminal justice system, prompting the dissent to chide the majority for rendering an unprincipled decision based on a “fear of too much justice.” [397]

Subsequently, states and private individuals have studied this topic, coming to similar conclusions. For instance, a commission in Maryland (1993) concluded that there was no evidence of intentional discrimination, but “racial disparities in [the implementation of the death penalty] remain a matter of legitimate concern.” A later study (2010) commented extensively on racial and geographic bias in capital prosecutions in Maryland, observing in particular that capital charges were more likely to “stick” (continue to be pursued) against black defendants. [398] Maryland abolished the death penalty in 2013. [399]

The Death Penalty Information Center makes available a number of studies on the topic of racial bias in sentencing; predominantly, racial bias is shown by the fact that the death penalty and executions are disproportionately pronounced and carried out on those who have killed white victims. [400] As of February 13, 2014, there were 1,767 non-white (1,300 of whom were black) as opposed to 1,341 white convicts on death row. [401] Executions have also been grossly out of proportion to representation in the population. [402] In Texas, while African-Americans make up 12% of the state’s overall population, they make up almost 40.7% of the state’s death row inmate population. [403] Hispanic people make up 28.7% of the death row inmate population, and white people comprise 29.1%. [404]

North Carolina passed the Racial Justice Act in 2009, allowing statistical evidence to prove racial disparity in sentencing. [405] The April 2012 ruling in North Carolina v. Marcus Robinson was the first under the Racial Justice Act. [406] In its judgment, the court found “that Robinson has established that race was a significant factor in decisions of prosecutors to exercise peremptory strikes...from 1990 to 2010.” His death sentence was vacated and replaced with life imprisonment without parole. [407] However, Governor Pat McCrory repealed the Racial Justice Act in 2013, on the grounds that it only created a judicial loophole for those on death row. [408]

It is unclear how the increasingly widespread recognition that bias in sentencing does occur will affect the relevance of McCleskey v. Kemp.

According to ThinkProgress, race is a significant factor in determining the length of a sentence and the application of the death penalty. U.S. Sentencing Commission found that black men receive sentences that are 20 percent longer than white men who committed similar crimes. Another study revealed that the majority of executions for interracial murders since 1976 have involved a black defendant and a white victim. Although only six percent of murders in Alabama involve black defendants and white victims, 60 percent of black death row inmates had been convicted of killing a white person. In Colorado, where four percent of the population is black, every death row inmate was found to be black. In Louisiana, defendants whose victim was white were 97 percent more likely to receive a death sentence than defendants whose victim was black. [409]

As a final issue, foreigners (who often are minorities) may be at risk of unfairness in prosecution and sentencing for capital offenses. States such as Texas have not respected defendants’ consular rights under Article 36 of the Vienna Convention on Consular Relations, [410] undermining foreign defendants’ access to individuals and information that can assist them in preparing a defense or offering factors in mitigation during sentencing. This is a serious flaw, given that the Supreme Court has repeatedly held that individuals must be permitted to present a wide range of mitigating evidence during sentencing. In Avena and Other Mexican Nationals, the International Court of Justice held that the United States must provide judicial review and reconsideration to 51 Mexican nationals on death row whose consular rights had been violated. President George W. Bush ordered each state to adhere to the Avena decision, but Texas successfully argued before the U.S. Supreme Court in 2008 that the presidential order was not binding and that the Avena judgment was not self-executing in the absence of Congressional legislation. . [411] Congress has failed to enact legislation to implement the Avena judgment, allowing Texas to execute three of the 51 Mexican nationals referenced in Avena, including Edgar Arias Tamayo. Tamayo was executed without any judicial review of the violation of his consular rights. Tamayo’s case sparked controversy as his lawyers claimed that Tamayo was mentally ill and brain damaged, with an IQ of 67. The U.S. Secretary of State John Kerry also urged Texas to observe international law and provide the review required by the Avena judgment, but the execution was eventually carried out in January 2014. [412]

Are there lawyers available for indigent defendants facing capital trials?

Under Gideon v. Wainwright (1963), any indigent person accused of any criminal offense has a right to state-funded counsel. [413] The Supreme Court held that in the United States, access to an attorney is “fundamental and essential to fair trials” and is thus guaranteed under the Sixth and Fourteenth Amendments. [414] Previously, at least some states already provided legal aid for those accused of capital offenses. [415] By the turn of the century, state programs were woefully inadequate in providing aid to indigent individuals facing capital charges. For instance, “a Mississippi county was nearly bankrupted by the expense of providing services in a death penalty case and was compelled to file a lawsuit in 1999 in an effort to force the state to establish and fund a statewide public defender system.” [416] By 2007, the American Bar Association offered the assessment that “[m]any states are failing to provide a statewide indigent capital defense system, providing services instead on a county-by-county basis.” In many states, capital defense for indigents was significantly underfunded, compensation for attorneys was minimal, the defense lacked access to experts and mitigation specialists, and single attorneys were forced to defend cases without the assistance of additional counsel (whereas the prosecution has many resources). [417]

U.S. Senator Patrick Leahy observed that “[t]estimony in both the Senate and House Judiciary Committees revealed that of the 38 states that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases… Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.” [418] U.S. Senator Patrick Leahy observed that “[t]estimony in both the Senate and House Judiciary Committees revealed that of the 38 states that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases… Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.” [419]

Are there lawyers available for indigent prisoners on appeal?

Under Douglas v. California (1963), indigent prisoners have a right to representation upon appeal, [420] although this may be limited to the prisoner’s first appeal. It is also possible to obtain post-conviction (collateral) review. The U.S. Supreme Court has held that individuals do not have a constitutional right to counsel during state post-conviction proceedings. [421] and in 2007 the American Bar Association reported that some States were “failing to provide for the appointment of counsel in post-conviction proceedings” (which, in context, might only refer to whether appointment in such proceedings is funded by a state-wide program). [422] State statutes do provide for the appointment of counsel in such proceedings. [423] Counsel is also appointed under federal statute to represent prisoners in federal habeas corpus proceedings. [424]

On a related issue, the American Bar Association pointed out in 2007 that “all States are failing to provide for the appointment of counsel in clemency proceedings.” [425]

Comments on Quality of Legal Representation

Even experienced attorneys may not provide quality representation for indigent capital defendants. Representation involves more than simply knowing the law or proper procedures—much of representation involves an attorney’s skillful use of investigators and experts to prepare and present a defense. But attorneys are often denied these resources. Stephen Bright, who wrote a seminal article on the inadequacy of indigent defense in the U.S. (1994), reported that in Alabama an attorney was granted only $500 for expert and investigative expenses. The attorney estimated that $30,000-$40,000 was actually required. [426] Unable to hire the necessary personnel, the attorney found that he could not conduct the proper investigation himself. “You don’t find the U.S. Attorney pounding the pavement, trying to investigate facts…And it just creates a terrible situation when you have to do everything yourself.” [427] Legal representation for indigent capital defendants can become a sort of “triage,” as even competent counsel is forced to make concessions in representation that, in any civil case, would amount to malpractice. [428]

Public defenders (or contracted public defenders) were gravely overloaded. In one case, an attorney was berated by a judge and eventually demoted by her office for pointing out that she had an ethical obligation to limit her caseload since she already had 122 cases to handle, and had closed 476 cases over the past 10 months. [429] By 2007, the American Bar Association observed that reimbursement for investigators or experts was still inadequate or nonexistent, and that funding in general was inadequate. [430] And the situation for public defenders (as of 2004) had not changed greatly. Although there is increased willingness to at least temporarily provide additional resources, public defenders sometimes have to resort to extreme methods, such as filing motions to withdraw from all cases, in order to drive the point home that adequate resources are essential—and they do so under threat of retaliation. [431]

But often counsel is simply not competent. Bright’s article outlines numerous cases where counsel had performed abysmally or not at all, resulting in wrongful convictions or death sentences pronounced for killings that are typically viewed as not meriting a death sentence. Individuals have sometimes been exonerated after pro bono attorneys take on the challenge left by incompetent counsel. [432] However, courts will uphold convictions and death sentences despite the obvious fact that incompetent counsel failed to offer evidence that typically convinces juries that harsh penalties are not deserved. [433] Errors of counsel in preserving issues for appeal are a significant factor in executions. [434] Justice Thurgood Marshall observed that courts often refuse to consider constitutional violations because of this procedural default doctrine. [435] And Justice Ruth Bader Ginsberg has observed: “People who are well-represented at trial do not get the death penalty. I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial.” [436]

Elected state judges may not be properly motivated to meet the challenge of finding and appointing competent counsel. [437] In 2004, the American Bar Association found that elected judges were disposed to appoint individuals who supported their campaigns—and this consideration may sometimes have been as important as the attorney’s competence to handle a case. The American Bar Association recommends that at the very least an independent board should appoint counsel for indigent clients to assure that appointment is based on merit, but in the nation’s lead executor, Texas, independent boards are virtually nonexistent. [438] As Bright observed, judges are unwilling to appoint experienced, established attorneys who do not wish to devote time to an indigent case; judges do appoint inexperienced and incompetent counsel; and judges have refused to remove counsel even when counsel itself requests removal based on its inexperience and lack of competency in capital cases. And Bright writes: “The reality is that popularly elected judges, confronted by a local community that is outraged…have little incentive to protect the constitutional rights of the one accused…Many state judges are former prosecutors who won their seats on the bench by exploiting high-publicity death penalty cases.” [439]

The U.N. Human Rights Committee observed (2006) that the quality of legal aid available to indigent defendants had somewhat improved. [440]

Other Comments on Criminal Justice System

In 2006, the Human Rights Committee observed that the United States has not fully acknowledged the disproportionate use of the death penalty against ethnic minorities and low-income groups. [441] Biased application of the death penalty may be influenced by several related factors. [442]

An article published in the Yale Law Journal in 1994 discusses the disadvantages that indigent capital defendants face, largely due to a lack of any meaningful standards of representation and to incompetent, overworked or under-resourced counsel. [443] Poor minorities are doubly at risk, because their often incompetent counsel may utterly fail to challenge violations such as racially discriminatory jury selection. [444]

Despite Supreme Court jurisprudence (Batson v. Kentucky) requiring that prosecutors eliminate jurors only for non race-based reasons, [445] prosecutors are still able to use pretextual peremptory challenges to remove black jurors from jury panels, sometimes at three times the rate at which white jurors are removed, and the death penalty continues to be imposed on black defendants by all-white juries. [446] According to one recent report, higher courts have not assumed an adequate role in eliminating race-based jury selection. [447] Additionally, lawyers often excuse poor jurors rather than seek accommodations that would allow those jurors to serve, eliminating the perspective of poor individuals (including poor blacks) from the criminal justice system. [448] These problems may be exacerbated or driven by other factors, such as the near-absence of black or other minority participants in the prosecutor’s office. [449] And, defense counsel—the first and best line of defense against racially rigged juries—is somewhat lacking in diversity and often fails to contest the race-based elimination of jurors. [450]

“Research suggests that, compared to diverse juries, all-white juries tend to spend less time in deliberation, make more errors, and consider fewer perspectives.” In capital trials, it “it is not uncommon for all-white juries to decide on punishment…before they have heard any mitigation evidence.” [451] Diverse groups make fewer errors, are more open-minded, and are more willing to discuss controversial race-related topics. [452] Racism in jury selection can be understood as having lethal consequences: blacks are more likely to receive death sentences than are similarly situated non-black defendants, blacks are much more likely to be sentenced to death for the murder of white victims, [453] and executions of blacks for the murder of whites have been grossly out of proportion to representation in the population, even when considering only the population of those who have been convicted and sentenced to death. [454] Information about exonerations also suggests that minorities are more likely to be wrongfully convicted. [455]

The behavior of all-white juries might be understood in light of some facts about the criminal justice system and the social response to murder:

Even on the federal level, according to a 2008 report, 51 percent of death penalty cases were authorized against black defendants, and non-whites composed 59 percent of federal death row. [456] This pattern occurs amid reports that police forces engage in de facto profiling [457] and discriminatory enforcement. “[O]ne US Attorney noted, ‘local law enforcement makes decisions to put their cars in the black community and not the suburbs...if you are getting a disproportionate number of people of color, what can you do?’” [458] Tough laws [459] and their collateral consequences, affecting aid, [460] political rights [461] (such as voting), [462] and access to employment [463] often fall heavily on minorities, [464] further marginalizing them in a system where more than 10,000 people a year are, often due to incompetent or under-resourced counsel, wrongfully convicted or plead guilty to crimes they did not commit. [465]

One study concludes that a minority defendant, regardless of his individual past, may be unconsciously perceived by a jury to be criminal in nature, “death worthy,” based on whether he is “stereotypically black.” [466] And the story about a person’s “value” leads to harsher sentences for those who kill high-status victims, which often means white victims. [467]

The interaction of race and the death penalty is aptly illustrated by practices in Alabama, where the problem of discrimination in jury selection is particularly severe. [468] There, elected judges can override life sentences pronounced by juries, substituting death, without explaining why. This practice is most pronounced in election years, when some judges (inexplicably, since they are judges and not legislators or prosecutors) campaign on a “tough on crime” platform. Judges are permitted to reduce jury sentences, however, they seldom do. In 92% of override decisions, the judges chose to impose capital punishment instead of the jury’s choice of life imprisonment. [469] It seems clear that Alabama’s judges do not use their power to rectify discriminatory sentencing—according to a 2005 report, 81% of executions were for murders of white victims, despite that only 35% of homicide victims were white. [470] According to a July 2011 report, less than 35% of homicide victims in Alabama are white; however, 75% of the overrides by judges to impose capital punishment were in cases involving a white victim. More than half of the overrides that changed the punishment to the death penalty in Alabama were imposed on black defendants. [471]

Dorothy Roberts writes of the U.S. criminal justice system: “It would be hard to conjure up a mechanism that more effectively subjugates a group of people than state-imposed mass incarceration, capital punishment, and police terror, which not only confines and disenfranchises a staggering proportion of black people, but also devastates the communities they come from.” [472] According to her, the U.S. criminal justice system functions to reinforce white superiority by disproportionately policing, incarcerating and, ultimately, executing blacks—and this is not an accident, but rather its purpose. [473]