Race and the Death Penalty

Racial bias infects every aspect of death penalty cases, from the decision to seek death to jury selection to sentencing. Indeed, in nearly every state where the relationship between race and the death penalty has been analyzed, researchers have "found a pattern of discrimination based on the race of the victim, the race of the defendant, or both." For more information on the death penalty in the U.S., see our report: Too Broken To Fix: An In-Depth Look At America's Outlier Death Penalty Counties.



Juror in Georgia case scheduled for execution this month: "I have wondered if black people even have souls." On September 26, Georgia intends to execute Keith Leroy Tharpe, who is black, for the murder of his estranged wife. According to Tharpe's attorneys, one juror signed an affidavit that distinguished between "Black folks" and "Niggers." [Rhonda Cook / Atlanta Journal-Constitution] The juror allegedly said that the victim and her family are "nice black folks" and that Tharpe "wasn't in the good black folks category in [his] book." The juror also apparently said that "[s]ome of the jurors voted for death because they felt that Tharpe should be an example to other blacks who kill blacks, but that wasn't [his] reason." So, what was the reason then? "After studying the Bible, I have wondered if black people even have souls. . . . [L]ook at O.J. Simpson. That white woman wouldn't have been killed if she hadn't have married that black man." [Tharpe v. Warden (pages 15, 16)]

Georgia law states that this type of affidavit is inadmissible because jurors are not permitted to impeach their verdicts. [Kate Brumback / AP]. However, the U.S. Supreme Court ruled last term that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." [Pena-Rodriguez v. Colorado]

Earlier this week, U.S. District Judge Ashley Royal of the Northern District of Georgia denied Tharpe's motion to reconsider the integrity of his death sentence. The judge found that the Pena-Rodriguez decision does not apply retroactively to Tharpe's case. The judge also reasoned that there is no evidence that race was considered during the jury's deliberations. The judge also emphasized that the juror was possibly intoxicated when the racist statement was made, and that the juror claims that his statement had been misconstrued. [Order Denying Relief]

Las Vegas prosecutors are being accused of discriminatory jury selection—again. Meanwhile, in Nevada, a death row inmate is appealing his sentence, arguing that he was unable to get a Batson hearing to determine whether the prosecutor struck a Hispanic and black juror based on race. The Nevada Supreme Court heard oral argument yesterday. [Oral Argument Audio] The defense alleged that although the government gave purportedly race-neutral reasons for striking those jurors—skepticism of the death penalty, marijuana use, among others—they kept white jurors who expressed similar sentiments. The main issue, though, is that the judge released some of the jurors before the challenge to their dismissal was heard, which Giancarlo Pesci, who argued on behalf Clark County, acknowledged is "not the best practice." [Sean Whaley / Las Vegas Review-Journal] In 2016, the Nevada Supreme Court reversed a man's death sentence because Clark County prosecutors struck a black female prospective juror in a discriminatory fashion, and in 2015, a Nevada Supreme Court justice said to Clark County prosecutors at oral argument: "You're so afraid of losing a case that you're knocking off African-Americans consistently." There was also a 2016 reversal under Batson for gender discrimination and a 2014 reversal for the racially-motivated use of peremptory strikes.

In Orlando, the elected prosecutor creates a new death penalty committee. State Attorney Aramis Ayala, who represents Florida's Orange and Osceola Counties, announced earlier this year that she would no longer seek the death penalty. Racial disparities in the application of the punishment were one of the reasons she came to that conclusion. Ayala’s announcement led Governor Rick Scott to remove 29 first-degree murder cases from her office by executive order. Senator Randolph Bracy, Chairman of the Florida Senate Criminal Justice Committee, said Scott's orders "are meant to punish the state attorney, Aramis D. Ayala, Florida's first black elected prosecutor, for announcing she would no longer seek the death penalty because it was not in the best interest of her jurisdiction." Bracy also noted that "Ms. Ayala's arguments for rejecting the death penalty were compelling and well reasoned; they were drawn from the stark racial disparities in the criminal justice system that she confronts every day." [Randolph Bracy / New York Times]



Ayala challenged Scott's power to remove the cases, but the Florida Supreme Court ruled against her, noting that Florida law provides the Governor with very broad powers in this area. [Order Denying Ayala's Challenge to Scott's Decision] Ayala has since announced that she would lift her ban on seeking the death penalty, and she created a seven-person committee that will decide whether to seek the death penalty in future cases. [Jason Kelly / WFTV 9 (includes video of press conference announcing the new review committee)]