The University of the District of Columbia Law ... - UDC Law Review

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40 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWas well as in the federal government, show stark similarities in the substantialimpact that race has on capital punishment. It is evident that if a defendant is anAfrican American and he is convicted of murdering a white victim, nine times outof ten, he will receive the death penalty. This gross disparity, unfortunately is anAfrican American defendants' reality. The question is what will the courts andlegislators do to counter this increasing problem of injustice?IlL THE CURRENT TRENDThe death penalty is essentially an arbitrary punishment. There are no objectiverules or guidelines for when a prosecutor should seek the death penalty,when a jury should recommend it, and when a judge should give it. This lackof objective, measurable standards ensures that the application of the deathpenalty will be discriminatory against racial, gender, and ethnic groups.-Rev. Jesse Jackson, 1996 59Today, capital punishment is underlined with racial discrimination against AfricanAmerican males. Capital sentencing is administered in an arbitrary andcapricious manner by a lynch mob: the bench, the prosecutors, the jury, and eventhe defense attorn~ys.The judge can have personal bias against African American males, which canimpair him or her from recognizing and correcting racial discrimination carriedforth by prosecutors in the sentencing process. A judge can influence the jury byinstructing the jury in an improper discriminatory manner. For example, in a casein which Attorney Ronald J. Tabak represented a Florida death row inmate, thejudge misinstructed the jury on· ten different occasions. 60 The judge told the jurythat they were not responsible for sentencing the defendant therefore, if theyrendered the death penalty as a verdict, their decision would not be on theirconsciences or shoulders because the judge could do whatever he wanted. 61 Thejudge was basically telling the jury that they could render a harsh sentence, thedeath penalty, and not feel guilty about it, because their verdict was of littleweight. 62 Clearly, that was wrong. Under Florida's law, the jury's decision carriesgreat weight. By the judge instructing the jury in such a manner, the jury couldnot render a fair verdict. 63In another case in Florida, a white judge stated during the trial penalty phaseof an African American defendant, "'since the nigger mom and dad are here59 Dieter, supra note I, at 13.60 Carter Center Symposium on the Death Penalty-July 24, 1997,14 Ga. St. U. L. Rev. 329,341(1998) (citing Dugger v. Adams, 489 U.S. 401 (1989».61 [d.62 [d.63 [d.
CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 41anyway, why don't we go ahead and do the penalty phase today instead of havingto subpoena them back at cost to the state.,,,64 When the defendant, AnthonyPeek, challenged his death penalty sentence based on racial discrimination, theFlorida Supreme Court upheld the lower court's decision. 65 In addition, JudgeEarl Blackwell of Missouri stated in a press release while presiding over a deathpenalty case of an African American defendant that, '[T]he Democrat partyplaces far too much emphasis on representing minorities ... people who don't (sic)want to work, and people with a skin that's any color but white ... ,66 Aftermaking this blatant racist statement, Judge Blackwell continued to preside overthe case in which the defendant was convicted and sentenced to death. 67 DespiteJudge Blackwell's racist remark, the Missouri Supreme Court affirmedBlackwell's death sentence in Missouri v. Kinder. 68There are countless other cases that have played out the same way. Yet, despitethese blatant remarks made by the person who has a vast amount of influencein deciding whether a defendant is sentenced to death, these verdicts areaffirmed by the appellate courts. What kind of message is being sent to AfricanAmerican defendants? Their lives are not valued. They are not human. Whatabout a defendant's fundamental right to a fair trial afforded by the United StatesConstitution? Are judges given the option to follow or not to follow the laws setforth in the Constitution, despite the oath that they take to uphold theConstitution?The prosecutor also carries much weight in the capital sentencing process. Inreality, it is at the prosecutor's discretion to seek the death penalty and whetheror not to withdraw a notice to seek the death penalty as a part of negotiated pleabargains. 69 Therefore, the courts should not tolerate prosecutors racially discriminatingagainst African American defendants. However, the courts do not challengerequests by prosecutors for the death penalty in cases against AfricanAmerican defendants.The Baldus Study revealed that prosecutors sought the death penalty in 70%of the cases involving African American defendants and white victims. In addition,prosecutors sought the death penalty in 320/0 of the cases involving whitedefendants and white victims and 19% of the cases involving white defendantsand black victims. 7o There is clearly a substantial difference in the cases involvingblack defendants and white victims compared to the cases involving whitedefendants and black victims. The reason for this disparity results from a prose-64 Dieter, supra note 1, at 4 (citing Peek v. Florida, 488 So. 2d 52, 56 (Fla. 1986».65 Id.66 Id. (citing Brief for Appellant, Missouri v. Kinder, 942 S.W. 2d 313 (Mo. 1996)67 Id. (citing Kinder, 942 S.W.2d at 313).68 Id. (Brian Kinder, an African American male was convicted and sentenced to death).69 Bright, supra note 5, at 434.70 See McCleskey, 481 U.S. at 287.
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