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As a capital defense lawyer who has represented death row
inmates for over eleven years, I am most familiar with the
criminal process in the state courts, particularly those in
Alabama. Those of us who litigate capital cases in the South have
had the opportunity to learn firsthand how charging decisions are
made and, often through bitter experience, how race continues to
play a major role in the machinery of death.
As in the nation as a whole, statistics reveal that the
application of the death penalty in Alabama is marked by extreme
racial disparities. Alabama's death row is 47% black, whereas the
state population is 25% black. Although only 6% of all murders in
Alabama are black-on-white, 60% of the black inmates on Alabama's
death row are there for killing whites. Sixty-five percent of
those executed in Alabama in the modern era have been black.
As is true in most jurisdictions, the process for charging
someone with a death-eligible crime in Alabama involves a
prosecuting attorney and a grand jury. Capital indictments are
returned by grand juries sitting in one of the state's 67
counties. Cases are brought to the grand jury by prosecutors from
the office of a district attorney who is elected in a judicial
district, which sometimes covers several counties. None of
Alabama's 40 elected district attorneys is black.
Grand jurors are randomly selected to serve from a list of
county residents compiled from drivers' license data and other
sources. Procedures for choosing the foreperson of the grand jury
can vary from county to county: sometimes the presiding judge
decides (with or without help from the prosecutor), sometimes the
panel members choose, and at other times it is by lottery. Data
have been collected on grand jury forepersons in various counties
in Alabama. For example, Monroe County is 35% black. Statistics
compiled for Monroe County criminal cases found that only one
black had been chosen to lead a grand jury over a period of
fourteen years. In Morgan County, as part of his appellate
litigation, a death row inmate showed that from 1927 to the time
of his trial in 1994, no black person had ever served as leader
of a grand jury. Talladega County, with a population that is 31%
African American, had seen only a handful of black forepersons.
The chief judge in the county testified at a hearing that he
handpicked the forepersons based on whom he knew and liked. Thus
in the grand jury, the body that affirms or rejects a potential
criminal charge, race is already a factor.
It is the district attorney, however, who decides what
indictment to seek. The fundamental decision of whether to pursue
a capital conviction and the death penalty rests entirely with
him or her. Very few southern counties have "committee"
decisions, unlike the federal government, where input is included
from a number of people and is reviewed by the Attorney General.
As long as a crime fits the state's definition of what can be
deemed a capital offense-- murder during a robbery, for example,
or during any other felony--the district attorney has discretion
to prosecute it as a capital case if he or she sees fit. There
are rarely any other parameters or oversight.
Because it is both highly discretionary and shielded from
scrutiny, this process is especially subject to abuse. District
attorneys in states such as Alabama are elected officials. They
are aware of public responses to local crimes and of the
political advantages to appearing tough on crime. They hold their
positions only so long as they remain popular with the majority
of voters. In this political climate, rarely will they be taken
to task for failing to charge a defendant with a lesser offense.
It would, of course, be an unusual prosecutor (and not a
politically savvy one) who would state publicly that race was a
factor in her choice of charge. Unstated motivation is not easy
to ferret out, particularly in the course of adversary
proceedings. Litigation has sometimes made it possible to probe
the exercise of charging discretion by prosecutors, and the
results have been revealing. One such instance arose in Muscogee
County, Georgia in 1989. The prosecutor there was seeking the
death penalty for the second time against William Anthony Brooks,
a young black man accused of raping and killing a white woman.
Muscogee County led death penalty convictions in the state, and
had the state's greatest proportion per capita of inmates on
death row. At the time of Brooks' retrial, there were sixteen
people from Muscogee who had received death sentences. Half of
them were black.
Attorneys at the Southern Center for Human Rights in Atlanta,
where I was then practicing, looked carefully at the county data
on capital cases. We discovered that not only was there a
substantial overrepresentation of blacks as defendants, but
nearly all the capital cases had white victims. In 78% of the
cases in which the Muscogee County prosecutor had pursued the
death penalty, the victims were white--despite the fact that 65%
of homicide victims in the area were black. Only six of the
twenty-one capital cases brought in the circuit had black
victims, and in half of those cases, there was more than one
victim. In other words, it seemed that it took two black lives to
equal one white life in the eyes of this prosecuting attorney.
We decided to see if we could prove that race actually was a
factor in the decision to seek the death penalty for Brooks. We
asked the prosecutor, on the record, how he determined in which
cases he should pursue the death penalty. He maintained that race
had nothing to do with his decisions. He said he sought the death
penalty whenever the prior record of the accused or the
aggravated nature of the crime (one accompanied by a felony, or a
particularly brutal case, for example) warranted it. He also
claimed that the desire of the victim's family for punishment was
a significant factor.
Determined to find out if this was in fact true, we sought and
received discovery from the trial court to test the prosecutor's
assertions. We gained access to all the files the district
attorney's office kept on homicides in the ten years prior to
Brooks' trial. There were about 275 cases in all. We then combed
each file for information regarding the offender's prior criminal
history and the aggravation attendant to the crime. We then
presented the information we found to a statistician who made
cross-racial comparisons among these cases with the features the
prosecutor had asserted had mattered most to him in deciding
whether to seek the death penalty.
The results showed that even when the circumstances of the
crime were comparable, the district attorney pursued the death
penalty far more often when the victim was white. For example,
for murders accompanied by another felony, the prosecutor sought
the death penalty 47% of the time when the victim was white but
only 11% when he or she was black. In cases with more than one
perpetrator, the death penalty was sought in 53% of the white
victim cases and 10% of the black victim cases. Statistically
significant discrepancies were found in nearly every category.
We also pursued the claim that the wishes of the victims'
families were a significant factor in the decisions. In Brooks'
case, the parents of the dead woman were adamant that he be
sentenced to death and would not consider a plea to any lesser
punishment. Working from the files of the most aggravated crimes,
we went to see the family members of county murder victims who
were black.
Had the prosecutor's rationale been correct, they would have
told us that they asked him not to seek the death penalty. None
said this. What they did tell us, time and again, was that no one
from the district attorney's office had ever spoken to them, much
less asked their opinion. I spoke with one woman who had lost
both her sons to homicide. She cried so loudly during a
preliminary hearing in one of the cases that she was asked to
control herself or leave the room. She learned from the
television news that the man accused of killing her son had pled
guilty to a lesser offense. No one had contacted her about either
killing.
In sum, none of the prosecutor's reasons for seeking the death
penalty turned out to be supported by the evidence. Race did play
a role in his decision-making, so much so that he did not even
concern himself with the wishes of survivors who were not white.
After a change of venue, a racially- mixed jury convicted Brooks
of Jeanine Galloway's murder, but this time voted unanimously
against the death penalty. His conviction was affirmed by the
Georgia Supreme Court in 1992.
The findings in the Brooks case should not be totally
surprising. The country is fascinated when a blonde child beauty
queen is found dead in her parents' home, or a young white
British nanny is thought wrongly convicted of killing her charge.
Columbus, Georgia brought out all manner of detectives,
investigators and helicopter searchers when Galloway, the victim
in the Brooks case, disappeared. Rarely do black defendants or
people of color victimized by sexual assault or murder so capture
the headlines or garner public sympathy. Since the prosecutor's
actions fit so seamlessly into the culture around him, it did not
even occur to him how deeply race-based his decisions were.
Racism can also rear its ugly head in plea bargaining, the
stage that often follows an indictment or pretrial litigation. In
an effort to avoid the electric chair, Brooks offered to forego
trial, accept a life sentence and give up all right to seek or
accept parole. Our legal team drafted contracts and sought the
input of the Georgia Board of Pardons and Paroles regarding their
enforceability. Resolute that this was a "death case," the
prosecutor refused to negotiate.
This insistence on a death sentence is often politically
motivated. For example, the Muscogee County prosecutor asked one
father of a white homicide victim whether he wanted the death
penalty, and was told that he did. The District Attorney sought
and obtained death in that case. The father later contributed
$5,000 to the prosecutor's successful campaign for judge in the
next election. In another Georgia case on retrial, the defendant
offered to plead guilty in exchange for his life but was
repeatedly rebuffed. Tony Amadeo's conviction had been reversed
because at his first trial, the Putnam County District Attorney
had sent a memorandum to the jury commissioners instructing them
on how to avoid detection while limiting the number of minorities
and women on the grand and petit jury rolls. The memorandum
surfaced when Amadeo was in state postconviction proceedings, but
the Georgia courts refused to find anything amiss. The United
States Supreme Court ultimately reversed his conviction and death
sentence in a unanimous opinion, noting that the prosecutor had
used his office "so as to deliberately under-represent black
citizens."
On retrial the same prosecutor insisted on having a second
chance. He maintained that this robbery/murder was a classic
death penalty case and had to be prosecuted as such. During
pretrial litigation, we filed a "Motion to Disqualify the
Prosecutor" on the basis of his conduct at the first trial. We
sent with it an amicus brief from leading ethics professors and
prosecutors in Georgia and elsewhere who demanded that the
district attorney recuse himself on account of his previous
odious act. The next day the prosecutor agreed to plead the case
to a life sentence. . . .
We were lucky in the Brooks case to be able to establish as
clearly as we did that racial bias, conscious or unconscious, was
inextricably bound up with the prosecutor's decision to seek the
death penalty. We were able to empirically refute the reasons the
prosecutor gave for his charging decisions, and to provide some
insight into how these glaringly disparate numbers came to be. To
us, the numbers in Muscogee County spoke volumes about the role
racial bias played in who was condemned to die.
We did not rest on statistics, however, because we knew that
from a legal standpoint they had little significance. . .
The numbers that characterize the administration of the death
penalty in this country are staggeringly disproportionate by
race. That our highest judicial decision-makers are willing to
embrace such assumptions in the administration of justice is
profoundly disturbing. Until there is a recognition that racial
bias is an influence in our system of criminal justice, we cannot
be comfortable with the outcomes that system produces.
It is critically important that we explore these statistics,
that we educate people about how they came to be, and that we
continue to conduct the kinds of inquiries that exposed the
biased approach in the Brooks case. Those of us concerned with
racial justice should not rest until the existence of racial
disparities in the criminal justice system is acknowledged and
effective remedies are instituted. |
