A s he was strapped to the gurney in the Texas death chamber, Henry Martinez Porter prepared to deliver his last words. The execution had been scheduled for midnight. Porter, convicted of fatally shooting a Fort Worth police officer who pulled him over, swore that he’d acted in self-defense; he was shot in the side during the altercation. But two different juries sent him to die. “The only thing that convicted me was that I am a Mexican and that he was a police officer,” Porter said. “People hollered for my life, and they are to have my life tonight.” Yet people never hollered for the life of a cop who killed a 13-year-old boy who was handcuffed in a police car, he said. People never hollered for the life of officers who beat a man named Jose Campo Torres and threw him in a river to drown. “This is America’s equal justice,” Porter said. “A Mexican’s life is worth nothing. When a policeman kills someone, he gets a suspended sentence or probation. When a Mexican kills a police officer, this is what you get.” It was the summer of 1985, and Porter’s last words made headlines across the country. Texas officials denied that he had been a victim of discrimination. “We had Mexican-Americans on the jury,” the trial judge told the Associated Press. A police spokesperson said Porter’s car had fit the description of a vehicle used in an armed robbery. “He was an admitted dope addict,” he added. “His argument really doesn’t seem to hold much water.” If there was truth to Porter’s protest about the death penalty as unequal justice, such questions were supposed to have been laid to rest.

In its historic 1972 ruling in Furman v. Georgia, the U.S. Supreme Court had struck down the death penalty as arbitrary and capricious, a lottery reserved for the poor and marginalized. States swiftly revised their statutes to pass constitutional muster. On July 2, 1976, the court upheld Texas’s new death penalty statute in Jurek v. Texas, writing approvingly that the legislation would ensure “the evenhanded, rational, and consistent imposition of death sentences under law.” Porter was sentenced to die a few weeks later. Jurek was one of four rulings released alongside Gregg v. Georgia, the landmark decision that ushered in what is known as the “modern” death penalty era. Collectively, the rulings upheld a new set of laws designed to rehabilitate a system the Supreme Court had declared broken just years before. Gregg and its companion cases announced to Americans that capital punishment could be carried out equitably after all. Executions restarted the following year.

Photo: Bettmann Archive/Getty Images

Yet it didn’t take long to see signs that the new death sentences were much like the old ones — only now they were handed down on an intensifying scale. By 1980, the country’s condemned population had far surpassed the nearly 600 people who’d been on death row when Furman came down. New research was starting to show that defendants were far more likely to receive the death penalty if the victim was white, particularly in the South, which accounted for the vast majority of new sentences. And while the percentages of black people sentenced to die dropped somewhat between Furman and Gregg, the number of people of color on death row began to rise. Between 1978 and 1982, “the number of Hispanics on death row has more than tripled,” AP reported. Race has always been at the heart of the American death penalty. The disproportionate punishment of defendants of color — and black people in particular — is one of its defining historical characteristics. As the 40-year anniversary of Gregg approached in 2016, we were confronted with a number of cases that seemed to embody the death penalty’s racist roots. One was a black man sent to death row in 1979, an era that was already revealing the failed promise of the Supreme Court’s 1976 rulings. Another was a man executed despite the fact that one of his sentencing jurors had revealed himself as openly racist. The previous year, Texas had come perilously close to executing Rodney Reed for the rape and murder of a white woman, a case that reads like a relic of the Jim Crow South. It was cases like these, which exposed old truths about the so-called modern death penalty, that inspired The Intercept to begin compiling a death-row dataset in the summer of 2016. The aim was not to recreate decades of rigorous statistical studies probing bias in capital punishment. Rather, we wanted to see what the numbers would show across a range of metrics, to produce a broad portrait of what four decades of “modern” capital punishment have wrought. As our starting point, we chose every individual sentenced to death starting on July 2, 1976, the day Gregg was announced. We limited our inquiry to active death penalty states, to focus on capital punishment as it exists today. We were curious not only about who had been executed, but also about how many people had been removed from death row — a sizable but largely invisible population. We wanted to see how many people had been resentenced, commuted, or released; how many had died awaiting execution; and how long people had spent on death row. And we wanted to see who is on death row today.

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.Graphics: Soohee Cho/The Intercept

It was also especially important to get a sense of the shifting racial demographics of death row in an era when capital punishment is on a precipitous decline. Our impression was that dwindling death sentences had a way of rendering old racial dynamics more stark. In 2016, for example, although new sentences dipped to a historic low, the vast majority of those sent to death row were people of color — and more than 50 percent were black. In Colorado, which had repeatedly struggled to pass abolition legislation, only three men were on death row — and all three were black. More recently, as we began to study the results of our data collection, we found indications that racial disparities are increasing as the use of the death penalty is decreasing. Our dataset shows that in the first full decade after Gregg, 46 percent of those sentenced to die in current death penalty states were people of color. In the decade from January 2009 through December 2018, that percentage grew to 60 percent. A similar trend can be seen across several leading death penalty states. If such raw figures do not tell the whole story, recent history could have foretold such an outcome in 1976. The Jurek decision was a glaring red flag, upholding a death penalty statute that cut to the heart of what capital punishment had always been about. The Texas statute was drafted on the dubious premise that jurors could predict a defendant’s future dangerousness — a subjective finding inextricable from racial attitudes. Today, Gregg is synonymous with the start of the modern death penalty era, but Jurek has sent more than 1,000 people to death row, coming to haunt even those who decided it. When he was asked in 2010 if there were any rulings he would go back and change, retired Justice John Paul Stevens named Jurek as the vote he regretted the most. With its execution tally set to reach 600 in the coming years, Texas is widely seen as an outlier, rather than an emblem of capital punishment as it stands in 2019. Yet it shares important characteristics in common with other death penalty states. Texas, too, is handing down fewer death sentences year after year. And these sentences are exposing a stark reality about who still gets sentenced to die. In Texas, during the first decade after Gregg, people of color made up 51 percent of those sentenced to death. This percentage has grown to 75 percent in the past 10 years. Of just seven people Texas sent to death row in 2018, all of them were men of color. If such trends are any indication, it seems clear that the modern death penalty era remains animated by the same racial dynamics that have always defined capital punishment — the same dynamics decried by Porter as he lay on the gurney in 1985. A Racist Backlash

Elmer Branch in his cell on death row in the Ellis Unit of the Texas Department of Corrections on March 5, 1972. Photo: Ed Kolenovsky/AP

On the day the Supreme Court announced its decision in Furman v. Georgia, 45 men were on death row at the Ellis Unit in Huntsville, Texas. Newspapers described how the men erupted in cheers after the news came over their TVs and radios. Many believed that it was the end of capital punishment. The day after the ruling, on June 30, 1972, the San Antonio Express published a photo of the Texas electric chair with the caption “May Never Be Used Again.” More than half of the 589 people spared by Furman were black. Among them was Elmer Branch, on death row in Texas. Twenty years old at the time of his arrest — and with a reported IQ of 67 — Branch had been sentenced to die for raping an elderly white woman in Vernon, Texas. He swore that he was innocent, but he was found guilty on the basis of eyewitness identification and a shoe print that matched his sneakers. When the Supreme Court announced that it would consider Furman back in 1971, the justices also took Branch’s case, along with another rape case out of Georgia. All three cases involved black defendants and white victims. During the oral argument before the Supreme Court, Branch’s lawyer invoked the racism underlying his client’s case. A black man convicted of rape in Texas, he said, “has an 88 percent chance of receiving a death penalty,” compared to the 22 percent chance faced by non-black defendants. As in the rest of the South, such statistics were a direct legacy of lynchings and racial terror. The vast majority of the state’s death sentences handed out for rape came from East Texas, which once held the highest population of enslaved people in the state. Furman, decided 5-4, was a tenuous and fractured ruling. Each justice wrote his own opinion, only two of which expressed opposition to capital punishment itself, rather than to how it was being applied. Most had little to say about racism, although the issue loomed large over the decision. The road that led to Furman had been paved in the 1960s by the NAACP Legal Defense Fund, which had embarked on a data-driven mission that exposed racial bias in rape cases. As Justice Thurgood Marshall noted in his concurrence in Furman, of 455 people executed in the United States for rape since 1930, 405 had been black. Nevertheless, lawyers had repeatedly failed to impress the courts with such statistics. Judges rejected the racial evidence as insufficient — although it is clear today that the deeper concern was that acknowledging racism would undermine the entire criminal justice system. The Supreme Court would eventually decide in McCleskey v. Kemp that racism in death sentences was inevitable, inoculating capital punishment from being challenged along racial lines. In the meantime, Furman was decided on the less controversial question of arbitrariness: the conclusion that the death penalty was “wantonly” and “freakishly” imposed, with no rhyme or reason guiding who should live and who should die. While the Furman court mostly steered clear of race, the reaction to the ruling was fueled by racist fearmongering. Georgia’s segregationist lieutenant governor called the decision a “license for anarchy, rape, and murder,” according to Evan Mandery in “A Wild Justice: The Death and Resurrection of Capital Punishment.” At a press conference, President Richard Nixon, who’d won election on a wave of racially incendiary “law and order” rhetoric, defended executions as a deterrent. That day, Mandery writes, “legislators in five states announced plans to enact new death penalty statutes.” Support for the death penalty skyrocketed. According to Mandery, in the last Harris Poll prior to Furman, 47 percent of respondents supported the death penalty, with 42 percent opposed. After Furman, a Harris Poll found 59 percent in favor. By the end of 1972, Florida became the first to pass a new death penalty law, followed by a slew of states the next year. Although they varied from place to place, the statutes fell into two broad categories: laws that made the death penalty mandatory for certain crimes, thus ensuring uniformity, and laws that created bifurcated trials, to give judges and juries discretion at the sentencing phase. But Texas did something unique. Like other states, it authorized the death penalty in specific circumstances, such as cases involving the killing of a police officer. And like other states, it split trials into a guilt phase and a sentencing phase. But unlike other states, Texas crafted three questions, or “special issues,” for the jury, which would decide whether a defendant would live or die: whether the crime had been committed “deliberately” and with the expectation that the victim would die “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” and whether the killing was “unreasonable” in response to any provocation by the victim. If jurors unanimously answered “yes” to the three questions, the defendant would be automatically sent to death row. The Texas statute came together hastily. Legislators rushed to pass the bill before Memorial Day. The final version of the bill was an attempt to compromise between a mandatory statute passed by the House and a discretionary statute passed by the Senate, with some additional language thrown in. One of the authors of the law told The Atlantic in 2016 that he could not recall where he got the language around future dangerousness, while an opponent to the measure said, “It was made up out of thin air.” When he signed it into law on June 14, 1973, Gov. Dolph Briscoe used a silver pen belonging to a slain Bexar County deputy sheriff, with the officer’s father looking on. The law went into effect immediately. Although many applauded the measure, there were also some notable critics. In a July op-ed, the publisher of the Huntsville Item, who had witnessed 189 Texas executions, dismissed the statute’s new provisions as “legal window dressing.” There was no meaningful difference between the old and new laws, he argued. The real deciding factor about who would live or die would come down to those who could “employ the best defense lawyer.” Returning to the court to argue Jurek in the spring of 1976, famed NAACP lawyer Anthony Amsterdam warned the justices about how the Texas law was being applied. The case of petitioner Jerry Lane Jurek, who had been convicted of raping and killing a child, “was tried under this statute exactly the way it would have been tried before Furman,” he said. The question of life or death came down to “supposedly factual questions, which are simply predictive judgments.” The process was “no less arbitrary” than before. On July 2, 1976, the court disagreed. That same day, a Texas jury sentenced Edward William Cortez to death — the first death sentence in the new era. Deliberate and Unreasonable

A gurney, used for execution by lethal injection, at the Texas Department of Corrections in Huntsville, Texas, on Dec. 6, 1982. Photo: Ed Kolenovsky/AP

Despite the green light from the Supreme Court — and with hundreds of people sent to death row in the years between Furman and Gregg — prison officials were not exactly poised to resume executions. Many of the nation’s death chambers had been repurposed. “A prison barber cut hair in Arkansas’s electric chair,” according to Mandery. “Pennsylvania employed its death chamber as office space. … Idaho’s held medical equipment.” The superintendent of Nevada’s prison system had told the press prior to the 1976 ruling that he did not know whether the state’s gas chamber still worked — and he did not intend to find out until he had to. After Gregg, the Colorado warden who had overseen the country’s last execution in 1967 decried capital punishment as discriminatory: “The larger number by far of those condemned are minority people.” Legal scholars reiterated their warnings about Texas’s law in the wake of Jurek. In a 1976 speech lambasting the statute, Yale law professor Charles Black Jr. pointed out the absurd redundancy of the questions posed to juries. The first question — whether the crime had been committed “deliberately” — was a prerequisite for winning a conviction for first-degree murder. The third question — whether the homicide was “unreasonable” in response to any provocation — would be similarly addressed during the guilt phase. But especially vague and pernicious was the second question, Black said. The notion that a jury could predict “future dangerousness” had no supporting evidence. It seemed inevitable that jurors would base their answers on pre-existing notions of criminality.



Graphic: Soohee Cho/The Intercept