Supreme Court and Capital Punishment | Race and the American Death Penalty
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Supreme Court and Capital Punishment | Race and the American Death Penalty

Let’s come to order. So, this is a panel on race
and the American death penalty. We’ve got a wonderful
set of speakers. The speakers have arranged
themselves in order. Let’s proceed. JOHN BESSLER: All right. My name is John Bessler. I have written a lot of books
about the death penalty. I always joke that I do
winter reading as opposed to summer reading. I’m working on a book
right now on, actually, The Death Penalty As
Torture, which I might say a word about at the end. And because so
much of my writing is directed at the Supreme
Court, my audience is nine, but now it’s down to eight, so
I’ve lost part of my audience. I want to thank Carol
and Jordan for inviting me to be here today. I’ve been thinking a
lot about, recently, the issue of equality, as well,
and inequality and the death penalty. And these issues are
very intertwined. The death penalty, and
race, and particularly, racial discrimination. And if you look at the words
on the Supreme Court building, “equal justice under law,” we
have not seen that be realized. In colonial America, slaves
were not only executed, but they were subject to
horrible forms of execution. Burning at the stake– there’s
a case right in Massachusetts here in 1755, where two
slaves were executed for planning to
poison their master, and the woman was
burned at the stake. And the man was– Mark was
the name of the slave– was gibbeted, and his body
was hung in chains for a couple of decades. And actually, when Paul
Revere did his famous ride, the body was still
there, shriveled up. And so, the history of the death
penalty cannot be separated from slavery. In fact, the use of executions
to quash slave rebellions and the fear of
slave rebellions was what drove a lot of the
use of the death penalty back at that time. I actually ran
across a case where a slave was not actually
executed but was lashed, I think, 29 times. And then, at that point,
there was a collar placed on the slave’s neck. If the slave ever left
his plantation again, he was to be hanged. And so, the threat
of execution was ever-present in colonial times. Of course, in the
Declaration of Independence, we have this
promise of equality. Then it was for all men. They excluded women. They excluded African Americans
from the social compact. But Gabriel– Gabriel was a
slave who was born in 1776, and he was involved
in a slave rebellion in Richmond, Virginia. And he had planned to
have a group of slaves gather together, take
over the capitol, take over the penitentiary,
take over the armory, and was going to march behind
the banner of death or liberty. Kind of the converse of the
Patrick Henry famous speech of liberty or death. And he was hanged, along
with two of his brothers and over 30 other
slaves participating in that rebellion. There was actually exchange
of views between James Madison and Thomas Jefferson
about when to stay the hand of the executioner. And this was the debate, and
after so many executions, they both concluded that
enough slaves had been hung. But there was enough
slaves hung to, presumably, try to put down
any other potential slave rebellions, at
least in their eyes. Gabriel had been involved in a
dispute with a former landowner before that, and had bitten
off the ear of the landowner in this dispute, and was branded
instead of being executed. But he was later, as I said,
executed in this rebellion, which took place in 1800. Actually, one of the
most interesting things I found in doing a
book on the history of the cruel and unusual
punishments clause, is that there was actually a
close association with slavery and the words that
we have in the Eighth Amendment, the “cruel and
unusual punishments” language. You find laws in South
Carolina, for example, which prohibit punishing a
slave with “unusual rigor.” You find laws in
various Southern states that prohibit the cruel or
unusual punishment of a slave. Now, this was not to
protect the slave. This was protect the property
interests of the slave owner. But the very words
in our Constitution have this tie back to
race and back to slavery. Now, of course, we all
know about Dred Scott, but early laws the
United States actually prohibited African Americans
from even testifying in court. And we, of course,
had the Civil War, the Emancipation Proclamation,
and the 13th Amendment, which abolished slavery
and involuntary servitude. And then, I was
looking back at some of the history in preparation
for the conference, and actually, one
of the things that was done after
the 13th Amendment was the Civil
Rights Act of 1866. And just to share with you
some of the language from that, it said that Section 1
provides that all persons born in the United States are
hereby declared to be citizens of the United States. And such citizens of
every race and color, without regard to any
previous condition of slavery or involuntary servitude,
shall have the same right to full and equal benefit
of the laws and proceedings for the security of
person and property, as is enjoyed by white citizens. “And shall be subject to
like punishment, pains, and penalties.” So, the Civil Rights
Act of 1866 expressly contemplated that there
would be “like punishment” as between whites and blacks. And then, Section 2 provided
a mechanism to enforce that and spoke of, if there’s
different punishment, than it would be a
misdemeanor, the maximum fine would be $1,000, imprisonment
not exceeding one year, in the discretion of the court. So the Civil Rights Act of 1866
was a very foundational act. There was some thought
that maybe Congress did not have the
authority to put these kinds of laws in place. There was a lot of debate,
even among Northerners, that maybe the
Congress overstepped its constitutional authority
in putting them in place. And so, what happened was the
14th Amendment came about. And the 14th Amendment,
the US Supreme Court and other commentators
have said, was intended to put
into the Constitution this idea of nondiscrimination,
and also this idea of equalizing punishments. Now the reaction, of
course, in the South– which had always had laws
that treated blacks and whites differently, the
slave codes– was to enact what were called
the Black Codes, which actually provided different
punishments for whites and blacks. Frederick Douglass
actually, in a speech he gave in 1852 in New York,
noted that in Virginia there were 72 crimes that were
punishable by death for blacks. There were only two
such crimes for whites. So dramatic differences. But the Supreme Court, in
the case of Jet v. Dallas Independent School
District, a case from 1989, actually, said that many members
of the 39th Congress– we’re talking about the
14th Amendment– viewed Section 1 of
the 14th Amendment as, quote “constitutionalizing
and expanding the protections of the
1866 Act,” which, remember, talked about like punishments. And so, I think that’s a very
important thing to remember, of how we got the
14th Amendment. The 14th Amendment–
everybody knows about Brown v.
Board of Education– we’ve seen the implementation
of the 14th Amendment in the context of
public education, but we really have not
seen the application of the 14th Amendment in the
context of punishment, which was one of the specific
purposes that the drafters of the 14th
Amendment had in mind following the Civil
Rights Act of 1866. The 14th Amendment
was ratified in 1868. I looked back at some newspaper
articles– there was actually an open letter that was written
by– they described themselves as colored citizens
of Charleston, South Carolina, making an
appeal to their fellow citizens. And they described the
Black Code as a disgrace to civilization
and noted that, it “imposed penalties on us which
were not imposed on white men.” In The New York
Times, they talked about Georgia’s old slave code. And they said that
Black Codes were enacted “as cruel, as unjust,
and in all respects as infamous as those
which disgraced the days before the war.” So, thinking about that idea
of equalizing punishments, the Supreme Court again
weighed in in 1883 in a case called the
United States v. Harris, and said that Congress
has, by virtue of this amendment,
enacted “that all persons within the jurisdiction
of the United States shall have the same right
in every state and territory to make and enforce contracts.” That was another aspect of
the Civil Rights Act of 1866, “and shall be subject
to like punishment.” So again, the Supreme Court,–
well before McCleskey, which is the case we’ll
talk about in a second, which is part of the modern
challenge to the death penalty, in which the Supreme Court
rejected the use of statistical evidence that was put together
by David Baldus and others to show the racial
discrimination that was existing in Georgia’s
death penalty– the Supreme Court rejected
that and said that the person putting it forward had to show
discrimination in that case. In his case, he had to show
the purposeful discrimination. If you look back
at lynchings– we have a whole history of
lynchings– in particular, lynching in situations
where African American men were accused of sexually
assaulting white women. Thousands of lynchings
that took place in the South, Equal
Justice Initiative just did a big
report on this topic, documenting literally
thousands of what were called racial
terror lynchings that took place in Southern states. I once did a book
on a lynching that took place in
Duluth, Minnesota– it wasn’t limited to the
South– but discovered there that people actually used
to send postcards out. They’d pose in front of the
body of the lynching victims and distribute those. The last public execution
was in Owensboro, Kentucky, and 10,000 to 20,000
people gathered to watch a young
African-American man be hung for killing a
70-year-old white woman. And Michael Meltsner did a nice
job talking about the NAACP’s challenge, and a lot of this
was focused on the issue of rape and the death penalty. And actually, one of the
things that people forget is, actually, the
anti-lynching movement developed, also, as
part of the NAACP. When I was researching this
lynching that took place in Duluth in 1920,
I found that they were soliciting $1 contributions
from various people to fund this movement,
which I found quite touching to see this list
of different people doing that. But the challenges
to the death penalty really start right in the 1960s. Actually, Justice
Arthur Goldberg tried to convince his
colleagues in 1963 to basically declare the death
penalty unconstitutional. He was unsuccessful, but
there was a case in 1963 called Rudolph v. Alabama,
where he raised questions about whether or not the
death penalty should be applied to those who had not
killed anybody, but had raped. And race was an issue
that really [? suffices ?] that entire context. And so, of course, in Coker v.
Georgia, another Georgia case, the Supreme Court later
said that non-homicidal rape could not be punished by death. One of the things that I
think is most troubling is the way that
the Supreme Court reads the Cruel and
Unusual Punishments Clause and evolving
standards of decency. They take into account
legislation and jury verdicts, but yet, they allow
death qualification of the juries, which results
in a large number of African Americans being excluded. You end up with,
often, all-white juries or near all-white juries. And then that is the data
that the Supreme Court is considering when
they’re determining the constitutionality
of the death penalty. And the Baldus study, of
course, as we all know, found a lot of
racial discrimination based on the race of
the victim and just huge disparities in treatment. So I think, one of the
things that, in McCleskey, and in Furman, we have
a couple of cases. We have Furman, that a
lot of the judges that had concurring opinions
and that 5-4 decision, talked about the
racial discrimination present in the system. In McCleskey, Justice
Powell– and it was a 5-4 decision– wrote
the majority opinion, but then later after he
retired, said he regretted his decision in that case. In fact, in all
death penalty cases he would have voted differently. The project I’m
working on right now is actually thinking about
the death penalty as torture. Because right now,
under international law, it’s very clear
that mock executions are a classic example of
psychological torture. And the Supreme Court’s lethal
injection jurisprudence, unfortunately, has focused only
on whether, at the very moment of death, there will be
excruciating physical pain associated with the execution. And if a fake
execution is already considered to be
psychological torture, one has to ask whether or
not a real one would also qualify as such. And the severity
of the punishment is something we need
to be thinking about as we think about
the death penalty, because as you find
lethal injection– the masking that
was talked about earlier, of the violence that’s
associated with that– you think about that. And under international
law, torture is already considered
to be what’s called a jus cogens norm. It’s an absolute prohibition. You can’t torture
anybody during time of war or public emergency. And if we think back to the
idea of universal rights, if torture is a universal
right, if we allow everybody to not be tortured except those
who have done terrible things, then we truly don’t
have universal rights. If you have universal
rights and the rights to nondiscrimination, the right
to human dignity, the right to be free from
cruelty and torture, these are all universal rights. And if we don’t protect
them in all cases, then we don’t have
universal rights, and that was the whole idea
of the Universal Declaration. So, I know we’ve got some
great panelists up here, but that gives you a
little bit of a sense the history of how we got
to where we are today. [APPLAUSE] MICHAEL RADELET: My
name is Mike Radelet. I’m from the
University of Colorado. It’s always great
to be at Harvard. I went to Purdue. And it’s a public school,
and our most famous alumnus is Orville Redenbacher. I highly recommend his popcorn
if you’d like to try some. But when you come to Harvard,
it’s just the who’s who of everybody. I’m looking forward to meeting
Elle Woods later on today. I want to introduce
a couple of people. One thing in the book,
in the acknowledgments, Jordan and Carol
say three scholars who are no longer with us
were especially influential in development of this
book, and then they first name Hugo Adam Bedau. And Hugo’s wife,
Constance Putnam, is here. Raise your hand, Constance. [APPLAUSE] What they say about Hugo is
that he put the death penalty on the map as the
subject of serious scholarly investigation. And that’s true. He died five years ago after
a career mostly at Tufts, doing all sorts of death
penalty scholarship. One of his first, earliest works
was with Sarah Ehrman in 1962. She wrote an essay called
“For Whom the Chair Waits” in Federal Probation, about
erroneous convictions, and Hugo assisted Sarah. Sarah’s husband,
Herbert Ehrman, was one of the counsel for
Sacco and Vanzetti. I don’t know. Charles said most people haven’t
heard of the Scottsboro Boys. Maybe they haven’t heard
of Sacco and Vanzetti. But in any event, this has
ties way back to the 1920s. So, Hugo began that, and
then throughout his career published a number of
different essays and books on erroneous convictions. And in 1992, Constance
and Hugo and I were able to collaborate
on a book called In Spite of Innocence. So Constance has been a good
friend for many, many years and an ardent abolitionist. My wife, Lisa, is also here. We met when she was at
the Texas Resource Center. I went in and I always have a
red pen, and it always bleeds. So, it was like, all over. it just, like,
knocked her socks out. I mean, she was really– anyhow,
we talked about this chainsaw massacre guy case
she was working on, and I told her that I had Ted
Bundy’s ashes in my closet, so it was love– immediate love. [LAUGHTER] Glenn Pierce is here
from Northeastern. Glen and I have collaborated
on, I don’t know, 20 or 30 different papers on
race and death sentencing. The most recent we finished last
week on a study in Oklahoma. And our friend, Jackie, is
here from Gainesville, Florida. Jackie has been a really
close friend and supporter for 30 years. Her husband, Alan
Agresti, I met in 1979. And every paper that I’ve
published that uses numbers, I’ve consulted with Alan. He’s now retired as a
statistician from UF, but hired here at Harvard
to teach an adjunct course. He’s really world
renowned and has used a number of our examples
on race and death sentencing in his statistics
books, and therefore, has been the only
statistician criticized for writing statistics
books with a liberal bias. So, who would have thought? I want to go through– since
Glenn and I are the only two empirically based
social scientists in the room– I want to just
talk a little bit about facts and figures. We know that in the years
before the Furman decision, there were only 30 cases
in the United States where a white person was
executed for killing a black. There’s never been a white
person executed for the rape of a woman of color. At the time of Furman, we
know the statistics well. Between 1930 and 1967,
there were 3,859 people executed in the United States. 54% were African American. The racial disparity,
especially evident for rape, 405 out of 455 were
black men, 90%. If we look only at
executions for homicide, 51% of those executed
between 1930 and 1967 were African American. And then, if we look at the
Legal Defense Fund’s most recent data on who’s on death
row in the United States, we find that that
relevant proportion has changed very, very little. As of July 1, 2016, they
report that among the 2,900 people on death row in the
United States, 42% are white, 57% are minority. The one thing that
has changed is now minority is not only black. It’s black, Asian,
Hispanic, Native American. But the relevant
minority population, 51% pre-Furman of those
executed for murder, we can compare that today. 57% of those on death
row are people of color. So the racial disparity,
at least at that first cut, seems to have been increased
rather than decreased. Of course, the big problem
is executions along the lines of race of defendant. The Department of
Justice recently came out with 29 years of
data on homicide victims. They report that
50% of the victims of homicide in the United
States are white, 47% black. So basically, it’s
split down the middle. But when we look
at the executions– this is the execution
list from 2016– there have been 18
executions so far this year. Georgia leads the way. I think because Steve Wright
announced his retirement, they’re kind of gearing things
up there, just what he needs. Georgia and Texas. But if you look at
the race a victim of those 18 cases– white,
white, white, white, white, white, white, white, white,
white, white, Latino, white, white, white, white, white. All white, one Latino. So, even though blacks
are 47% of the homicide victims in the United States,
we’re getting these patterns. What’s the probability if you
have a bucket of marbles, half black, half are white, picking
out 18 white ones in a row. The statistical
probability is zilch. So, that’s basically the
problem that those of us who do empirically based race
research have been looking at. We try to cut the pie where
we take out felony homicides, where we only take out
homicides between strangers, or where we only take
out multiple murders, and no matter how
they cut the deck, that racial disparity
does not disappear. Glenn and I have
also gone back– and a lot more
work on this needs to be done– to look at
racial differences in case construction. We talk about how the death
penalty is supposed to help families of homicide victims. In 1960 in the United States,
94% of homicides were solved. In 1976, at the
time of Gregg, it was 76% of all
homicides were solved. It’s now gone down to 62%. So, basically four out of 10
murders in the United States, they never arrest the culprit. And these
disproportionately, as I say, the homicides disproportionately
affect African Americans. So, Glenn and I
looked at a data set. We looked at 164,000 homicides
in the United States, and found that, of all
those homicides, about 3/4 of the cases with white
defendants were solved, resulted in an arrest. Only about 60% of those
with black victims resulted in the arrest. So the police
investigation, from day one, tends to be more
vigorous and they’re more likely to arrest
a suspect when there’s a white person murdered
than when there’s a black person murdered. And then a few years
ago, we hired a guy to look at police records in
Shreveport, Louisiana, which is a fun area to study. And this guy went in
and he pulled data. He pulled all of
the police files– 430 cases in
Shreveport, and we just had him count the
pages in the files. And sure enough, when a
white person was murdered, the files were pretty
thick, especially if it’s a white woman. And when a black
person was murdered, those files were thin. So, a direct correlation
between the number of pages in the
prosecutor’s file, which we use as a proxy for
prosecutorial effort put into the case. I think that one of the
invitations that these race issues extend to us is
to expand on the falling support for the death
penalty in generally. How can we use the race
argument to continue that erosion of public support? Many of you know
that the Pew Research Center came out with a study
last month or September. Support for the death
penalty the lowest in more than four decades. This was just a survey
that did death and life, it didn’t say life
without parole. But we know that public
support is dropping, and we know that it’s largely
because of the innocence card. And the innocence card, I
think, has direct effects. There’s a group,
now, in California– doing a lot of
work in California, they’re headquartered in
Philadelphia– called Witness to Innocence, which is a group
of about 40 of the 156 people who have been on death
row and been exonerated. And when you meet an exoneree
like this, you hear their story or even see it on film–
there’s a film about this that was at the Fort Lauderdale
film festival last week, and next week will be at
the Santa Fe film festival, was coming out where
these exonerations tell their stories– direct
effect, you hear the story, support for the
death penalty drops. It requires a rebalancing. One of the critics of
the innocence research has always been,
well every once in a while an innocent person
gets it, but on the whole, there’s a net benefit. Everything we do,
innocent people die. You know, we drive a
car, innocent people. But there’s a net benefit,
and the net benefit of the death penalty
is supposed to be supposed to be in deterrence. But obviously, I
think that if you’re doing a fair
analysis of the death penalty, racial
disparities plus innocence, are arguments against
the death penalty that even the most ardent
supporter of the death penalty needs to come to grips with. So the innocence
issue has really forced this rebalancing of pro
or con on the death penalty. And the final
effect is indirect. Do we really get the
worst of the worst? George is going to have another
execution the first week of December, domestic homicide. A guy who was executed
Wednesday night in Georgia, domestic homicide. One victim case– are they
really the worst of the worst? I mean, that’s a question that
racial disparities raises. We’re not getting the
worst of the worst because it’s infected
by racial disparities. I want to tell a
story of one case that– several times
today we’ve already been talking about
how, specifically, race has not been an issue
raised by the Supreme Court. In Furman decision and
the Gregg decision, Maxwell v. Bishop, Coker
v. Georgia, you know, they never talk
exactly about race. I just want to tell
one little story. Stephen Bright knows this story. This is a case that I testified
in in Bartow, Florida. When you go to Florida
you don’t go to Bartow, but it’s down near Lakeland. It’s not the hotbed
of Florida tourism. And I was asked to testify at
the penalty phase of a retrial for a guy named
Tony Peek in 1984. Students will love it. This is the way that we
used to do computer stuff. Man, these Chi
squares, boy, whew! They are really neat. But in any event, I did a
little thing on race and death sentencing in Florida. Went down to testify
at this case. Here’s the bill. I billed $500, big
bucks at the time. So, I went down for
the penalty phase and watched as a new judge
walks in and introduces himself to the jury, saying that
judge schmuck was gone, he’s going to take
over the penalty phase. And it turns out the
reason that schmuck was gone is because he had
described the family of Mr. Peek by the n-word, and
the defense attorney asked that that judge recuse
himself, which he did. And then the new judge came in
and sentenced Mr. Peek to death for the second time. So, it goes up to the
Florida Supreme Court. They throw out that
second death sentence. But I just want to read to you
at the end of their decision, after they threw out the
conviction and death sentence, they say, “Although we
find the collateral crime evidence was
prejudicial in this case and should have
been excluded, we reject appellant’s
contention that absent this evidence,
insufficient evidence exists to sustain the conviction. We need not discuss
the other issues raised by the appellant with
the exception of one matter.” This is the last
paragraph of the decision. “For future guidance
of the bench, we believe that we should
address the circumstances requiring the original
trial judge in the case to disqualify himself after
the completion of the guilt phase of the trial. That his disqualification
resulted from comments made by the trial
judge immediately after the appellant
was convicted, and as the trial
judge and attorneys were discussing procedure
for the penalty phase. The defense attorney stated
the trial judge commented, quote, “Since the n-word
mom and dad are here anyway, why don’t we go ahead and
do the penalty phase today instead of having to
subpoena them back at a cost to the state.” I mean, forget the
today reference. Things have changed in Florida. Usually, now you leave to
get a few days, but anyhow. “Another person heard
the comment as, quote ‘Since the n-words are here,
maybe we can go ahead with the sentencing phase.’ As
a result of these comments, the defendant moved to
disqualify the trial judge. The trial judge
disqualified himself.” Blah, blah, blah. Then one more paragraph. This is the final paragraph
of the decision Peek v. State, 480 So. 2d 52. The Florida Supreme Court
writes, “Trial judges must not only be impartial
in their own minds but also must convey the
image of impartiality to the parties and the public. Judges must make sure
that their comments, both on and off the bench,
are proper, and do not convey an image of impartiality
to any person or any segment of the community. This type of conduct is
required of our judiciary because”– and then they
quote another case– “every litigant is entitled to
nothing but the cold neutrality of an impartial judge.” Blah, blah, blah. “We write about the
incident to emphasize the need for all
judges to be constantly vigilant about their
comments and demeanor, both inside and
outside the courtroom, to assure the impartiality
of the judiciary may not be reasonably
questioned.” That’s it, as long as
you don’t use the n-word. And the culmination of that case
came a couple of years later. Here’s the Tampa Times/Tribune–
“Convicted rapist exonerated of 1977 rape.” It came back, and he was
acquitted at his retrial. So race and innocence
that intersection, I know of no better case
it illustrates it. So, I just want to say
one thing in conclusion about our collective depression. I remember Bob
Sullivan was executed in Florida November 30, 1983. He was the first
death row inmate who I had gotten to know. And, we were outside the
prison during the execution. This is what, 30– I don’t know,
I go to a public school– 34 years ago, something like that? I don’t know. And somebody came up. I don’t know who it was
standing next to me, but the reporter came up and
said to the person standing next to me, what are you doing
standing out in the field, protesting this execution? Do you think you’re going
to change the world? And this person
said, no, we don’t do this to change the world. We do this so that the
world doesn’t change us. Great line. Thank you. [APPLAUSE] CHRISTINA SWARNS: OK. Thank you. So I also want to join
my fellow panelists in thanking Jordan and Carol
for inviting me to speak today. It’s a privilege to
be here and share the stage with these extremely,
extremely smart folks. So, I want to talk a little bit
about contemporary litigation of capital cases. And what we do
with race, and how race and this history
of racial discrimination in the administration
of the death penalty continues to play
out in these cases. When we talk about race
and the death penalty, you hear about the
lynchings, and you hear about the
amazing information that we heard from this
morning about the connection to the slave codes and slavery. And we’re invited,
as litigators, to put together a case to
challenge racial discrimination in the administration
of the death penalty, to look at what’s
happening right now, and get the statistics
about comparisons and who the pool of
possible people that might have been charged
who are beside your client at this moment. And it invites the idea that
all that happened in the past really doesn’t play
into the cases today. But my work really suggests
something otherwise. And I think that that’s what
I want to talk about today. I’m going to talk about
one case, or at least one place where
we are litigating a case, to demonstrate
how the history of racial discrimination
in this country continues to play a very
real and corrupting role in the structures through which
capital cases are litigated. And so, that is the formula for
what I’m going to talk about. So, the idea, of course, is
that the past is never dead. It’s not even past, right? That’s William Faulkner. And this conversation,
it is the original sin. It’s the original stain of race
in this country which we cannot get past, and certainly
we cannot get past it in the context of capital cases. LDF has been litigating
a capital case in Pine Bluff, Arkansas, forever. I won’t tell you
much about the case. It doesn’t matter, other than
it’s an African-American client convicted of killing a
white guy in an ATM robbery in Pine Bluff, Arkansas. So, Pine Bluff is about 40
minutes outside of Little Rock, and you can see these are
some of the statistics about the place. It’s a county which is
predominantly white, but the city is predominantly
African American. That is a photo of the Jefferson
County Courthouse, which will become relevant
as I go along and tell the story of
this particular place. So, Pine Bluff and Jefferson
County has, like many places in the South, a significant
history of racial terror. When we go into
these cases at LDF, we sort of meet with
folks in the community and learn, not just
about the case at hand, but about the history of
the jurisdiction in which we are litigating, because we think
an understanding of where we are litigating is imperative
to understanding how our cases will be
perceived and were perceived at the time of trial. And so, as we sort of dug into
the history of Pine Bluff, we came up with this
tidbit of information. So, I’m not going to tell the
story in the order in which we learned it. I’m going to tell
it chronologically, and then maybe I’ll explain
how it all comes together. I think it will become clear. So, Eric Foner is one of the
country’s foremost historians. I gather I don’t have to
tell people here who he is. And he has this book
on Reconstruction, and he finds in his
research that, in 1866 after some kind of
dispute with freedmen, a group near Pine
Bluff, Arkansas, set fire to a black settlement
and rounded up the inhabitants. A man who visited the
scene the following morning “found a site that appalled me. 24 men, women, and children
were hanging to trees all around the cabins.” So, this is where our story
of Pine Bluff begins, right? 24 men, women, and children
went in the trees in one night in Pine Bluff. That sort of was
bone chilling for me. Makes the hairs on
my arms stand up. And you think, like,
what kind of place, what happens to a place
where 24 people go get lynched in one night? So, we learned. So we learned that,
of course, that was the beginning of the story
of lynchings in Jefferson County, in Pine Bluff,
and any historian that has looked into the
research around lynchings will tell you that
this is what we found. This is undoubtedly an
inadequate and incomplete picture, because the
reports of lynchings are inadequate all the time. But this is what we found. So there’s about eight of them
aside from the 24 that follow, and the two in the
middle that are bolded are not just the same year,
but the same night in 1862. And in 1909, we
have another time. See, it’s not even on the list. I think– no, there’s
another one– yes, in 1909, this is The New
York Times headline. “While the dusky
murderers are swung up to the cross arm
of a telegraph pole in the glare of the
electric lights, a strange scene for people
returning from church.” Again, this is Pine Bluff. The two who go up, who
are lynched in 1892, are lynched in front of the
Jefferson County Courthouse on a light pole. And this figures prominently
into the narrative that we learn in this community. So, this is deeply
embedded in the history. But again, right, you
think to yourself, well, this is a really
long, long, long time ago. So when you look at the
way-back history you find out, not surprisingly, given
all of this history, people are fleeing. Right? Black people are trying
to get the heck out of Pine Bluff,
Arkansas, because it is obviously not a safe place. And so, we found
articles documenting what you would expect,
what I would have done, what anybody with
means and capacity that was living in
that place at that time would have hightailed
it out of the area. Indeed, we find that history. Life went on, and there’s still,
as you saw from the stats, a lot of African Americans
stayed in the area. And so, Jim Crow happened. The Civil Rights
Movement may or may not have happened in Pine
Bluff, but things went on. But the Pine Bluff that
you would learn today is deeply segregated. There is significant
unemployment and underemployment of the
African-American community. There is lots of problems in
the educational system, all of the things that
are a byproduct of racial discrimination. I’m not going to
run through it all. Although I should
say, so this is the map of Arkansas’ lynchings. Note Jefferson County has
had eight lynchings, which is not right because it doesn’t
include the original 24, but it puts Jefferson
County way off on the top 10 of lynching
counties in Arkansas. We are in a bad, bad place. So, we fast forward in
the life of Pine Bluff. And so, it’s not just
lynchings that happened, right? All sorts of racial
discrimination occur in this place. And so, LDF comes in in the
late ’80s and early ’90s. We’re doing some voting
rights work in Arkansas. And what we do– and we
still do to this day– is we bring voting
rights challenges against a sort of
at-large voting structures which preclude the black
community from electing candidates of choice. And so, Hunt v. Arkansas
is one of these cases where we challenge the
state’s at-large voting structure for
judges, saying that, obviously, because
African Americans were a minority in the
community, they were pretty much
precluded from having any African-American judges. This was a successful lawsuit. So we challenge it. They have this at-large system. We bring the lawsuit, and
a district voting system is ordered by the courts. And so, African Americans
are able to elect the candidates of their choice. Now, let’s bring
Hunt v. Arkansas, which is a great win, we
thought, to Pine Bluff, and this is what
they created there. So, they did, in
fact, create a seat for an African-American
judge in Pine Bluff, in Jefferson County. So there was none at that
time, and so, then they created a seat for an
African-American judge. So this is a little
bit backwards. So that black judge– so if
you read the chart backwards– that black judge then
staffed his courtroom with largely a black court staff. And in the time of our
case, which was 1993, the court staff was largely
responsible for pulling in the jurors. So the black court staff
in the black judge’s room would bring in and make
sure to include black jurors in the process and would be for
consideration in capital cases. And then there was the white
judge, and the white judges, I should say. And the white
judges all also had completely white court staffs. And so, the white
courtrooms pretty much had black people excluded
from the jury system. We had a statistician come in,
and there’s actually sworn– and here’s the shocking
part– without any objection or contradiction
testimony to all of this. Let me just be clear. We presented this, and
without a blink of an eye, everybody just said, oh yes, OK. So, we have what I like
to call the black court and the white court. In addition to the black
court and white court, they had to have public
defenders, right? They previously had
just solo practitioners, but then they decided
that they were going to have appointed counsel
serve as the public defenders, and they had two firms. One was all white,
and one was all black, and they served as conflict
counsel to each other. And then they
staffed, of course, the white public defender
to the white judge, and the black public defender
fed to the black judge. And so, your client, if you
had an African-American client, would really prefer
to go to black court, because they had a far
better chance of success than going to a white court. I could regale you
about the differences between these two
public defenders, but I don’t have the time. OK, so that is literally how the
system of justice in Pine Bluff worked in 1993, thanks to
LDF’s fine work with that Hunt v. Arkansas lawsuit. OK. But that wasn’t enough. So capital cases go
through this process, and in the course
of jury selection, which as we know is
critically important, we wanted to figure
out how that happened. So we interviewed
a gentleman who was the first African-American
prosecutor in Jefferson County and others who offered
sworn, unopposed testimony on this basis. And we said, talk to
us about jury selection in Pine Bluff in 1993. And this is what
he testified, this is from the perspective
of the Jefferson County prosecuting attorney’s office. Quote, “Your perfect
juror was a black person who was over 60, lived
in a segregated society. The prosecutors thought
they were predictable. They were used to taking
orders from white people, or at least not standing
up to white people. And if you had a jury with
11 whites and one black, and an elderly black,
the prosecutors believed that one
black person was not going to buck those
11 white people, and that was pretty much true.” We went on and said,
so how would they know? How could you
possibly figure out who this particular
black person was? And he testified,
“The prosecutors knew them from the community. They worked at the country club. They where someone’s maid. They lived on
somebody’s plantation. They pretty much knew
what they were getting.” And so we went on, and
the questioning goes on, and we said, how does
this work, right? Why would anybody feel
like they have to do this? And he testified, quote, “Black
jurors had a fear of serving. They had a fear of if
you made a decision that displeased the white
community or the white power structure, that some
type of retribution–” I just want to just reiterate. We are talking about 1993. This is 1990. This is the year I
graduated from law school. This is relatively
contemporaneous for capital cases, certainly for those
of us that do appeals and post-conviction work. And then he went on on this
point, which was astonishing. Black people had
a fear of serving. And then he said, “Well,
they were black people who– you know, again, remember
coming out of segregation, you know, you had
laws on the books that said a black person
couldn’t serve on a jury, couldn’t testify
in court, depending on how far back you want to go. There was no history in this
county, in most counties, of black people having
served as jurors. In general– and I’m going
back now to the Seventies– the courthouse was a bad
place for a black man to be. So people didn’t want to come
to the courthouse, didn’t want any contact with law enforcement
officers, fearful of, you know, prosecutors.” We ultimately had
multiple people testify to this
phenomenon about people in Pine Bluff,
African Americans, being afraid to come
into the courthouse. And we said, was it just as a
witness, just as a defendant? No. To serve, to get a
marriage license, to get whatever it took
to register a deed. No one was trying to walk into
the door of the Pine Bluff courthouse. So what did this
turn out to mean? So, we have this crazy,
segregated system. And we have this jury
selection process. So, for our case that meant
that two co-defendants, one went to the black public
defender, one went to the white
public defender. The shooter goes through black
court and gets life without. And our non-shooter
goes to white court, for want of a better
phrase, and gets death. So, the Supreme
Court will tell us that this long ago history
about the lynchings in front of the Pine
Bluff courthouse, where now, people say, it’s not
a safe place for a black man to be, maybe that’s
not contemporaneous. McCluskey, the
Supreme Court says, “Unless historical
evidence is reasonably contemporaneous with
a challenged decision, it has little probative value.” That’s the current law. “Although the history of racial
discrimination in this country is undeniable, we cannot accept
official actions taken long ago as evidence of current intent.” This story, and I don’t
think this is novel, really takes issue
with that assumption, that the long-ago
history no longer is playing in today’s
functioning of certainly capital punishment. But not just capital punishment,
because this, of course, comes up significantly
in the Voting Rights Act litigation that
has been going on and is going to go on some more. In the Shelby County
case, Justice Roberts wrote– this is 2013. When striking down a critical
piece of the Voting Rights Act, he says, “History
did not end in 1965.” He’s saying whatever happened
over there is over there. “By the time the Voting Rights
Act was reauthorized in 2006, there had been 40
more years of it. And yet, the coverage formula
that Congress reauthorized in 2006 ignores
those developments, keeping the focus on
decades-old problems rather than current data
reflecting current needs. He says, What happened
along– its McCluskey again– what happened back in the
day, happened back in the day, and that has nothing to do
with what we’re doing now, which I think is false, and
certainly in the context of the death penalty. Justice Ginsburg, as
she does, of course, comes with a different
perspective on this issue in the Voting Rights case. And she says, “Voting
discrimination has evolved into subtler
second-generation barriers,” and “consideration of the
long history of voting discrimination, still
in living memory, was altogether appropriate”
by the district court that considered it. The court criticizes
Congress for failing to recognize that ‘history
did not end in 1965.” But the court ignores that ‘what
is past is prologue.’ And those who cannot remember the past
are condemned to repeat it.” And I think that’s as true
in the voting rights context as it is in the capital
punishment context. And I will end on that note. Thank you. [APPLAUSE] STEVE BRIGHT: Good
day, everyone. I’m Steve Bright. I’m not retired. I’m not planning to retire. I will never retire. Don’t believe it when my
Mike Radelet says I retired. And he’s from Purdue. I’m from Kentucky. Our famous leading citizen’s
Colonel Harlan Sanders, so before you eat
your popcorn, you can get a little fried chicken. I want to talk a
little more generally, just to pull together
some of the things we’ve talked about here. The one thing I think is
very important to understand is that, of all the institutions
in the United States, the criminal courts
are the institutions that have been least affected
by the Civil Rights Movement. When I travel around the South–
and I have for the last 35 years, litigating mostly
death penalty cases in Alabama, and Georgia,
Mississippi, Louisiana, those states– a lot
of things have changed. There are now people of
color in the legislatures, and on the school boards, and
in the county commissions, and the city councils. The person who was almost beaten
to death on the Edmund Pettus Bridge is now my
Congressman, John Lewis, and one of the more respected
members of Congress. A lot of things have changed. When I go to the courthouse,
nothing has changed. I might as well be
back in 1940 or 1950. The judge is white. The prosecutors are white. The court-appointed hacks–
lawyers– are white. And even in communities,
even in communities with very substantial
African-American populations or other minority populations,
you’ll look at the jury box, and every single person
on the jury will be white. And people in that community
will come into the courtroom– a community of 25%, 30%, 40%
black– and they’ll come in and they’ll sit in the gallery. And they’ll look up
and say, how can it be that a jury
from this community could not have any members
of our race on the jury? And I’ll get to
that in a moment. I think this mention
that John and others did of the history is so important,
because we want to pretend that that was then
and this is now, and somehow, there’s an iron
curtain between the Civil War and all the things that went on. But the role of the criminal
courts and racial oppression is constant. The reason the South, of
course, is the death belt, is because of slavery. Slaves were already imprisoned. You couldn’t imprison a
person who was a slave. So the only punishment that
really mattered and, of course, was a great deterrent–
because part of it was to punish that
person, and part it was to scare the rest of the
people– was the death penalty. So you could get a death penalty
for distributing leaflets in Louisiana. And, of course, as
has been talked about, different crimes
for black and white. And then after the
Civil War, to go to convict leasing, where so
many people– and we’re talking about what people
know and don’t know, and know the
Scottsboro case or not. I teach my class,
Convict Leasing, the fact that black
people would be arrested on any kind of
charge, loitering, whatever it might be,
not having papers, not being in the right place
at the right time, whatever it might be, and then leased
out to the turpentine camps, to the plantations,
to the railroads, to the coal mines around
Birmingham, Alabama. And, as David Oshinsky
said in his book, it was worse than slavery
because at least slaves, there was a property
interest in the slaves. But with leased convicts,
you could send them into the coal mines,
these primitive coal mines around Birmingham, and
when the coal mine collapsed, well you just call the
Sheriff at least some more. These were disposable people. You had no great need to
give them decent food, to give them medical care, to
treat them like human beings. Blackmon writes in his book
Slavery by Another Name, tells the story of convict
leasing in Alabama, that Alabama perpetuated slavery
all the way until World War II. Most people thought slavery
ended with the Emancipation Proclamation at least in the
occupied part of the United States. It didn’t end in Alabama
until World War II, and that was because of the
criminal justice system. And the same thing for Jim
Crow, for this racial caste system that was enforced
by the court system. And then, of course,
lynchings which took place and, of
course, were terrorism that took place in the country. Today we pass a terrorism
bill just like that. Back in those days, Richard
Russell, senator from Georgia, managed to keep Congress
from ever, ever to this day, there’s never been an
anti-lynching law passed by the Senate of
the United States, and that’s because
Richard Russell, using the same arguments
that are used today, States’ rights,
Federalism, comity. All these things. These are important things,
leave it to the states. Richard Russell would go
home to Winder, Georgia, and a couple of people
would be lynched there. And then he would come
back to Washington and say, don’t worry. We have it under control. This is just a
matter that the races can work out within the states. And then, of course, the legal
lynching, when lynching’s moved into the
courtroom, and we started having the perfunctory
death penalty trial, and the Scottsboro case being
a prominent example of that. The people in Scottsboro
saying, what in the hell are you complaining? These kids got
day-long trials before all white, all-male
juries, where the outcome was a
foregone conclusion, but we used to lynch them. We didn’t lynch them. There was actually
a case in Kentucky where they gave the
guy a one-hour trial and then hung him right
after the trial, right behind the courthouse. And The Courier-Journal,
their newspaper there, wrote an editorial that
said, well, it’s pretty bad and it’s pretty fast. But at least we
didn’t lynch him. So this notion that procedure,
that if we give people just a little bit of procedure. And you have the people saying,
let the law take its course, because everybody knew what
the law was going to be. These people were going to
get a perfunctory lawyer. They’re going to get
a perfunctory trial, and they were going to
get the death penalty, and then they were
going to get executed. And, of course,
back in those days they got executed
pretty quickly. Well, we go right on into
today, mass incarceration, where again, I go
to courts where it’s amazing how
they’ll put people on probation in felony cases. These cases don’t
plead down to a lesser. They let them have a
felony, because it’s going to disenfranchise them. You’re going to get out today. Don’t worry, plead guilty. You’ll get out today. You’ll never vote again,
but you’ll get out. And, we will impose
conditions you can’t meet and fines you
can’t pay, so we’ll revoke your probation
shortly and send you off to prison anyway. But for the time
being, we’ll at least make sure you never vote again. So, just that historical
backdrop, I think, brings us to where we
are today, in a system in which almost
all the decisions are made by white people. 95% of all the elected
prosecutors in the country are white. 78% of them are white men. My own experience,
I can tell you, that of those 78%, a very
substantial percentage are very mean white men. And these people make the
decisions that matter. This regulation of
death, this notion that we’re regulating
it, and now it’s all going to be
fair and all that, is all based about trials. It’s all about how
you try people. The two most important
decisions made in every death penalty case
is whether to seek the death penalty. There are many prosecutors who
never seek the death penalty, and there are many prosecutors,
like Johnny Holmes did in Houston, who
would seek the death penalty at every opportunity
to get the death penalty. And then the second
one is plea bargains, and 95% of all
death penalty cases are going to be
resolved right there by plea bargains and
the choice whether to go for the death penalty. And we all know that race is all
that matters in that decision. That when– I can think of
examples and examples out of my practice. When my client, William Anthony
Brooks, was accused of kidnap, raping, and murdering a white
woman in Columbus, Georgia. And everybody was out. Not only were all the
police department people out, not only where
the Boy Scouts out, everybody out
searching for evidence, searching for
whatever it could be. And then, of course,
from the start it was going to be a
death penalty case. It was presided over
by a judge whose father had been involved in
two prominent lynchings in that community. A all-white jury tries
the case, and it’s clear from the start it was,
let the law take its course. And, of course, they gave
him the death penalty. When we were litigating the
case later in post-conviction, and pointing out that all the
prosecutors, 10 out of 10, were white men, all racist–
we couldn’t prove that, really, but I knew it for
a fact– that were making the decisions about what
cases were death cases whatnot. But what we found was that
when a white person’s kid was killed, they’d bring them in. One fellow testified, I was
called in by the prosecutor, and he said, do you want the
death penalty for this guy who killed your daughter? And he said, yes, and
the prosecutor said, that’s all I need to know. That’s all I need to know. Now, then we went to people
in the black community, and far more in this
particular community– 70% of the victims of homicide
were African American– when we went to, those people,
they said, nobody even called. They didn’t tell us
about the plea bargain. And in fact, when I had the
prosecutor on the stand, I said, did you know about the
murder of John Brooks– that’s Williams’ father– who was
murdered in Columbus, shot dead in a robbery? Did you think about going for
the death penalty in that case. He didn’t even know
who John Brooks was. So there you see what’s
going on in terms of how race comes into
these places in a very realistic way for the few
cases that go to trial. As I said earlier, often
by all-white juries, and the reason for that
is because of the success of the prosecutors in
striking people of color from the juries. I want to just take the
last few minutes I have here and talk about this
case that I had. The Supreme Court, it
was decided last spring, Timothy Foster’s
case versus Chatman. This was a case– it was tried
the year after the Supreme Court had said in
Batson v. Kentucky, we’re going to stop this
racial discrimination in jury selection by saying that
any time a disparate number of people of ethnic group
or gender are struck, give reasons. And if the reasons are race
neutral, then on we go. Does anybody think that
would possibly work? Could you be any
stupider than to think that this is going to
work, that the judge is going to be able to divine
whether or not the people are telling the truth or not? Of course, the case
before that which deserves a quick honorable
mention, Swain v. Alabama. In 1965, Robert Swain
goes to the Supreme Court and said in the history of
Talladega County– Robert Swain, an African
American– there has never been a black
person on the jury. Now, Mike Radelet was talking
about pulling white balls out of– what’s the likelihood
that’s happened by chance? Of course the prosecutor
struck everybody, and the Supreme
Court said, well, that’s a peremptory strike. I mean that’s wonderful. You can strike on the
basis of race, religion, and your hunches,
all these things, unless you really just
do it case after case. That’s fine. Thurgood Marshall said, an open
invitation to discriminate. And then in Batson
they say, well, that probably wouldn’t
such a good idea. So now we’ll have people give
reasons for their strikes. And the lawyers
representing Timothy Foster, a couple of country lawyers
there in Rome, Georgia, but they least did this. They filed a motion,
and they said, the prosecutors in this county
always strike all the blacks. They always have in
every criminal case. Not just death cases, all
the cases, and they’re going to do it in our case. And judge, don’t let them do it. There was a case
decided last year by the Supreme Court,
Batson v. Kentucky, that says they can’t do it anymore. And it was very interesting
in the discussion, sort of the logistics of
getting ready for trial. There was never any
doubt that there was going to be a Batson hearing. Nobody suggested
that maybe there wouldn’t be any
discrimination so we wouldn’t have a hearing about Batson. At any rate, the
prosecutors then do, of course, strike all the
African Americans, four out of four, and then argue
in closing argument to the all-white jury, give
the death penalty to deter the people in the projects. Tim and his family
lived in the projects. 90% of the projects
were African American. And the prosecutors said this. When they were accused
of discrimination, they said, we demand an apology. Not just to apologize
to us, but to the court, to this entire community,
for accusing us of race discrimination. That probably was pretty
intimidating to those lawyers. Well, here was the file we
discovered many years later. This is the first of
many pages of the list of all the people summoned
for jury duty in this case. You can see the ones with
the arrows are highlighted in green, and there
was a key up there– you can’t quite see
at the top– that said that that meant black. But just in case
you are colorblind, beside each person’s name was
a b, so you knew the black– And this was circulated in the
entire prosecutor’s office, law enforcement, and so forth,
that a race-coded list would be circulated so you get
some reasons to strike these black people. Then the black
people are listed. These are the prosecutor’s
notes, which we got. I can’t go into how, but we did. I mean, open records
act, I don’t mean that. I just mean there’s not time. B1, Eddie Hood, first black. B2 was Ms. Wilson,
B3 Miss Hines. Then we found this
memo in there that went to all the black
jurors are pulled out apart from the white jurors. And they write, if it
comes down to having to pick one of the black
jurors, well, maybe Ms. Garrett would be all right. But Marilyn Garrett never
had a snowball’s chance of being on that
jury, because here’s their list of definite nos. And, of the six people who are
definite nos, definite strikes, the first five are
African American. And as you can see, Ms.
Garrett is number four there on their strike list. Ms. Garrett’s here
on their strike list. Ms. Garrett’s here. Marilyn Garrett was never
going to be on that jury. One of the reasons they gave
for striking her was she was so close in
age to Tim Foster. She was 36. He was 18. But that was only one of
12 reasons that were given. I’ve just got a couple
more quick thoughts. They struck one
juror, Eddie Hood, B1, because he was a member
of the Church of Christ, and they said people
that are Church of Christ are so adamantly opposed
to the death penalty. I’m thinking, what church in
the South has that attitude? So adamantly
opposed to the death penalty, that if you are a
member of the Church of Christ, you’re going to vote
against the death penalty. Right there in the
prosecutor’s own handwriting, “Church of Christ has no
position on the death penalty. Leaves it up to each
individual member.” And it’s noted down below
that it’s a black church. And I told you about
the closing argument. And finally, I’ll just say this
is what Marilyn Garrett said after the case was reversed. “They just kept asking me over
and over why I had two jobs. I was a single parent
trying to take care of my children, that’s why. It irritated me, got
me in a defensive mode, and they said I was indignant.” That’s it. “They treated me like
I was a criminal. They had me in tears. It was really humiliating.” This is how the black
juror was treated. I’m going to skip
Justice Sotomayor. And finally Eddie Hood
has the last word. “When I came home, I told
my wife more than likely they’re not going to want
too many of us on the jury.” This didn’t bother the
Georgia courts one iota. It didn’t bother them at all. Only by the very
serendipitous and lucky factor that the Supreme
Court for some reason granted certiorari
in this case, which was only sort of a one-off case
in terms of why it was granted. It was going to be
a great case today. It wasn’t going to
effect a lot of cases. It didn’t resolve a split in the
circuits or anything like that. If it hadn’t been
for that, the case would have gone into habeas
corpus, he would have lost, and Time would
have been executed. Only because the Supreme Court
took it, and only because, serendipitously, we
found this evidence through the Open Records Act. They meant to destroy it, I’m
sure, after the jury selection, but they just forgot. And oops, that’s what
happens when you forget. Just like in Philadelphia,
when they discovered a training tape in which they,
the year after Batson, told everybody to strike
on the basis of race. So race is the central
factor, as Carolyn and Jordan recognized in their book,
in the death penalty today. Thanks. [APPLAUSE] RANDALL KENNEDY: As was just
stated, in this wonderful book, the Steikers from first
to last do put race as a central element
in the story. And I would like to go to a
case that raises the race issue. It’s one of the few– one of
the more interesting chapters in the Steikers’ book
is chapter 3, called “The Invisibility of Race and
the Constitutional Revolution,” and they talk about the way
in which, in cases where race is all over the case, the
actual decision doesn’t talk about race very much at all. But there is one case in
which race is very central, and that’s McCleskey v. Kemp. And a closely
divided Supreme Court upheld a challenge to the
administration of the death penalty, despite statistical
evidence suggesting, strongly suggesting, that race
played a systematic role in the infliction of
capital punishment. And I wanted to
ask the panelists, and also the
Steikers ex-officio– they are always on the
panel– I have two questions about McCleskey v. Kemp. One is, Justice Marshall
was on the Supreme Court but did not write in the case. And I’ve always thought
it to be striking that in this case, the
one case that the Supreme Court, in a plenary way,
confronted the race question, Justice Marshall did not speak. And I’ve always
thought, does anybody know why that was the case? You know, why is it? Does anybody have speculation
of why it was that in that case, Justice Marshall
didn’t say anything? He voted. He was part of the four that
voted, but he didn’t write, and I’ve always thought
that’s a striking thing. Second, why is it
that there’s never been a case in which
a court has found a federal constitutional
violation in a challenge to a death penalty? None. It seems to me that is in
and of itself, a scandal. Given what we know about the
United States of America, I mean, is it plausible to
think that there’s never been a constitutional violation? Seems to me that
clearly so, but no court has ever found a constitutional
violation in a capital case. And I would broaden it. I know of no case
in which a court has found a federal constitutional
violation to take any penalty, and why is that? Now, the Steikers
give a suggestion. They speculate that maybe
difficulties of proof, in so far as these
cases are generally based on statistical evidence,
and that always poses a problem, because there
might be statistical evidence, but what about proof in
this individual case? So there’s a question of proof. Then there’s the
question, they suggest, of maybe anxiety over
remedy, because if you were to find a constitutional
violation in the capital area, well, what the heck? Beneath that, there’s a
whole lot of other areas. So, you know, what
do you do with this? You’d be opening
up Pandora’s box. And so, maybe, the court feels
that it, as an institution, just cannot wander
into this territory. So they offer a reason. How do people feel
about those reasons? Is there some other
thing going on? Any of that. Those are my two questions
to the panelists, and to the Steikers if
they want to jump in. JOHN BESSLER: Well, I do think
that in looking at the cases, Justice Marshall
obviously was one of the only people on the
court, I think the only person on the court, that had any
experience with actual capital cases. And he actually had made a lot
of statements about the death penalty previously. I mean, he had a long
opinion, a concurring opinion, in the Furman case. And then when the court changed
its position in the Gregg case, he famously has this idea
of the Marshall hypothesis, that if the public was
just better educated about the death penalty, that
there’d be no support for it. If people were educated
citizens about everything that’s going on, everything that would
be talked about here today, with race and the death penalty,
it’s just one aspect of that. So I know Brennan and Marshall
famously dissented in, I think, over 2,500 cases or
something like that, just relentless dissent
against the death penalty. And we now have a
couple of justices who are getting close to that,
Justice Ginsburg and Justice Breyer, but I think [INAUDIBLE]
position wasn’t the death penalty by then, at that point. CHRISTINA SWARNS: I would agree. I think we have enough Marshall
clerks in the room that might be able to offer
specific information on the answer to the question. In terms of why they
haven’t ruled on a case, I think they have
erected enormous barriers to bring a case, and that
can’t be understated, in terms of bringing
and marshaling evidence about intentional
discrimination, or systematic exclusion,
or the role of race in the administration of capital
punishment or any sentence. Armstrong and [? Bass ?]
create these rules that say, you can’t get access
to the evidence that you need in order to make
the case in the first place. You’re barred at
the first instance to get the evidence to
show selective prosecution or assert that kind of bias. And then you add it to what
I was just talking about. Then they say history,
which was also a part of the McCleskey
presentation of evidence– they didn’t just go with
statistics in McCleskey. They went with statistics plus
the history of discrimination in Georgia– and
then the court says, well no, that history wasn’t
it, wasn’t good enough because it’s too remote. So time and again, the court
sort of erects these barriers to creating, to
the presentation, and the development of a
case that it would even hear, to allow you to get
relief on those claims. So, I think we have
been like, literally, hamstrung in terms of
bringing these kinds of cases. And that’s why I think
when like Buck or Foster or the cases that
go to the court, it’s because
they’re so explicit. It’s because they’re
in neon lights. We are talking about
racism, and you don’t get to the other cases
like the one I talked about, or the Heartland case of capital
cases, where race is the story. But it is not written
down on a piece of paper. STEVE BRIGHT: And I
would just say this. The one thing I
would add to what John said about when Marshall
wrote his dissent of Furman, he was the one person
who laid out the race. He was the one who
pointed out that rapes in this country, that of
450 people since justices started keeping statistics in
1930, of 455 people executed for the crime of
rape, 405 were black. 405 out of 450, one of the
most damning statistics. Nobody else talks much
about race at all. And I think one of the great
defects of the ’76 decisions is you keep
thinking, if you just tinker with the
statutes a little bit, if you just do some
proceduralism here, there, and yon, you’re
going to fix this. The problem was
racism, and the problem was the pervasive racism in
the prosecutor’s offices, and the way juries were
selected, and all those things. That was the ballgame,
and yet it’s never even mentioned in those cases. And then it was alluded to
earlier when Coker comes down and the court says–
where the victim was not killed, in a rape case
where the victim was not killed– no death penalty. And you read that case
and nowhere in there is this 455, 405 statistic, nor
is there anything about race. If there was any
reason to strike down the death penalty
for rape, it was because of the
racial discrimination which had gone back throughout
the history of the country. And if you supplement that
with all the lynchings that took place,
for black men who looked the wrong way at a white
woman, right up to Emmett Till, it would be an
extraordinary figure. And yet we just never
talk about that. And then the second
thing on proceduralism and the other part of McCleskey,
where the court talks about that all the state has to do
is minimize the risk that race may have played a role. And so, if you have this
procedure and this procedure and this procedure and this
procedure, you’ve done enough. Notice you never
asked the question, did the procedures work? They don’t work. So you have Batson,
it doesn’t work. You have Turner v. Murray. You can voir dire the
jurors about do any of you ladies and gentlemen out there
have any racial prejudice? Raise your hand if you do. That’s supposed
to prevent jurors from being racially biased. Does anybody think that works? So we’re in this sort
of fictional Never Never Land and saying, we’re
not going to look and see, did it actually work? Was there race
involved in the case? We’re just going
to say you’ve done all you have to do
constitutionally, and that’s the use of
this procedural stuff to just completely
hide reality, I guess. Or I don’t know. It is to hide reality. And so somebody
[? read, ?] well, there was no discrimination
in this case, even though half the jurors
used the n-word and whatever. This was the [? Wally ?]
Dobbs case in Georgia. But the reason was not
because there wasn’t plenty of ample race discrimination. They called the defendant
a boy and by his first name and everybody else
by their last name. It was pretty rough stuff. But it was because
the state procedures were sufficient to
minimize the risk, even though they failed
miserably in that case to do it. CAROL STEIKER: Can I
just say– is this on? STEVE BRIGHT: It’s on. CAROL STEIKER: Just, in
my ex-officio capacity, just on the question
of Marshall. So, McCleskey was decided the
term before I clerked for him. I don’t have any insight
at all from the people who did clerk that year, but I
will say that around that era, Brennan and Marshall
were both in the dissent in a lot of important cases,
with the exception of Steve Bright’s first argument my term
in the court, in which Justice Marshall wrote the opinion for
a 9-0 court in Amadeo v. Zant. But I will say in this era, in
which Brennan and Marshall were in the dissent in a lot
of death penalty cases and other cases, Brennan– he
was a notorious dissent hog. In terms of who gets
to write dissents, the senior justice in
the dissent gets to. He was senior to Marshall,
and his chambers would take a lot of the good dissents. And if you read, Brennan wrote
a long and beautiful dissent in McCleskey,
especially, I think, saying what I think Marshall
would have wanted to say. He says, hey, let’s just take a
little tour of American history here, and do what we try
to do– in actually a much more cursory fashion in
our book than Brennan does in his dissent in McCleskey–
and talk about understanding racial disparities
in capital punishment in terms of the history
of statutes, black codes, lynching. And I just wonder what Marshall
could have added to that. It would have been a
little bit like Furman, where you read
their two opinions and they’re very similar,
with the exception of the Marshall hypothesis. But they both have these long
formulations of human dignity which are very similar
to one another. So that’s my little thought
about what happened there. JORDAN STEIKER: My
relation to the justice was as a colleague,
not as a clerk, and one thing I learned
from him was the intensity of his tactical thinking. His jokes were even tactical. If you just heard his joke
as something to laugh at, you were missing something. And so I suggest that having a
white man write that dissent– we don’t know the answer to
your question, but I think, if you want to speculate,
that’s a fair way to go. That he thought it would be more
powerful if Brennan wrote it than he did. And anyway, it’s a
marvelous dissent, so he may have been right. STEVE BRIGHT: That
makes sense to me, but I would point
out the other two justices, Blackmun and Stevens,
both wrote dissents, as well. So of the four, three dissented,
and Marshall was the only one who didn’t. RANDALL KENNEDY: We
have a little bit more. Others? Questions, comments, objections? Yes. AUDIENCE: One very brief point
about your point about no court ever having found a violation
of racial discrimination in prosecution. It’s worth noting,
given the apparent plans of the incoming
administration to nominate Jeff Sessions as
attorney general, that there actually was a
case where a court of appeals found sufficient evidence of
racially selective prosecution to remand the case. And it was a case in which he
was the United States Attorney. It’s a case called the United
States against Spiver Gordon from 1985, and so
it might be worth people taking a look at that. RANDALL KENNEDY: Others? Thank you very much. [APPLAUSE]


  • Stella Maris

    "Racial violence has been rationalized, legitimated, and channeled through our criminal justice system; it is expressed as police brutality, solitary confinement, and the discriminatory and arbitrary imposition of the death penalty."

    ― Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness

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