Tilted Playing Field

From: No Justice: No Victory — The Death Penalty in Texas
by Susan Lee Campbell Solar, edited by Susan Bright
Excerpt from Chapter One: Tilted Playing Field

Race and capital murder charges

A report by the Government Accounting Office on racial bias in capital sentences included the observation that in 1993, for example, Texas had executed 17 men, 11 of whom were black, and the victims of 8 of those 11 had been white. The report inspired a provision in a 1994 Congressional House crime bill to allow “statistical evidence of racial bias in executions” to be used in defending minorities against capital charges. The provision was opposed by “national associations for attorneys general, district attorneys and law enforcement groups,” including Texas Attorney General Dan Morales, who said the provision “would effectively end the death penalty,” a deeply disturbing comment and conviction.

At the end of January 2001, 180 of the 439 men on Texas death row were black — about 41% in a state where the black population is less than 12%. Among women on death row, three of seven were black, for a similar percentage of 43%. Of the 39 men and one woman executed in the state in 2000, 40% were black — exactly the same proportion as of blacks executed in the nation that year. Between 1982 and 1999, of the 30,000 homicide arrests in the state, blacks were about a third. Hispanics constituted just under a third, and whites were arrested just slightly more frequently than blacks — despite the fact that whites were over 60% of the population. Blacks were arrested for murder at a rate almost three times their proportion (12%) of the citizenry. Whites were arrested at a rate about 40% lower than their proportion of the population. Beyond that, blacks were being condemned in even higher proportions (41% versus 33%) than the proportion of their arrests. Hispanics constituted 22% of the Texas men’s death row in 2001, a few percentage points less than their 25% proportion of the population, but much less than their arrests might lead one to expect.

It is easier to gain a capital conviction against someone with a prior felony record. A report, released in the fall of 2000 by the Justice Policy Institute, revealed that “one of three young black men (29% of the black male population between 21 and 29) are in prison, jail, probation or parole in Texas on any given day,” and that blacks “are incarcerated at a rate seven times greater than whites,” a rate that is “nearly 63% higher than the national incarceration rate for blacks.” In fact, blacks constituted 44% of the total prison and jail population of Texas, almost four times their representation in the total population.

Racial profiling at the street level may initiate a domino effect — arrests and jail time, even if brief, affect employment possibilities and personal finances, and this then makes police, judges and juries more likely to believe a person is guilty the next time around. Furthermore, blacks receive lower proportions of probationary sentences (21% of the total caseload) and are under-represented in substance abuse programs (27%) compared to their proportion of the incarcerated population.

Studies released in 2000 and 2001 by Building Blocks for Youth, backed by a coalition of groups including the American Bar Association Juvenile Justice Center and the National Council on Crime and Delinquency, reveal “negative race effects at one stage or another of the juvenile justice process” which result in over-representation of youth of color in detention. These studies made the astounding observation that 82% of cases filed in adult courts were for minority youth.

The “Youth Crime/Adult Time” study, released in October 2000 by Dr. Jolanta Juszkiewicz, studied juvenile felony cases prosecuted in adult courts in 18 large urban areas in the US, including Harris County. One of the findings of the study was that, compared to the number of felony arrests of African-American youth, blacks were sent in higher percentages than whites to adult courts and were more likely to be held in adult jails pretrial, although they were granted lower bail than whites. They were also less likely to be represented by lawyers hired privately than whites. Eleven percent of blacks had private attorneys versus 21% whites. White youth were twice as likely to see their “charges reduced to a misdemeanor.” African Americans (58%) and Latinos (46%) were more likely than whites (34%) to be sentenced to jail, and if sentenced for whatever offense, African-Americans got longer sentences than Latino or white juveniles.

In Harris County 83% of juvenile cases filed in adult courts concerned minorities. “African American youth accounted for approximately one out of four felony arrests, but represented one out of two felony cases filed in criminal court.” All youth in Harris County who were detained awaiting trial were held in adult jails. There, only 36% of African-American youth and 33% of whites had private attorneys, versus 75% of the hispanic youth. All youth with private attorneys had a better shot at escaping conviction or getting transferred back to juvenile court, and — presumably because more had private attorneys — hispanics were more likely to receive split sentences or probation.

Marquart and Sorenson report that a person of any race who murders a white person is over five times more likely to wind up on death row in Texas than someone who kills a black. And while almost one of every four state homicide victims are black males, only about one in 200 of those put to death in the same era were there solely because they had killed a black male. In Texas, it hasn’t happened that a white has been executed for killing a black since pre-Civil War days, when a white man killed a plantation owner’s favorite slave and was hanged for stealing. In the United States through September of 1999, only 10 whites had been executed for killing blacks out of the 600 or so executed to that point since executions resumed in 1977.

Former Court of Criminal Appeals judge, Morris Overstreet, commented during a panel on capital punishment at the University of Texas Law School, Hemann Sweat symposium in April 2001, “There are no African American District Attorneys in Texas. Since prosecutorial discretion (judgment about whether to press capital charges and go to trial) is so important in deciding who gets the death penalty, that African American perspective needs to be there.” St. Mary’s Law School professor, Jeff Pokorak, authored a study in 1999 showing that 98% of the District Attorneys in capital cases in the U.S. are white — only 1% black.

People of color are also under-represented in the legal profession. In May of 2001 the Texas Bar Association’s membership was 11% people of color, whereas the population was 40% people of color. Only 3.6% of the Bar members were African-American, less than 6% Latino, barely over 1% Asian.

Overstreet suggested that “prosecutors should have to present to a judge a public statement whenever they don’t go for the death penalty when the facts show they could.” This would make racial imbalances in prosecutorial discretion more transparent. He also pointed out “not enough is done about the exclusion of African American jurors.” Defense attorneys say the Court of Criminal Appeals winks at these problems.

In the fall of 2000, the Texas Defender Service, a small non-profit group of attorneys who work on capital defense primarily at the appeals stage, released A State of Denial: Texas Justice and the Death Penalty. The study included an analysis of homicides between 1995 and 1999 in Montgomery County, a suburban and rural area northeast of Houston — 85% white, historically a conservative area sharing the racial and political views of East Texas.

East Texas is dominated by members of the Baptist Church and other fundamentalist Christian religious expression. It was the Texas slave and plantation center prior to the civil war. Between 1995 and 1999, nearly a third of the homicides in Montgomery County were against people of color, but none of those led to death sentences. In over 40% of the crimes against people of color there were no arrests, compared to a 92% arrest rate when the victims were white. While all but 10% of the cases involving white murder victims went to trial, including three that led to death sentences, the murders of seven Latinos in separate incidents led to only one arrest. The daughter of one black man killed when his home was invaded said she was treated rudely by the district attorney’s office, which didn’t even acknowledge her loss, in contrast with the intensive media coverage and solicitous treatment received by relatives of a white couple killed in similar circumstances. Clearly some victims were valued more than others.

One would like to believe Montgomery County is unusual, but it is widely acknowledged in Texas, and confirmed by studies, that the pattern is all too typical of the state, probably of the region and possibly of the nation. The Wall Street Journal reported in March of 2001 that of the 85 persons executed in the US in 2000, 40 were black while the percentage of blacks in the nation is less than 13%. Texas accounted for nearly half the total executions. 40% of those were black, neatly mirroring the national image, and the percentage of black males on Texas death row. A recent study in North Carolina of 502 homicides from 1993 through 1997 showed a similar pattern of racial discrimination. Murderers who kill white people are 3 1/2 times more likely to get the death penalty than those who kill nonwhites,” but the race of the killer doesn’t seem to affect the verdicts much.

To put this in national perspective, an analysis of the 707 executions in the United States until April 10, 2001, revealed that 83% of those capital cases involved white victims, although only 50% of the nation’s homicide victims were white. Thirty-five percent of the executed persons were black males, almost three times their proportion in the population as a whole. A 1998 report for the American Bar Association by Professor David Baldus found that the race of the victim mattered more in the South and the race of the accused mattered more in the North in capital prosecution and conviction. A Philadelphia study of homicides indicated blacks there received the death penalty at a rate 38% higher than others accused.

A Justice Department study of the federal death penalty released in September of 2000 showed “minorities account for 74% of the cases in which U.S. attorneys recommended the death penalty.” There were 19 federal death row inmates that year; 13 of those were black; six (five blacks and one hispanic) were from Texas.

Yale and Florida State University professor and NAACP assistant counsel George Kendall says, despite the 1972 Furman ruling which temporarily halted the death penalty on the suspicion that race played a role in its application, and in spite of subsequent attempts to write better laws “race is still a factor . . . . Since we can’t remove race from the death penalty, we should get rid of it.”

(Footnotes removed for space reasons, available upon request.)


No Justice — No Peace

From: Editor's Note: No Justice: No Victory, by Susan Bright

Susan Lee ran for governor against George W. Bush because she thought he was dangerous. When she first encountered him, he wanted to use Texas as a site to dump nuclear waste which indicated to her that he was uninterested in protecting the environment. He presided over the execution of more people than did most countries in the world during his time in office, which indicated to her that he didn’t mind killing people.

He came to power on a tough on crime platform that was an early manifestation of the politics of fear, as did his father. He worked to fast track habeas appeals because he thought habeas corpus law, which guarantees a citizen’s constitutional rights, was a waste of time. His take on clemency was the result of a complete misunderstanding of tripartite government. It didn’t’ bother him that people were condemned to die without evidence of their innocence ever making it into court. He didn’t much care about evidence.

It didn’t bother him that his state executed people who were under age, mentally ill or mentally incapable of understanding their situation or crime. It didn’t occur to him that prosecutors, judges and investigators should be held accountable if they contributed to wrongful convictions. George W. Bush believed the system which had elevated him to office worked just fine. Susan Lee didn’t.

She wanted to finish the book before the 2000 election, but the scope of the work was overwhelming. When I began work on it in the summer of 2002, George W. Bush was in office and 9/11 had scared America senseless. We closed our eyes as he fast tracked trade agreements that sent our jobs overseas.

The Patriot Act made short work of the constitutional rights of many Americans. Non-military combatants were being held in Guantanamo Bay. Arab Americans had been arrested and held without being charged, no word to families or friends, all over America, and George W. Bush was clamoring to invade Iraq, which has to date resulted in the death of between ten and thirteen thousand civilians and a thousand American soldiers.

When the Abu Ghraib prison scandal hit the world press, it read to me like the next chapter in Susan Lee’s book.

Now that I have arrived at the end of what seemed along the way to be an endless work, I realize the stories Susan chose to tell in depth were harbingers. Gary Graham (Shaka Sankofa) thought of himself as a political prisoner. The world saw Odell Barnes in the same way, not because either of them were above fault or started out in politics, but because they were black, poor, on death row and spoke out about their situation. Michael Toney was convicted of a terrorist bombing just after the 1998 Anti-terrorism and Death Penalty Act. Evidence against him was primarily hearsay, later contradicted by facts yet to make to before a jury.

Pablo Melendez was a gang kid so messed up from sniffing paint he didn’t remember whether he did the crime or not, but it was good politics to get gang members off the street. Larry Robison endured the devastating mental illness we call paranoid schizophrenia and slipped through the holes in the Texas mental health system, which ranks last in the country. He was violent only one day in his life, the day he killed six people, for their own good, because the voices said to do it.

What links these men condemned to die in a system George W. Bush braggs about, to the fundamental horror of American foreign policy under his administration is that in both circumstances people die from state sanctioned retaliatory acts of vengeance which result, with alarming frequency, from incompetence, racism, and/or because of an astounding disregard for evidence and human rights.


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