The Race To Capital Punishment

When even the Wall Street Journal admits that the use of the death penalty in America has a massive racial imbalance that vastly kills more black and Hispanic people, you know that the days of America being able to justify its use are dwindling.  The case of Duane Buck, a Texas death row inmate, is a perfect example of everything wrong with the current death penalty system.

But there is a deeper, more troubling racial dimension to such cases. According to data from the Death Penalty Information Center, 72% of the nation’s executions since 1976 have occurred in the 11 former slaveholding states of the Old Confederacy, where lynchings and executions were routinely employed as methods of racial control. Between the end of the Civil War in 1865 and 1976, 87% of those executed in Mississippi were African-Americans, a figure slightly above the overall Southern average of 80%. Most Southerners put to death for a nonlethal crime in those years were blacks accused of robbing or sexually assaulting a white. Historians of the era have found a long record of trumped-up rape cases, like the one portrayed in the novel “To Kill a Mockingbird.”

A few years ago, the NAACP’s Legal Defense Fund hired criminologist Ray Paternoster to study the impact of race on death penalty prosecutions in Harris County during the 1990s, when Mr. Buck’s trial occurred. He found that prosecutors were three times more likely to seek the death penalty for blacks than for whites under similar circumstances. What he didn’t consider—because it had no direct bearing on Mr. Buck’s case—is perhaps the key factor in death penalty cases: the race of the victim.

Previous studies have shown that defendants are far more likely to be prosecuted for capital murder and sentenced to death when the victim is white. In places like Harris County, this still holds true. According to the Texas Department of Criminal Justice, the majority of African-Americans from Harris County on death row were convicted of killing a white, despite the high number of black-on-black homicides in the Houston area. (Indeed, Mr. Buck himself was offered a plea deal of life in prison for his double-murder, but he refused.) Equally important, every white awaiting execution from Harris County was convicted of killing another white. Here are signs that white lives do matter more than black lives, at least in capital cases.

Change may be coming. Texas currently houses 246 death row inmates, but the pipeline that supplies them appears to be closing. In 1999, Texas juries sent 48 defendants to death row; in 2015, they sent just three—none of them African-American and none from Harris County.

Many reasons have been given for this shift—the enormous cost of death-penalty cases, the racial imbalance, the stories of innocent men removed from death row. But the best explanation may be the law passed in 2005 that offers the option of life in prison without parole. Increasingly, Texas juries are taking advantage of it, regardless of the prosecutor’s recommendation.

Every year we get closer and closer to a Supreme Court case that will end the death penalty again, and I think the replacement of Antonin Scalia will play a big role in that.