President Obama said he was deeply troubled by the application of the death penalty in the U.S. and said that he'd ask Attorney General Eric Holder to review the problems with it. The retort from some was that the death penalty is a state matter and there's absolutely nothing the White House can do about it and by inference there's no reason for him to stick the federal government's nose in it. It is a state matter. But it's also a federal matter. And there is much that Obama and Holder can and should do about that.
The reasons for that are easy to find. Since reinstatement of the federal death penalty in 1988, various U.S. attorneys general have sought the death penalty for more than 400 defendants. Nearly seventy-five percent of those defendants have been non-white. The overwhelming majority of them have been African-American (more than half). The standard pro-death penalty push back in these cases is that blacks supposedly commit more frequent and heinous crimes than whites and therefore deserve to get a death sentence.
This is nonsense. Death sentences are sought by local federal prosecutors and imposed by juries. And the prosecutors that seek them the most are concentrated in a relatively handful of districts. When prosecutors in those districts seek the death penalty in a case this automatically expands the jury pool from the residents within the county where the crime was committed to the residents of the considerably larger federal judicial district that encompasses it. This almost always insures that a capital case jury will be predominantly white and as countless studies on juror bias have shown, juries with few or no blacks are more prone to convict when the defendant is minority, and especially black, and impose the death penalty. The result is predictable. More than sixty percent of those on federal death row are non-white and in almost all cases their victims were white.
The grotesque racial misapplication of the death penalty was underscored more than a decade ago by none other than the Justice Department in its own assessment of the death penalty. It found that between 1995 and 2000, 80% of all cases in which a U.S. Attorney requested permission to seek the death penalty involved a minority group defendant; 72% of the cases where the Attorney General authorized a capital prosecution involved minority group defendants; and U.S. Attorneys sought death-authorization twice as often in cases involving black defendants and non-black victims as in cases involving black defendants and black victims. The gaping racial unfairness in the federal death penalty prompted a flurry of congressional bills at the time to either abolish or put a moratorium on the federal death penalty. They went nowhere.
Then Wisconsin Senator Russ Feingold kept the heat on for an end to the federal death penalty. In 2007, as chair of the Senate Judiciary Committee, Constitution Subcommittee, he held a hearing on oversight of the federal death penalty. He lambasted the Justice Department for the lack of transparency in the decision-making process about the death penalty and of course, the blatant racial disparities in which federal prosecutors are most likely to demand the death penalty and which defendants they chose to demand the death penalty for. A subsequent bill he introduced to ban the federal death penalty went nowhere.
The two disturbing reasons for that remain unchanged. One is publicly stated: fear of crime. Even though crime figures are way down, the fear of crime isn't. That fear is fueled by high-profile shooting rampages, a crime-gorged media that stuffs the public with mega-doses of crime and violence stories, politicians who pander to crime fears to get votes, and a Supreme Court that still flatly rejects any far reaching consideration of the death penalty.
The other far more frightening reason why the death penalty is still alive and well is privately whispered: race. The death penalty has always been America's ultimate legal weapon against black men accused of violent acts (mostly against whites). According to the NAACP Legal Defense Fund which has meticulously tracked the obscene racial disparity in the death penalty for decades, between 1930 and 1996, more than half of all those executed have been African-Americans. In the states, blacks are still far more likely to get the death penalty then a white when the victim is white. As the figures horridly show, the federal government has hardly been immune to imposing the death penalty on blacks when their victims are white.
The Justice Department study more than a decade ago called the federal death penalty hopelessly flawed and tainted with racial bias. It's worse than that. It's a terribly racially warped punishment reserved almost exclusively for blacks and Latinos.
By openly admitting that there are "problems" with the death penalty, Obama has opened up another dark corner of the criminal justice system that screams for reform. That reform is to get the federal government out of the death penalty business.
Earl Ofari Hutchinson is an author and political analyst. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is host of the weekly Hutchinson Report Newsmaker Hour heard weekly on the nationally network broadcast Hutchinson Newsmaker Network.
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