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38 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWmurders are accompanied by another felony. A majority of the states considercertain aggravating and mitigating circumstances when deciding if the capitalpunishment is proper. Generally, the prosecutor is the one who decides whetheror not to seek the death penalty in criminal cases. The prosecutor's decision canalso be influenced by the requests of the victim's family.The next step is the selection of the jury and then the trial. If the defendant isconvicted, he or she has an automatic right to appeal the trial court's decision. Ifthe appellate court affirms the trial court's decision, the defendant is executed bythe electric chair, lethal injection, or a firing squad.In 1987, the Supreme Court was again faced with the issue of racial disparitiesin capital sentencing in the case of McCleskey v. Kemp.43 In this case an AfricanAmerican man was convicted of killing a white police officer and sentenced todeath. McCleskey filed a petition for a writ of habeas corpus claiming that Georgia'scapital sentencing process was administered in a racially discriminatorymanner, in violation of the Eighth and Fourteenth Amendments. 44 McCleskeyoffered a statistical study showing racial disparities in Georgia's capital sentencingpractices. This study is known as the Baldus Study, documented by ProfessorDavid Baldus, Charles Pulaski, and George Woodworth. 45The Baldus Study illustrated that there were gross disparities in Georgia's capitalsentencing administration. This study examined over 2,000 murder cases thatoccurred in Georgia during the 1970'S.46 In almost 90% of the cases involvingwhite victims since 1977, the death penalty was imposed. 47 The study concludedthat defendants who murdered white persons were 4.3 times more likely to receivethe death penalty than defendants who murdered black victims. 48 Consequently,in 11 % of cases involving white victims, the defendants were sentencedto death. However, in only 1% of cases involving black victims, the defendantreceived the death penalty.49 In addition, the death penalty was given in 22% ofthe cases involving black defendants and white victims, while the death sentencewas only given in 3% of the cases involving white defendants and black victims. 50Ultimately, the study concluded that out of all the factors used, such as the natureof the crime, and the occupation of a victim, the race of the victim was the pervasivefactor in determining whether a defendant should be sentenced to death.Today, lynching is still being played out on African American males. From1996-1998, Professor David Baldus, conducted an analysis of race and capital sen-43 McCleskey v. Kemp, 481 U.S. 279 (1987).44 Id.45 Id.46 Id. at 286.47 Weatherspoon, supra note 22, at 48.48 McCleskey, 481 U.S. at 287.49 Id. at 286.50 Id.
CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 39tencing in Philadelphia with statistician George Woodworth. This study revealedthat African Americans in Philadelphia, like African Americans in the BaldusStudy, were 3.9 times as likely to receive the death penalty than non-AfricanAmerican defendants. 51 This study was based on case variations stemming fromthe severity of the crime to the background of the defendant. Still, after beingsubjected to numerous forms of analysis, the conclusions affirmed the continuinginjustice of race in capital sentencing: African American defendants were stillbeing sentenced to death far more than other defendants. 52In addition, Professor Jeffery Pokorak and researchers at St. Mary's UniversityLaw School conducted a national study based on capital punishment casesthroughout the country. This 1998 study revealed that white persons were almostexclusively the key decision makers in capital sentencing cases, which partly explainsthe reason for the racial disparities. 53 White persons (mostly male) accountedfor 98% of the Chief District Attorneys in counties that administer thedeath penalty, while African Americans accounted for 1 %.54In 1996, statistics of racial disparities were found to be excessive in Kentucky.African Americans accounted for 1000/0 of the death row inmates responsible formurdering white victims. However, there were no death row inmates responsiblefor murdering a black victim. Moreover, there have been over 1,000 AfricanAmericans executed since reinstatement of the death penalty.55 These overwhelmingstatistics of a gross racial disparity caused the Kentucky Legislature toaddress racial discrimination in their capital sentencing process.However, the states are not the only ones that have such a gross disparity intheir capital sentencing process. The Federal government has the worst recordregarding racial discrimination in capital sentencing. 56 Former U.S. AttorneyGeneral Janet Reno approved the death penalty in a Washington case in whichthere was little federal interest. She approved the sentence over the objection ofthe local U. S. Attorney. In addition, Reno approved death penalty sentences inher first ten cases, which were all against African Americans. 57Finally, more than three-fourths of studies on racial disparities have shownthat African American defendants were more likely than white defendants toreceive the death penalty.58 Clearly, these statistics validate the claims of racialdiscrimination in the capital sentencing process. Statistics from different states,51 Dieter, supra note 1, at 5.52 [d. at 2.53 [d.54 [d.55 [d. at 12.56 Bright et.al., The Death Penalty in the Twenty-First Century, 45 Am. U.L. Rev. 239, 296(1995).57 [d.58 [d. at 323.
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