prof normax Ethnicity and Corrections Presentation

The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishments.” The determination of which punishments are cruel and unusual, and thus unconstitutional, has been left to the courts. According to the Supreme Court,

Punishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.10

Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.11

Although the Supreme Court consistently has stated that punishments of torture violate the Eighth Amendment, the Court has never ruled that the death penalty itself is a cruel and unusual punishment.

In 1972 the Supreme Court ruled in Furman v. Georgia that the death penalty, as it was being administered under then-existing statutes, was unconstitutional.12 The 5–4 decision, in which nine separate opinions were written, did not hold that the death penalty per se violated the Constitution’s ban on cruel and unusual punishment. Rather, the majority opinions focused on the procedures by which convicted defendants were selected for the death penalty. The justices ruled that because the statutes being challenged offered no guidance to juries charged with deciding whether to sentence convicted murderers or rapists to death, there was a substantial risk that the death penalty would be imposed in an arbitrary and discriminatory manner.

Although all of the majority justices were concerned about the arbitrary and capricious application of the death penalty, the nature of their concerns varied. Justices Brennan and Marshall wrote that the death penalty was inherently cruel and unusual punishment. Whereas Justice Brennan argued that the death penalty violated the concept of human dignity, Justice Marshall asserted that the death penalty served no legitimate penal purpose. These justices concluded that the death penalty would violate the Constitution under any circumstances.

The other three justices in the majority concluded that capital punishment as it was then being administered in the United States was unconstitutional. These justices asserted that the death penalty violated both the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s requirement of equal protection under the law. Justice Douglas stated that the procedures used in administering the death penalty were “pregnant with discrimination.” Justice Stewart focused on the fact that the death penalty was “so wantonly and so freakishly imposed.” Justice White found “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.”13

The central issue in the Furman case was the meaning of the Eighth Amendment’s prohibition of cruel and unusual punishment, but the issue of racial discrimination in the administration of the death penalty was raised by three of the five justices in the majority. Justices Douglas and Marshall cited evidence of discrimination against defendants who were poor, powerless, or African American. Marshall, for example, noted that giving juries “untrammeled discretion” to impose a sentence of death was “an open invitation to discrimination.”14 Justice Stewart, although asserting that “racial discrimination has not been proved,” stated that Douglas and Marshall “have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”15

The impact of the Furman decision was dramatic. The Court’s ruling “emptied death rows across the country” and “brought the process that fed them to a stop.”16 Many commentators argued that Furman reflected the Supreme Court’s deep-seated concerns about the fairness of the death penalty process; they predicted that the Court’s next step would be the abolition of capital punishment. The Court defied these predictions, deciding to regulate capital punishment rather than abolish it.

Also as a result of the Furman decision, the death penalty statutes in 39 states were invalidated. Most of these states responded to Furman by adopting new statutes designed to narrow discretion and thus avoid the problems of arbitrariness and discrimination identified by the justices in the majority. These statutes were of two types. Some required the judge or jury to impose the death penalty if a defendant was convicted of first-degree murder. Others permitted the judge or jury to impose the death penalty on defendants convicted of certain crimes, depending on the presence or absence of aggravating and mitigating circumstances. These “guided-discretion” statutes usually also required a bifurcated trial in which the jury first decided guilt or innocence and then decided whether to impose the death penalty. They also provided for automatic appellate review of all death sentences.

The Supreme Court ruled on the constitutionality of the new death penalty statutes in 1976. The Court held that the mandatory death penalty statutes enacted by North Carolina and Louisiana were unconstitutional,17 both because they provided no opportunity for consideration of mitigating circumstances and because the jury’s power to determine the degree of the crime (conviction for first-degree murder or for a lesser included offense) opened the door to the type of “arbitrary and wanton jury discretion”18 condemned in Furman. The justices stated that the central problem of the mandatory statutes was their treatment of all defendants “as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”19

In contrast, the Supreme Court ruled that the guided discretion death penalty statutes adopted by Georgia, Florida, and Texas did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment.20 In Gregg v. Georgia the Court held that Georgia’s statute—which required the jury to consider and weigh 10 specified aggravating circumstances (see Box 8.1), allowed the jury to consider mitigating circumstances, and provided for automatic appellate review—channeled the jury’s discretion and thereby reduced the likelihood that the jury would impose arbitrary or discriminatory sentences.21 According to the Court,

No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.22

Since 1976, the Supreme Court has handed down additional decisions on the constitutionality of the death penalty. With the exception of McCleskey v. Kemp, which we address later, these decisions do not focus on the question of racial discrimination in the application of the death penalty. The Court has ruled that the death penalty cannot be imposed on a defendant convicted of the raping of either an adult23 or a child,24 and that the death penalty can be imposed on an offender convicted of felony murder if the offender played a major role in the crime and displayed “reckless indifference to the value of human life.”25 In 2002 the Court ruled that the execution of someone who is mentally handicapped is cruel and unusual punishment in violation of the Eighth Amendment,26 and in 2005 the Court ruled 5–4 that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were younger than 18 when their crimes were committed.27 In 2008 the Court took up the issue of lethal injection, ruling that Kentucky’s three-drug protocol for administering lethal injection did not amount to cruel and unusual punishment under the Eighth Amendment.29 In recent years the Supreme Court has also overturned a number of death sentences due to ineffective assistance of counsel.30

Under Georgia law, if the jury finds at least one of the following aggravating circumstances it may, but need not, recommend death:28

1. The offense was committed by a person with a prior record of conviction for a capital felony or by a person who has a substantial history of serious assaultive criminal convictions.

2. The offense was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or burglary, or arson in the first degree.

3. The offender knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.

4. The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.

5. The murder of a judicial officer, former judicial officer, district attorney or solicitor, or former district attorney or solicitor during or because of the exercise of his official duty.

6. The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.

7. The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

8. The offense was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties.

9. The offense was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.

10. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement of himself or another.

In Gregg v. Georgia, the seven justices in the majority noted that both the public and state legislatures had endorsed the death penalty for murder. The Court stated that “it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.” Public opinion data indicates that the Court was correct in its assessment of the level of support for the death penalty. In 1976, the year that Gregg was decided, 66 percent of the respondents to a nationwide poll said that they favored the death penalty for persons convicted of murder.31 By 1997, three-fourths of those polled voiced support for the death penalty. Although the exoneration of death row inmates and subsequent decisions to impose a moratorium on executions (discussed later) led to a decline in support, in October 2009, 65 percent of Americans still reported that they favored the death penalty for people convicted of murder.32

The reliability of these figures has not gone unchallenged. In fact, Supreme Court Justices themselves have raised questions about the reliability and meaning of public opinion data derived from standard “do you favor or oppose?” polling questions. Justice Marshall observed in his concurring opinion in Furman that Americans were not fully informed about the ways in which the death penalty was used or about its potential for abuse. According to Marshall, the public did not realize that the death penalty was imposed in an arbitrary manner or that “the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society.”33 Marshall suggested that public opinion data demonstrating widespread support for the death penalty should therefore be given little weight in determining whether capital punishment is consistent with “evolving standards of decency.” In what has become known as the “Marshall Hypothesis,”34 he stated that “the average citizen” who knew “all the facts presently available regarding capital punishment would ... find it shocking to his conscience and sense of justice.”35

Researchers also have raised questions about the poll results,36 suggesting that support for the death penalty is not absolute but depends on such things as the circumstances of the case, the character of the defendant, or the alternative punishments that are available. William Bowers, for example, challenged the conclusion that “Americans solidly support the death penalty” and suggested that the poll results have been misinterpreted.37 He argued that instead of reflecting a “deep-seated or strongly held commitment to capital punishment,” expressed public support for the death penalty “is actually a reflection of the public’s desire for a genuinely harsh but meaningful punishment for convicted murderers.”38

In support of this proposition, Bowers presented evidence from surveys of citizens in a number of states and from interviews with capital jurors in three states. He found that support for the death penalty plummeted when respondents were given an alternative of life in prison without parole plus restitution to the victim’s family; moreover, a majority of the respondents in every state preferred this alternative to the death penalty. Bowers also found that about three-quarters of the respondents, and 80 percent of jurors in capital cases, agreed that “the death penalty is too arbitrary because some people are executed and others are sent to prison for the very same crimes.” Bowers concluded that the results of his study “could have the critical effect of changing the perspectives of legislators, judges, the media, and the public on how people think about capital punishment.”39

Consistent with Bowers’s results, recent public opinion polls reveal that most Americans believe that innocent people are sometimes convicted of murder. These polls also suggest that respondents’ beliefs about the likelihood of wrongful convictions affect their views of the death penalty. A National Omnibus Poll conducted by RT Strategies in 2007 for the Death Penalty Information Center found that 87 percent of the respondents believed that innocent people have been executed.40 Of those who stated that they believed this, 55 percent said that it had negatively affected their view of the death penalty. Respondents who favored the death penalty were given a list of factors and asked whether each one, if proven true, might lessen their support for the death penalty. As shown in Table 8.1, 27 percent of the respondents stated that knowing that innocent people had been executed would reduce their support for the death penalty. A similar percentage said that knowing the fact that the appeals process takes too long and that too few are executed would reduce their support. Twenty-two percent of the respondents stated that their level of support would be reduced by a finding that receiving the death penalty depended on race, social class, and geography or by information regarding the high cost of administering the death penalty. The results of the survey led the authors of the report to conclude that “the public is losing confidence in the death penalty” and that Americans “are deeply concerned about the risk of executing the innocent, about the fairness of the process, and about the inability of capital punishment to accomplish its basic purpose.”41

SOURCE: Adapted from Richard C. Dieter, A Crisis in Confidence: Americans’ Doubts About the Death Penalty (Washington, DC: Death Penalty Information Center, 2007), p. 8.

It is also clear that there are significant racial differences in support for the death penalty. A 2007 Gallup poll, for example, found that 70 percent of whites but only 40 percent of African Americans expressed support for the death penalty.42 In fact, as shown in Figure 8.1, since 1972 the percentage of respondents who report that they support the death penalty has been consistently higher among whites than among African Americans. Other research shows that whereas 35.9 percent of whites surveyed in 2000 stated that they strongly favored the death penalty for persons convicted of murder, 34.2 percent of African Americans reported that they were strongly opposed to the use of the death penalty.43 Beliefs about the fairness of the death penalty and estimates of the number of innocent people convicted of murder also vary by race and ethnicity. Fifty-nine percent of whites but only 32 percent of African Americans stated that they believed the death penalty was applied fairly.44 African American respondents estimated that 22 of every 100 persons convicted of murder were innocent. In contrast, the estimate was 15 of every 100 for Hispanic respondents, and 10 of every 100 for white respondents.45

SOURCE: Data from Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Tables 2.50 and 2.52.

Researchers have advanced a number of explanations to account for these consistent racial differences. Some attribute African American opposition to perceptions of racial bias in the application of the death penalty.46 Others contend that white support is associated with racial prejudice.47 One study, for example, found that antipathy to African Americans (which was measured by two items asking respondents to indicate their attitudes toward living in a majority–African American neighborhood or having a family member marry an African American) and belief in racial stereotypes (believing that African Americans are lazy, unintelligent, violent, and poor) predicted white respondents’ support for the death penalty.48 As the authors noted, “Simply put, many White people are both prejudiced against Blacks and are more likely to favor capital punishment.”49 The authors concluded that their finding of an association between racial prejudice and support for the death penalty suggests “that public sentiment may be an unacceptable indicator of contemporary standards of appropriate punishment for persons convicted of homicide.”50

A more recent study by James D. Unnever and Francis T. Cullen similarly found that one-third of the racial difference in support for the death penalty could be explained by “white racism.”51 The authors also noted that the fact that substantial differences remained even after white racism was taken into account suggests that “African Americans may have a distinct history with the death penalty” that encompasses both the epidemic of lynching that occurred throughout the South in the early 1900s and discriminatory use of the death penalty for crimes such as rape.52 Unnever and Cullen’s findings suggest that when policy makers justify their support for the death penalty by referencing “the will of the people,” they are ignoring a “discomforting reality.” That is, “that strong or high levels of support for capital punishment are largely rooted in the views of that segment of the public holding racist views toward African Americans.”53

There also is evidence of geographic variation in support for the death penalty and that these variations can be explained by features of the social context, such as the homicide rate, the political climate, and the size of the minority population.54 Eric Baumer and his colleagues found that support for the death penalty in 268 jurisdictions ranged from less than 50 percent to more than 90 percent. As they noted, this finding of geographic variation in support for the death penalty “challenges conventional wisdom and popular portrayals that support for capital punishment in the United States is universally high.”55 They also found that support for the death penalty was higher among respondents who lived in areas with high homicide rates, among people who lived in politically conservative jurisdictions, and among respondents who lived in areas with higher percentages of African Americans in the population. Community contextual characteristics, in other words, shaped citizens’ attitudes toward the death penalty. This suggests that attitudes toward capital punishment are determined not only by individual characteristics, including race/ethnicity, but also by the characteristics of the communities in which people live.

The Supreme Court’s decisions regarding the constitutionality of the death penalty have been guided by a number of assumptions. In the Furman decision, the five justices in the majority assumed that the absence of guidelines and procedural rules in then-existing death penalty statutes opened the door to arbitrary, capricious, and discriminatory decision making. In Gregg, the Court affirmed the guided discretion statutes on their face and assumed that the statutes would eliminate the problems condemned in Furman. The Court assumed that racial discrimination was a potential problem under the statutes struck down in Furman, but would not be a problem under the statutes approved in Gregg and the companion cases.

In this section we address the validity of these assumptions. We begin by presenting statistics on the application of the death penalty. We then discuss the results of pre-Furman and post-Furman studies investigating the relationship between race and the death penalty. We also examine recent research on the federal capital sentencing process.

There is clear evidence of racial disparity in the application of the death penalty. Despite the fact that African Americans make up only 13 percent of the U.S. population, they have been a much larger proportion of offenders sentenced to death and executed, both historically and during the post-Gregg era. There also is compelling evidence that those who murder whites, and particularly African Americans who murder whites, are sentenced to death and executed at disproportionately high rates. For example, the state of Georgia, which generated both Furman and Gregg, carried out 18 executions between 1976 and 1994. Twelve of those executed were African Americans; 6 of the 12 were sentenced to death by all-white juries. Sixteen of the 18 persons executed had killed whites.56

The pattern found in Georgia casts doubt on the Supreme Court’s assertion in Gregg that the disparities that prompted their decision in Furman will not be present “to any significant degree”57 under the guided discretion procedures. Other evidence also calls this into question. Consider the following statistics:

· Of the 3,261 people under sentence of death in the United States in January 2010, 1,351 (41.4 percent) were African Americans, 383 (11.7 percent) were Hispanic, and 1,448 (44.4 percent) were white.58

· Of the 58 females on death row in 2008, 15 (25.9 percent) were African American.59

· In 2010 African Americans made up approximately half of the death row populations in Alabama, Delaware, Georgia, Mississippi, North Carolina, Ohio, and South Carolina; they constituted nearly two-thirds (or more) of those on death row in Arkansas, Colorado, Connecticut, Louisiana, and Pennsylvania.60

· Thirty-one of the 59 offenders sentenced to death by the federal courts from 1993 through 2009 were African American, 23 were white, 4 were Hispanic, and 1 was Native American.61

· Of the 1,188 prisoners executed from 1976 through 2009, 666 (56 percent) were white, 415 (35 percent) were African American, 85 (7 percent) were Hispanic, and 22 (2 percent) were Native American or Asian.62

· Of the 1,757 victims of those executed from 1977 through 2009, 1,368 (77.9 percent) were white, 255 (14.5 percent) were African American, 95 (5.4 percent) were Hispanic, and 39 (2.3 percent) were Native Americans or Asians. During this period, approximately 50 percent of all murder victims were African Americans.63

· From 1977 through 2009, 53 percent of the prisoners executed were whites convicted of killing other whites, 21 percent were African Americans convicted of killing whites, 11 percent were African Americans convicted of killing other African Americans, and only 1.3 percent were whites convicted of killing African Americans.64

· Among those executed from 1930 through 1972 for the crime of rape, 89 percent (405 of the 455) were African Americans.65 During this period, Louisiana, Mississippi, Oklahoma, Virginia, West Virginia, and the District of Columbia executed 66 African American men, but not a single white man, for the crime of rape.66

· Among those sentenced to death for rape in North Carolina from 1909 to 1954, 56 percent of the African Americans, but only 43 percent of the whites, were eventually executed.67

· Twenty percent of the whites, but only 11 percent of the African Americans, sentenced to death for first-degree murder in Pennsylvania between 1914 and 1958 had their sentences commuted to life in prison.68

These statistics clearly indicate that African Americans have been sentenced to death and executed “in numbers far out of proportion to their numbers in the population.”69 They document racial disparity in the application of the death penalty, both prior to Furman and following Gregg.70 As we have noted frequently throughout this book, however, disparities in the treatment of racial minorities and whites do not necessarily constitute evidence of racial discrimination. Racial minorities may be sentenced to death at a disproportionately high rate, not because of discrimination in the application of the death penalty, but because they are more likely than whites to commit homicide, the crime most frequently punished by death. As illustrated by the hypothetical examples presented in Box 8.2, the appropriate comparison is not the number of African Americans and whites sentenced to death during a given year or over time. Rather, the appropriate comparison is the percentage of death-eligible homicides involving African Americans and whites that result in a death sentence.

The problem with the hypothetical examples presented in Box 8.2 is that there are no national data on the number of death-eligible homicides or on the race of those who commit or who are arrested for such crimes. Gary Kleck, noting that most homicides are intraracial, used the number of African American and white homicide victims as a surrogate measure.71 He created an indicator of “execution risk” by dividing the number of executions (for murder) of persons of a given race in a given year by the number of homicide victims of that race who died in the previous year.72 Using data from 1930 through 1967, Kleck found that the risk of execution was somewhat greater for whites (10.43 executions per 1,000 homicides) than for African Americans (9.72 executions per 1,000 homicides) for the United States as a whole, but that African Americans faced a greater likelihood of execution than whites in the South (10.47 for African Americans versus 8.39 for whites).73 He concluded that the death penalty “has not generally been imposed for murder in a fashion discriminatory toward blacks, except in the South.”74

Example 1

· 210 death-eligible homicides with African American offenders: 70 offenders (30 percent) receive the death penalty.

· 150 death-eligible homicides with white offenders: 50 offenders (30 percent) receive the death penalty.

· Conclusion: No evidence of discrimination, despite the fact that a disproportionate number of African Americans are sentenced to death.

Example 2

· 210 death-eligible homicides with African American offenders: 90 offenders (43 percent) receive the death penalty.

· 150 death-eligible homicides with white offenders: 30 offenders (20 percent) receive the death penalty.

· Conclusion: Possibility of discrimination because African Americans are more than twice as likely to be sentenced to death.

None of the statistics cited here, including the execution rates calculated by Kleck, prove that the death penalty has been imposed in a racially discriminatory manner, in the South or elsewhere, either before the Furman decision or after the Gregg decision. As we pointed out earlier, conclusions of racial discrimination in sentencing rest on evidence indicating that African Americans are sentenced more harshly than whites after other legally relevant predictors of sentence severity are taken into account.

Even if it can be shown that African Americans face a greater risk of execution than whites, we cannot necessarily conclude that this reflects racial prejudice or racial discrimination. The difference might be the result of legitimate legal factors—the heinousness of the crime or the prior criminal record of the offender, for example—that juries and judges consider in determining whether to sentence the offender to death. If African Americans are sentenced to death at a higher rate than whites because they commit more heinous murders than whites or because they are more likely than whites to have a prior conviction for murder, then we cannot conclude that criminal justice officials or juries are making racially discriminatory death penalty decisions.

The data presented in Table 8.2 provide some evidence in support of this possibility. Among prisoners under sentence of death in 2008, African Americans were more likely than either Hispanics or whites to have a prior felony conviction. African Americans and Hispanics also were more likely than whites to have been on parole when they were arrested for the capital offense. There were, on the other hand, very few differences in the proportions of whites and African Americans who had a prior homicide conviction.

SOURCE: Department of Justice, Bureau of Justice Statistics, Capital Punishment 2008—Statistical Tables (Washington, DC: U.S. Government Printing Office, 2009), Table 8.

Just as the presence of racial disparity does not necessarily signal the existence of racial discrimination, the absence of disparity does not necessarily indicate the absence of discrimination. Even if it can be shown that African Americans generally face the same risk of execution as whites, we cannot conclude that the capital sentencing process operates in a racially neutral manner. Assume, for example, that the crimes for which African Americans are sentenced to death are less serious than those for which whites are sentenced to death. If this is the case, apparent equality of treatment may be masking race-linked assessments of crime seriousness. Moreover, as we noted in our discussion of the noncapital sentencing process, it is important to consider not only the race of the offender but the race of the victim as well. If African Americans who murder whites are sentenced to death at a disproportionately high rate, but African Americans who murder other African Americans are sentenced to death at a disproportionately low rate, the overall finding of “no difference” in the death sentence rates for African American and white offenders may be masking significant differences based on the race of the victim. As Guy Johnson wrote in 1941,

If caste values and attitudes mean anything at all, they mean that offenses by or against Negroes will be defined not so much in terms of their intrinsic seriousness as in terms of their importance in the eyes of the dominant group. Obviously, the murder of a white person by a Negro and the murder of a Negro by a Negro are not at all the same kind of murder from the standpoint of the upper caste’s scale of values ... instead of two categories of offenders, Negro and white, we really need four offender-victim categories, and they would probably rank in seriousness from high to low as follows:(1) Negroversus white, (2) white versus white, (3) Negro versus Negro, and white versus Negro.75

Evidence in support of Johnson’s rankings is presented in Box 8.3, which focuses on the “anomalous” cases in which whites have been executed for crimes against African Americans. According to Michael L. Radelet, “the scandalous paucity of these cases, representing less than two-tenths of 1 percent of known executions, lends further support to the evidence that the death penalty in this country has been discriminatorily applied.”76

There is now a substantial body of research investigating the relationship between race and the death penalty. Most, but not all, of the research tests for both race-of-defendant and race-of-victim effects. Some of these studies are methodologically sophisticated, both in terms of the type of statistical analysis used and the number of variables that are taken into consideration in the analysis. Other studies use less sophisticated statistical techniques and include fewer control variables.

We summarize the results of these studies—presenting the results of the pre-Furman studies first and then the results of the post-Gregg studies. Our purpose is to assess the validity of the Supreme Court’s assumptions that race played a role in death penalty decisions prior to Furman, but that the guided discretion statutes enacted since 1976 have removed arbitrariness and discrimination from the capital sentencing process.

Between 1608 and the mid-1980s, there were about 16,000 executions in the United States.77 Of these, only 30, or about two-tenths of 1 percent, were executions of whites for crimes against African Americans. Historically, in other words, there has been one execution of a white for a crime against an African American for every 533 recorded executions.

Michael Radelet believes that these white offender–black victim cases, which would appear to be “theoretically anomalous” based on the proposition that race is an important determinant of sentencing, are not really “exceptions to the rule.”78 Although he acknowledges that each case is in fact anomalous if race alone is used to predict the likelihood of a death sentence, Radelet suggests that these cases are consistent with a more general theoretical model that uses the relative social status of defendants and victims to explain case outcomes. These cases, in other words, are consistent with “the general rule that executions almost always involve lower status defendants who stand convicted for crimes against victims of higher status.”79

Radelet’s examination of the facts in each case revealed that 10 of the 30 cases involved white men who murdered slaves, and 8 of these 10 involved men convicted of murdering a slave who belonged to someone else. The scenario of one case, for example, read as follows:

June 2, 1985. Texas. James Wilson (a.k.a. Rhode Wilson). Wilson had been on bad terms with a powerful white farmer, and had threatened to kill him on several occasions. One day Wilson arrived at the farm with the intention of carrying out the threats. The farmer was not home, so Wilson instead murdered the farmer’s favorite slave (male).80

According to Radelet, cases such as this are really “economic crimes” in which the true victim is not the slave himself, but the slave’s owner. As he notes, “Slaves are property, the wealth of someone else, and their rank should be measured accordingly.” James Wilson, in other words, was sentenced to death not because he killed a slave, but because he destroyed the property of someone of higher status than himself. Similarly, the death sentences imposed on the two men who killed their own slaves were meant to discourage such brutality, which might threaten the legitimacy of the institution of slavery.

The twenty remaining cases of whites who were executed for crimes against African Americans involved either

· an African American victim of higher social status than his white murderer (five cases);

· a defendant who was a marginal member of the white community—a tramp, a recent immigrant, a hard drinker (four cases);

· a defendant with a long record of serious criminality (seven cases); or

· murders that were so heinous that they resulted in “an unqualified disgust and contempt for the offender unmitigated by the fact of his or the victim’s race.”81

Based on his analysis of these 30 cases, Radelet concluded that “it was not primarily outrage over the violated rights of the black victim or the inherent value of the victim’s life that led to the condemnation.”82 Rather, the 30 white men executed for crimes against African Americans were sentenced to death because their crimes threatened the institution of slavery, involved a victim of higher social status than the defendant, or involved a defendant who was a very marginal member of the community. As Radelet noted, “The data show that the criminal justice system deems the executioner’s services warranted not simply for those who do something, but who also are someone.”83

We noted in our discussion of the Supreme Court’s decision in Furman v. Georgia that three of the five justices in the majority mentioned the problem of racial discrimination in the application of the death penalty. Even two of the dissenting justices—Chief Justice Burger and Justice Powell—acknowledged the existence of historical evidence of discrimination against African Americans. Justice Powell also stated, “If a Negro defendant, for instance, could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense, a constitutional violation might be established.”84

Several studies suggest that African Americans, and particularly African Americans who murdered or raped whites, were “singled out for more severe punishment” in the pre-Furman era.85 Most of these studies were conducted in the South. Researchers found, for example, that African Americans indicted for murdering whites in North Carolina from 1930 to 1940 faced a disproportionately high risk of a death sentence,86 that whites sentenced to death in nine southern and border states during the 1920s and 1930s were less likely than African Americans to be executed,87 and that African Americans sentenced to death in Pennsylvania were less likely than whites to have their sentences commuted to life in prison and more likely than whites to be executed.88

Harold Garfinkel’s89 study of the capital sentencing process in North Carolina during the 1930s revealed the importance of taking both the race of the offender and the race of the victim into account. Garfinkel examined three separate decisions: the grand jury’s decision to indict for first-degree murder; the prosecutor’s decision to go to trial on a first-degree murder charge (in those cases in which the grand jury returned an indictment for first-degree murder); and the judge or jury’s decision to convict for first-degree murder (and thus to impose the mandatory death sentence).

As shown in Figure 8.2, which summarizes the movement of death-eligible cases from one stage to the next, there were few differences based on the race of the offender. In fact, among defendants charged with first-degree murder, white offenders were more likely than African American offenders to be convicted of first-degree murder and thus to be sentenced to death; 14 percent of the whites, but only 9 percent of the African Americans, received a death sentence.

SOURCE: Data obtained from Harold Garfinkel, “Research Note on Inter- and Intra-Racial Homicides,” Social Forces 27 (1949), Tables 2 and 3.

In contrast, there were substantial differences based on the race of the victim, particularly in the decision to convict the defendant for first-degree murder. Only 5 percent of the defendants who killed African Americans were convicted of first-degree murder and sentenced to death, compared to 24 percent of the defendants who killed whites.

The importance of considering both the race of the offender and the race of the victim is further illustrated by the data presented in Figure 8.3. Garfinkel’s analysis revealed that African Americans who killed whites were more likely than any of the other race-of-offender / race-of-victim groups to be indicted for, charged with, or convicted of first-degree murder. Again, the differences were particularly pronounced at the trial stage of the process. Among offenders charged with first-degree murder, the rate of conviction for first-degree murder ranged from 43 percent for African Americans who killed whites, to 15 percent for whites who killed whites, to 5 percent for blacks who killed blacks, to 0 percent for whites who killed blacks. The overall probability of a death sentence (that is, the probability that an indictment for homicide would result in a death sentence) revealed similar disparities. African Americans who killed whites had a substantially higher overall probability of a death sentence than any of the other three groups.

SOURCE: Date obtained from Harold Garfinkel, “Research Note on Inter- and Intra-Racial Homicides,” Social Forces 27 (1949), Tables 2 and 3.

The results of Garfinkel’s study suggest that there were pervasive racial differences in the administration of capital punishment in North Carolina during the 1930s. Although Garfinkel did not control for the possibility that the crimes committed by African Americans and the crimes committed against whites were more serious, and thus more likely to deserve the death penalty, the magnitude of the differences “cast[s] doubt on the possibility that legally relevant factors are responsible for these differences.”90

Studies of the use of capital punishment for the crime of rape also reveal overt and pervasive discrimination against African Americans in the pre-Furman era. These studies reveal that “the death penalty for rape was largely used for punishing blacks who had raped whites.”91 One analysis of sentences for rape in Florida from 1940 through 1964, for example, revealed that 54 percent of the African Americans convicted of raping whites received the death penalty, compared to only 5 percent of the whites convicted of raping whites. Moreover, none of the eight whites convicted of raping African Americans was sentenced to death.92

Marvin E. Wolfgang and Marc Reidel’s93 study of the imposition of the death penalty for rape in 12 southern states from 1945 through 1965 uncovered a similar pattern. As shown in Table 8.3, they found that 13 percent of the African Americans, but only 2 percent of the whites, were sentenced to death. Further analysis revealed that cases in which African Americans were convicted of raping whites were 18 times more likely to receive a death penalty than were cases with any other racial combinations.

SOURCE: Marvin E. Wolfgang and Marc Reidel, “Race, Judicial Discretion, and the Death Penalty,” Annals of the American Academy 407 (1973), pp. 119–133, p. 129, Tables 1 and 2.

These differences did not disappear when Wolfgang and Reidel controlled for commission of a contemporaneous felony or for other factors associated with the imposition of the death penalty. According to the authors, “All the nonracial factors in each of the states analyzed ‘wash out,’ that is, they have no bearing on the imposition of the death penalty in disproportionate numbers upon blacks. The only variable of statistical significance that remains is race.”94

Critics of the pre-Furman research note that most researchers did not control for the defendant’s prior criminal record, for the heinousness of the crime, or for other predictors of sentence severity. Kleck, for example, although admitting that additional controls probably would not eliminate “the huge racial differentials in use of the death penalty” for rape, asserted that the more modest differences found for homicide might disappear if these legal factors were taken into consideration.95

A handful of more methodologically sophisticated studies of capital sentencing in the pre-Furman era controlled for these legally relevant factors. An analysis of death penalty decisions in Georgia, for example, found that African American defendants and defendants who murdered whites received the death penalty more often than other equally culpable defendants.96 These results were limited, however, to borderline cases in which the appropriate sentence (life in prison or death) was not obvious.

An examination of the capital sentencing process in pre-Furman Texas also found significant racial effects.97 Paige H. Ralph and her colleagues controlled for legal and extralegal factors associated with sentence severity. They found that offenders who killed during a felony had a higher probability of receiving the death penalty, as did nonwhite offenders and offenders who killed whites. In fact, their analysis revealed that the race of the victim was the most important extralegal variable; those who killed whites were 25.2 percent more likely to be sentenced to death than those who killed non-whites. The authors concluded, “Overall we found a significant race-linked bias in the death sentencing of non-Anglo-American murderers; the victim’s race, along with legal factors taken together, emerged as the pivotal element in sentencing.”98

The results of these studies, then, reveal that the Supreme Court was correct in its assumption of the potential for racial discrimination in the application of the death penalty in the pre-Furman era. The death penalty for rape was primarily reserved for African Americans who victimized whites (for a discussion of gendered racism in capital sentencing, see Box 8.4). The evidence with respect to homicide, although less consistent, also suggests that African Americans, and particularly African Americans who murdered whites, were sentenced to death at a disproportionately high rate. We now turn to an examination of the capital sentencing process in the post-Gregg period.

In an article published in Criminal Justice Review in 2008, David V. Baker contends that criminal justice researchers have largely ignored the use of capital punishment for African American women. In an attempt to remedy this, Baker examines the “contextual peculiarities giving rise to Black female executions since the earliest periods of American history.”99

Baker presents data that illustrate the situations that gave rise to the execution of African American slave women during the colonial and antebellum periods. He notes that “slave women mostly strangled, clubbed, stabbed, burned, shot, poisoned, or hacked to death their White masters, mistresses, overseers, and even their owner’s children.”100 These crimes were prompted by mistreatment, including sexual abuse, at the hands of their owners. According to Baker, “The historical record makes clear that slave women fought back viciously against the sexualized brutality of White masters,” either by killing their owners or members of their owner’s family or by intentionally aborting pregnancies that resulted from sexual abuse by their owners. Slave women often were assisted by slave men or, occasionally, by white co-conspirators. However, Baker notes that slave women were given harsher punishments than slave men; they were often burned at the stake while their male co-conspirators were hanged.

In Gregg v. Georgia the Supreme Court upheld Georgia’s guided discretion death penalty statute and stated that “the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.”101 The Court, in essence, predicted that race would not affect the capital sentencing process in Georgia or in other states with similar statutes. Critics of the Court’s ruling were less optimistic. Wolfgang and Reidel, for example, noted that the post-Furman statutes narrowed but did not eliminate discretion. They suggested that “it is unlikely that the death penalty will be applied with greater equity when substantial discretion remains in these post-Furman statutes.”102

Other commentators predicted that the guided discretion statutes would simply shift discretion, and thus the potential for discrimination, to earlier stages in the capital sentencing process. They suggested that discretion would be transferred to charging decisions made by the grand jury and the prosecutor. Thus, according to Bowers and Glenn L. Pierce, “under post-Furman capital statutes, the extent of arbitrariness and discrimination, if not their distribution over stages of the criminal justice process, might be expected to remain essentially unchanged.”

Compelling evidence supports this hypothesis. (See also Box 8.5.) Studies conducted during the past three decades document substantial discrimination in the application of the death penalty under post-Furman statutes. In fact a 1990 report by the U.S. General Accounting Office (GAO) concluded that there was “a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.”107

Statistical evidence of racial disparities in the use of the death penalty, although important, cannot illustrate the myriad ways in which racial sentiments influence the capital sentencing process. Consider the case of Wilburn Dobbs, an African American on death row in Georgia for the murder of a white man.103 The judge trying his case referred to him in court as “colored” and “colored boy,” and two of the jurors who sentenced him to death admitted after trial that they used the racial epithet “nigger.” Moreover, the court-appointed lawyer assigned to his case, who also referred to Dobbs as “colored,” stated on the morning of trial that he was “not prepared to go to trial” and that he was “in a better position to prosecute the case than defend it.” He also testified before the federal court hearing Dobbs’s appeal that he believed that African Americans were uneducated and less intelligent than whites and admitted that he used the word “nigger” jokingly.104

The federal courts that heard Dobbs’s appeals ruled that neither the racial attitudes of the trial judge or the defense attorney nor the racial prejudice of the jurors required that Dobbs’s death sentence be set aside. The Court of Appeals, for instance, noted that although several of the jurors made statements reflecting racial prejudice, none of them “viewed blacks as more prone to violence than whites or as morally inferior to whites.”105

The Court’s reasoning in this case led Stephen Bright to conclude that “racial discrimination which would not be acceptable in any other area of American life today is tolerated in criminal courts.”106

The GAO evaluated the results of 28 post-Gregg empirical studies of the capital sentencing process. They found that the race of the victim had a statistically significant effect in 23 of the 28 studies; those who murdered whites were more likely to be charged with capital murder and to be sentenced to death than those who murdered African Americans. The authors of the report noted that the race of the victim affected decisions made at all stages of the criminal justice process. They concluded that these differences could not be explained by the defendant’s prior criminal record, by the heinousness of the crime, or by other legally relevant variables.

With respect to the effect of the race of the defendant, the GAO report concluded that the evidence was “equivocal.”108 The report noted that about half of the studies found that the race of the defendant affected the likelihood of being charged with a capital crime or receiving the death penalty; most, but not all, of these studies found that African Americans were more likely than whites to be sentenced to death. The authors of the report also stated that although some studies found that African Americans who murdered whites faced the highest odds of receiving the death penalty, “the extent to which the finding was influenced by race of victim rather than race of defendant was unclear.”109

A more recent review of research on the capital sentencing process reached a somewhat different conclusion. David C. Baldus and George Woodworth reviewed post-Furman research, concluding that there was not systematic evidence of discrimination against black defendants.110 The authors suggested three possible explanations for this change from the pre-Furman period. First, the change might reflect the fact that prosecutors are striving for equal treatment.111 Alternatively, it might reflect greater racial diversity among judges, prosecutors, and defense attorneys and/or the fact that defendants facing capital charges are provided with more competent defense attorneys than they were in the past. Consistent with the results of the GAO report, Baldus and Woodworth reported that a number of the studies they reviewed continued to find a race-of-victim effect. They concluded that “while the discriminatory application of the death penalty continues to occur in some places, it does not appear to be inherent to the system; in other words, it is not an inevitable feature of all American death-sentencing systems.”112

A comprehensive review of the post-Gregg research is beyond the scope of this book.113 Instead, we summarize the results of three studies. The first, a study of the capital sentencing process in Georgia,114 is one of the most sophisticated studies conducted to date. It also figured prominently in the Supreme Court’s decision in McCleskey v. Kemp. The second is a study of capital sentencing patterns in eight states,115 and the third is a study of death sentencing for California homicides during the 1990s.116 We then discuss recent research on the federal capital sentencing process. We end this section by summarizing the results of a study of race and the probability of execution in the post-Gregg period.

David Baldus and his colleagues analyzed the effect of race on the outcomes of more than 600 homicide cases in Georgia from 1973 through 1979.117 Their examination of the raw data revealed that the likelihood of receiving a death sentence varied by both the race of the offender and the race of the victim. The first column of Table 8.4 shows that 35 percent of the African Americans charged with killing whites were sentenced to death, compared with only 22 percent of the whites who killed whites, 14 percent of the whites who killed African Americans, and 6 percent of the African Americans who killed other African Americans.

SOURCE: David C. Baldus, George G. Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty (Boston Northeastern University Press, 1990), Tables 30 and 34.

Baldus and his co-authors also discovered that the race of the victim played an important role in both the prosecutor’s decision to seek the death penalty and the jury’s decision to impose the death penalty (see columns 2 and 3, Table 8.4). The victim’s race was a particularly strong predictor of the prosecutor’s decision to seek or waive the death penalty. In fact, Georgia prosecutors were nearly four times more likely to request the death penalty for African American offenders convicted of killing whites than for African American offenders convicted of killing African Americans. The effect of the race of the victim was less pronounced when the offender was white; prosecutors sought the death penalty in 38 percent of the cases with white offenders and white victims but only 21 percent of the cases with white offenders and black victims.

The authors of this study then controlled for more than 200 variables that might explain these disparities; they included detailed information on the defendant’s background and prior criminal record, information concerning the circumstances and the heinousness of the crime, and measures of the strength of evidence against the defendant. They found that inclusion of these controls did not eliminate the racial differences. Although the race of the offender was only a weak predictor of death penalty decisions once these legal factors were taken into consideration, the race of the victim continued to exert a strong effect on both the prosecutor’s decision to seek the death penalty and the jury’s decision to impose the death penalty. In fact those who killed whites were more than four times as likely to be sentenced to death as those who killed African Americans.

Further analysis revealed that the effects of race were not uniform across the range of homicide cases included in the analysis. Not surprisingly, race had little effect on decision making in the least aggravated cases, in which virtually no one received the death penalty, or in the most heinous cases, in which a high percentage of murderers, regardless of their race or the race of their victims, were sentenced to death. Rather, race played a role primarily in the mid-range of cases where decision makers could decide either to sentence the offender to life in prison or impose the death penalty. In these types of cases, the death-sentencing rate for those who killed whites was 34 percent compared with only 14 percent for those who killed African Americans.

These findings led Baldus and his colleagues to conclude that the race of the victim was “a potent influence in the system”118 and that the state of Georgia was operating a “dual system” for processing homicide cases. According to the authors, “Georgia juries appear to tolerate greater levels of aggravation without imposing the death penalty in black victim cases; and, as compared to white victim cases, the level of aggravation in black victim cases must be substantially greater before the prosecutor will even seek a death sentence.”119

Anthony Amsterdam’s120 analysis was even blunter. Noting that 9 of the 11 murderers executed in Georgia between 1973 and 1988 were African American and that 10 of the 11 had killed white victims, Amsterdam asked, “Can there be the slightest doubt that this revolting record is the product of some sort of racial bias rather than a pure fluke?”121

Some commentators would be inclined to answer this question in the affirmative. They would argue that the statistics included in the Baldus study are not representative of death penalty decisions in the United States as a whole; rather, they are peculiar to southern states such as Georgia, Texas, Florida, and Mississippi. A study by Samuel R. Gross and Robert Mauro addressed this possibility.

Gross and Mauro examined death penalty decisions in the post-Gregg era (1976 to 1980) in eight states—Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and Virginia.122 They found that the risk of a death sentence was much lower for defendants charged with killing African Americans than for defendants charged with killing whites in each of the eight states included in their study. In Georgia and Mississippi, for example, those who killed whites were nearly 10 times as likely to be sentenced to death as those who killed African Americans. The ratios for the other states included in the study were 8:1 (Florida), 7:1 (Arkansas), 6:1 (Illinois, Oklahoma, and North Carolina), and 5:1 (Virginia).

The authors also discovered that African Americans who killed whites faced the greatest odds of a death sentence. Figure 8.4 presents the percentages of death sentences by race of suspect and race of victim for the three states with the largest number of death-eligible cases. In Georgia, 20.1 percent of the African Americans who killed whites were sentenced to death, compared with only 5.7 percent of the whites who killed whites, 2.9 percent of the whites who killed African Americans, and less than 1 percent (0.8 percent) of the African Americans who killed African Americans. There were similar disparities in Florida and Illinois. In fact, in these three states only 32 of the 4,731 cases with African American defendants and African American victims resulted in a death sentence, compared with 82 of the 621 cases involving African American defendants and white victims.

SOURCE: Data obtained from Samuel R. Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing (Boston: Northeastern University Press, 1989).

These racial disparities did not disappear when Gross and Mauro controlled for other legally relevant predictors of sentence severity. According to the authors,

The major factual finding of this study is simple: there has been racial discrimination in the imposition of the death penalty under post-Furman statutes in the eight states that we examined. The discrimination is based on the race of the victim, and it is a remarkably stable and consistent phenomenon.... The data show “a clear pattern, unexplainable on grounds other than race.”123

Like the Baldus study, then, this study of the capital sentencing process in eight states showed that the race of the victim was a powerful predictor of death sentences.

The two studies described previously provide compelling evidence of victim-based racial discrimination in the use of the death penalty in the years immediately following the Gregg decision. Recent research in states such as Maryland,124 North Carolina,125 Virginia,126 Ohio,127 and California128 provides equally compelling evidence of racial disparities in the capital sentencing process during the 1990s and early 2000s.

Research conducted in California illustrates this more recent trend. In 2005 California had the largest death row population in the United States, with 648 inmates under sentence of death.129 Of those inmates on death row, 39 percent were white, 36 percent were African American, 20 percent were Hispanic, 3 percent were Asian, and 2 percent were Native American.

To determine whether these figures reflected racial/ethnic bias in the imposition of the death penalty in California, Pierce and Radelet examined the characteristics of all offenders sentenced to death in the state from 1990 through 2003 (for homicides committed from 1990 to 1999). They found that offenders who killed whites were 3.7 times more likely to be sentenced to death than offenders who killed African Americans; those who killed whites were 4.7 times more likely to be sentenced to death than those who killed Hispanics.130 To address the possibility that these differences were because the murders of whites were more aggravated or more heinous than the murders of nonwhites, the authors divided the homicides in their sample into three categories: those with no aggravating circumstances, those with one aggravating circumstance, and those with two aggravating circumstances. As the authors noted, “If homicides that victimize whites are indeed more aggravated than other homicides, death sentencing rates will be similar across each category of victim’s race/ethnicity for each level of aggression.”131

The results presented in Table 8.5 do not support the hypothesis that those who kill whites are sentenced to death more often because their crimes are more heinous. Although the death sentencing rate increased for each of the three groups as the number of aggravating circumstances increased, for each level of aggravation, those who killed whites were substantially more likely than those who killed African Americans or Hispanics to be sentenced to death. These findings were confirmed by the results of a multivariate analysis, which simultaneously controlled for the number of aggravating circumstances, the race/ethnicity of the victim, and the population density and racial makeup of the county in which the crime occurred. The authors found that those who killed African Americans or Hispanics were significantly less likely than those who killed whites to be sentenced to death. They concluded that “the data clearly show that the race and ethnicity of homicide victims is associated with the imposition of the death penalty.”132

SOURCE: Glenn L. Pierce and Michael L. Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999,” Santa Clara Law Review 46 (2005), Table 6.

The research discussed thus far focused on the likelihood that a defendant would be charged with a capital crime and, if so, the probability of a death sentence. In an article entitled, “Who Survives on Death Row?” David Jacobs and his colleagues addressed a different question—that is, what factors affect whether an offender who has been sentenced to death will be executed?133

This is an important question, given that only about 10 percent of offenders on death row ultimately are executed. Most death-sentenced offenders eventually are resentenced to life in prison or some other sentence as a result of a successful appeal, are pardoned as a result of a clemency proceeding, are freed as a result of evidence of their innocence, or die of natural causes while on death row. Yet there is very little research designed to identify the individual and contextual factors that determine who, among all those sentenced to death, ultimately will be executed. As Jacobs and his colleagues noted, “whether victim race continues to explain the fate of condemned prisoners after they have been sentenced remains a complete mystery.”134

The authors of this study used data on offenders sentenced to death from 1973 to 2002 to examine the ways in which “offender attributes and the political and social context of the states affect post-sentencing execution likelihood.” When they examined the characteristics of those who were executed, they found that 55.5 percent were white, 34.9 percent were African American, and 9.7 percent were Hispanic; among cases for which the race of the victim was known, 80.3 percent of the offenders who were executed had white victims and only 19.7 percent had nonwhite victims.135

The results of the authors’ multivariate analysis revealed that African Americans who killed whites had significantly greater odds of execution than did other death-sentenced offenders and that Hispanics also faced a somewhat higher probability of execution if their victims were white. The authors concluded that “the post-sentencing capital punishment process continues to place greater value on white lives,” and that “despite efforts to transcend an unfortunate racial past, residues of this fierce discrimination evidently still linger, at least when the most morally critical decision about punishment is decided.”136

The results of the death penalty studies conducted in the post-Gregg era provide compelling evidence that the issues raised by the Supreme Court in Furman have not been resolved. The Supreme Court’s assurances in Gregg notwithstanding, racial discrimination in the capital sentencing process did not disappear as a result of the guided-discretion statutes enacted in the wake of the Furman decision. Methodologically sophisticated studies conducted in southern and nonsouthern jurisdictions, and in the 1990s as well as the 1970s and 1980s, consistently conclude that the race of the victim affects death sentencing decisions. Many of these studies also conclude that the race of the defendant, or the racial makeup of the offender/victim pair, influences the capital sentencing process.

According to Austin Sarat, professor of jurisprudence and political science at Amherst College, “the post-Furman effort to rationalize death sentences has utterly failed; it has been replaced by a policy that favors execution while trimming away procedural protection for capital defendants. This situation only exacerbates the incompatibility of capital punishment and legality.”137 Scott W. Howe, a professor of criminal law at Chapman University School for Law, similarly contends that widespread evidence of racial disparity in capital sentencing undermines “confidence in the neutrality of capital selection nationwide.... The studies, considered as a group, imply racial discrimination.”138 (See Box 8.6 for a discussion of the effect of the race and gender of the victim on the capital sentencing process.)

As noted earlier, state legislatures moved quickly to revise their death penalty statutes in the wake of the 1972 Furman decision. The federal government, however, did not do so until 1988, when passage of the Anti-Drug Abuse Act made the death penalty available for certain serious drug-related offenses. The number of federal offenses for which the death penalty is an option increased substantially as a result of legislation passed during the mid-1990s. The Federal Death Penalty Act of 1994 added over 40 federal offenses to the list of capital crimes, and the Antiterrorism and Effective Death Penalty Act of 1996 added an additional four offenses.143

Research on the application of the death penalty reveals that those who kill whites are more likely than those who kill African Americans to be sentenced to death. There also is evidence that those who kill females are more likely than those who kill males to receive the death penalty. This raises the question, Are those who kill white women sentenced to death at a disproportionately high rate?

To answer this question, Marian R. Williams and Jefferson E. Holcomb analyzed data on homicides in Ohio for the years 1981 to 1994.139 When they looked at the raw data, they found that white females made up only 15 percent of all homicide victims but 35 percent of all death sentences. Cases in which the offender was a white male and the victim was a white female made up 12 percent of all homicides but 28 percent of all death sentences; cases in which the offender was an African American male and the victim was a white female made up 2 percent of homicide cases but 8 percent of death sentences.140

Multivariate analysis confirmed these findings. The authors controlled for the race, gender, and age of the victim and the offender; whether a gun was used; whether the victim and offender were strangers; whether the homicide involved another felony or multiple victims; and the location of the crime. They found that homicides with female victims were more than twice as likely as those with male victims to result in a death sentence, and that homicides with white victims were about one and a half times more likely as those with African American victims to result in a death sentence. Further analysis revealed that offenders who victimized white females had significantly higher odds of being sentenced to death than offenders who victimized African American females, African American males, or white males.141

Williams and Holcomb concluded that the results of their study, which they acknowledged provided only a preliminary test of their hypothesis, suggested “that the central factor in understanding existing racial disparity in death sentences may be the severity with which those who kill White females are treated relative to other gender-race victim combinations.”142 This suggests that criminal justice officials and jurors who make death penalty decisions believe that homicides involving white women are especially heinous and that those people who kill white women are therefore more deserving of death sentences than those who kill men or women of color.

The Department of Justice has adopted a set of standards and procedures—commonly known as the “death penalty protocol”—to govern death penalty decisions in federal cases. According to this protocol, a U.S. attorney cannot seek the death penalty without prior written authorization from the attorney general. The steps in the capital case review process are as follows:144

· U.S. attorneys are required to submit all cases involving a charge for which the death penalty is a legally authorized sanction, regardless of whether the attorney recommends seeking the death penalty, to the Capital Case Unit of the Criminal Division for review.

· The Capital Case Unit reviews the case and prepares an initial analysis and recommendation regarding the death penalty.

· The case is forwarded to the attorney general’s Capital Case Review Committee, which is composed of senior U.S. Justice Department lawyers—the members of the committee meet with the U.S. attorney and defense counsel responsible for the case, review documents submitted by all parties, and make a recommendation to the attorney general.

· The attorney general makes the final decision regarding whether to seek the death penalty.

According to the U.S. Department of Justice, these procedures are designed to ensure that the federal capital sentencing process is fair and equitable: “Both the legal rules and the administrative procedures that currently govern federal capital cases incorporate extensive safeguards against any influence of racial or ethnic bias or prejudice.”145

The U.S. Department of Justice has conducted two studies of the federal capital sentencing process. The first study, which was released in 2000, revealed that from 1995 to 2000, U.S. attorneys forwarded for review 682 death-eligible cases. Eighty percent of the defendants in these cases were racial minorities: 324 (48 percent) were African American; 195 (29 percent) were Hispanic; and 29 (4 percent) were Native American, Asian, and other races.146 This study also revealed, however, that participants in the review process were less likely to recommend (or to seek) the death penalty if the defendant was a racial minority. As shown in Table 8.6, U.S. attorneys recommended the death penalty in 36 percent of the cases involving white defendants, compared with 25 percent of those involving African American defendants and 20 percent of those involving Hispanic defendants. There was a similar pattern of results for the Capital Case Unit’s recommendation (to the attorney general) to request the death penalty, the attorney general’s decision to authorize the U.S. attorney to file a notice of intent to seek the death penalty, and the U.S. Department of Justice’s final decision to seek the death penalty.

SOURCE: U.S. Department of Justice, The Federal Death Penalty System: A Statistical Survey (1988–2000). (Washington, DC: U.S. Department of Justice), pp. 10–11.

The data presented in Table 8.6 demonstrate that although the U.S. Justice Department’s study did not find racial bias in the decisions that followed the U.S. attorney’s initial decision to submit the case for review, it did find that a significant majority of the cases that were submitted for review involved African American and Hispanic defendants. The attorney general at the time, Janet Reno, stated that she was “sorely troubled” by these findings, adding that “we must do all we can in the federal government to root out bias at every step.” Reno’s concerns were echoed by then-Deputy Attorney General of the United States (and now Attorney General of the United States) Eric Holder, an African American prosecutor who oversaw the study. He said that he was “both personally and professionally disturbed by the numbers.”147 Publication of the report also led President Clinton to grant a six-month reprieve to Juan Raul Garza, a Mexican American from Texas who was scheduled to be executed in January of 2001. In granting the reprieve, Clinton stated that “the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department’s continuing study.”148

Attorney General Reno ordered the Department of Justice to gather additional data about the federal capital sentencing process. The results of this study, which was overseen by Janet Reno’s successor, John Ashcroft, were released in 2001.149 Unlike the first study, which examined only those cases that were charged as capital crimes and submitted for review, this study included an analysis of cases in which the facts would have supported a capital charge but the defendants were not charged with a capital crime (and thus the case was not submitted for review). The results of the second study were generally similar to those of the first. Within the larger pool of cases examined in the follow-up study, which included 973 defendants, 17 percent (166) were white, 42 percent (408) were African American, and 36 percent (350) were Hispanic. Consistent with the results of the 2000 study, “potential capital cases involving Black or Hispanic defendants were less likely to result in capital charges and submission of the case to the review procedure ... likewise [these cases] were less likely to result in decisions to seek the death penalty.”150

The 2001 report, which noted that the proportion of racial minorities in federal capital cases was substantially greater than the proportion of racial minorities in the general population, concluded that “the cause of this disproportion is not racial or ethnic bias, but the representation of minorities in the pool of potential federal capital cases.”151 The report attributed the overrepresentation of African Americans and Hispanics in the federal capital case pool to a number of factors, including the fact that federal law enforcement officers focused their attention on drug trafficking and related criminal violence. According to the report,

In areas where large-scale, organized drug trafficking is largely carried out by gangs whose memberships is drawn from minority groups, the active federal role in investigating and prosecuting these crimes results in a high proportion of minority defendants in federal cases, including a high proportion of minority defendants in potential capital cases arising from the lethal violence associated with the drug trade. This is not the result of any form of bias, but reflects the normal factors that affect the division of federal and state prosecutorial responsibility.152

Opponents of the death penalty criticized the 2001 report, and the Justice Department’s interpretation of the data, on a number of grounds. The American Civil Liberties Union (ACLU), for example, asserted that there were a number of problems with the study, which it characterized as “fatally flawed.”153 The ACLU noted that the report did not address questions regarding the prosecution of cases in the federal system rather than the state system or examine whether race/ethnicity played a role in these decisions or in U.S. attorneys’ decisions to enter into plea bargains. The ACLU asserted that Attorney General Ashcroft reached a “premature” conclusion that “racial bias has not played a role in who is on federal death row in America,” adding that “This remarkable conclusion is not only inaccurate, but also dangerous, because it seeks to give Americans the impression that our justice system is fair when in fact there is substantial evidence that it is not.”154

On June 11, 2001, Timothy McVeigh, who was convicted of a number of counts stemming from the 1995 Oklahoma City bombing, became the first federal offender since 1963 to be put to death. The execution of Juan Raul Garza, a Texas marijuana distributor who was sentenced to death in 1993 for the murder of three other drug traffickers, followed eight days later. A third federal offender, Louis Jones, who was sentenced to death for kidnapping and murdering a white female soldier, was executed in March of 2003. By October of 2010 there were 60 offenders on federal death row: 27 were African American, 24 were white, 8 were Hispanic, and 1 was Native American.155

Researchers have advanced two interrelated explanations for the higher death penalty rates for homicides involving African American offenders and white victims and the lower rates for homicides involving African American offenders and African American victims.

The first explanation builds on conflict theory’s premise that the law is applied to maintain the power of the dominant group and to control the behavior of individuals who threaten that power.156 It suggests that crimes involving African American offenders and white victims are punished most harshly because they pose the greatest threat to “the system of racially stratified state authority.”157 Some commentators further suggest that in the South the death penalty may be imposed more often on African Americans who kill whites “because of a continuing adherence to traditional southern norms of racial etiquette.”158

The second explanation for the harsher penalties imposed on those who victimize whites emphasizes the race of the victim rather than the racial composition of the victim–offender dyad. This explanation suggests that crimes involving African American victims are not taken seriously and/or that crimes involving white victims are taken very seriously. It also suggests that the lives of African American victims are devalued relative to the lives of white victims. Thus, crimes against whites will be punished more severely than crimes against African Americans regardless of the offender’s race. Some commentators suggest that these beliefs are encouraged by the media, which plays up the murders of wealthy whites but ignores those involving poor African Americans and Hispanics. The publicity accorded crimes involving middle-class and wealthy white victims also influences prosecutors to seek the death penalty more often in these types of cases than in cases involving poor racial minorities. According to David Baldus, “If the victim is black, particularly if he’s an unsavory character, a drug dealer, for example, prosecutors are likely to say, ‘No jury would return a death verdict.’”159

Most researchers have failed to explain adequately why those who victimize whites are treated more harshly than those who victimize African Americans. Gross and Mauro160 suggest that the explanation, at least in capital cases, may hinge on the degree to which jurors are able to identify with the victim. The authors argue that jurors take the life-or-death decision in a capital case very seriously. To condemn a murderer to death thus requires something more than sympathy for the victim. Jurors will not sentence the defendant to death unless they are particularly horrified by the crime, and they will not be particularly horrified by the crime unless they can identify or empathize with the victim. According to Gross and Mauro:

In a society that remains segregated socially if not legally, and in which the great majority of jurors are white, jurors are not likely to identify with black victims or to see them as family or friends. Thus jurors are more likely to be horrified by the killing of a white than of a black, and more likely to act against the killer of a white than the killer of a black.161

Bright162 offers a somewhat different explanation. He contends that the unconscious racism and racial stereotypes of prosecutors, judges, and jurors, the majority of whom are white, “may well be ‘stirred up’” in cases involving an African American offender and a white victim.163 In these types of cases, in other words, officials’ and jurors’ beliefs that African Americans are violent or morally inferior, coupled with their fear of African Americans, might incline them to seek or to impose the death penalty. Bright also asserts that black-on-white murders generate more publicity and evoke greater horror than other types of crimes. As he notes, “Community outrage, ... the social and political clout of the family in the community, and the amount of publicity regarding the crime are often far more important in determining whether death is sought than the facts of the crime or the defendant’s record and background.”164

Empirical evidence of racial discrimination in the capital sentencing process has been used to mount constitutional challenges to the imposition of the death penalty. African American defendants convicted of raping or murdering whites have claimed that the death penalty is applied in a racially discriminatory manner in violation of both the equal protection clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment.

These claims have been consistently rejected by state and federal appellate courts. The case of the Martinsville Seven, a group of African American men who were sentenced to death for the gang rape of a white woman, was the first case in which defendants explicitly argued that the death penalty was administered in a racially discriminatory manner.165 It also was the first case in which lawyers presented statistical evidence to prove systematic racial discrimination in capital cases. As explained in more detail in “In the Courts: The Case of the Martinsville Seven,” the defendants’ contention that the Virginia rape statute had “been applied and administered with an evil eye and an unequal hand”166 was repeatedly denied by Virginia appellate courts.

The question of racial discrimination in the application of the death penalty also has been addressed in federal court. In a series of decisions, the U.S. Court of Appeals ruled, first, that the empirical studies used to document systematic racial discrimination did not take every variable related to capital sentencing into account and, second, that the evidence presented did not demonstrate that the appellant’s own sentence was the product of discrimination.167

Just after dark on January 8, 1949, Ruby Floyd, a 32-year-old white woman, was assaulted and repeatedly raped by several men as she walked in a predominately black neighborhood in Martinsville, Virginia.168 Within a day and a half, seven African American men had been arrested; when confronted with incriminating statements made by their co-defendants, all of them confessed. Two months later, a grand jury composed of four white men and three African American men indicted each defendant on one count of rape and six counts of aiding and abetting a rape by the other defendants.

The defendants were tried in the Seventh Judicial Circuit Court, located in Martinsville. Before the legal proceedings began, Judge Kennon Caithness Whittle, who presided over all of the trials, called the prosecutors and defense attorneys into his chambers to remind them of their duty to protect the defendants’ right to a fair trial and to plead with them to “downplay the racial overtones” of the case. He emphasized that the case “must be tried as though both parties were members of the same race.”169

Although prosecutors took Judge Whittle’s admonitions to heart and emphasized the seriousness of the crime and the defendants’ evident guilt rather than the fact that the crime involved the rape of a white woman by African American men, the “racial overtones” of the case inevitably surfaced. Defense attorneys, for example, moved for a change of venue, arguing that inflammatory publicity about the case, coupled with widespread community sentiment that the defendants were guilty and “ought to get the works,”170 meant that the defendants could not get a fair trial in Martinsville. Judge Whittle, who admitted that it might be difficult to find impartial jurors and acknowledged that some jurors might be biased against the defendants because of their race, denied the motion, asserting that “no mass feeling about these defendants”171 had surfaced. Later, prosecutors used their peremptory challenges to exclude the few African Americans who remained in the jury pool after those who opposed the death penalty had been excused for cause. As a result, each case was decided by an all-white jury. The result of each day-long trial was the same: all seven defendants were found guilty of rape and sentenced to death. On May 3, 1949, less than four months after the assault on Ruby Floyd, Judge Whittle officially pronounced sentence and announced that four of the defendants were to be executed on July 15, the remaining three on July 22. Noting that this gave the defendants more than 60 days to appeal, he stated, “If errors have been made I pray God they may be corrected.”172

The next 19 months witnessed several rounds of appeals challenging the convictions and death sentences of the Martinsville Seven. The initial petition submitted by attorneys for the NAACP Legal Defense Fund, which represented the defendants on appeal, charged the trial court with four violations of due process. Although none of the charges focused directly on racially discriminatory practices, allegations of racial prejudice were interwoven with a number of the arguments. Appellants noted, for example, that prior to 1866 Virginia law specified that the death penalty for rape could be imposed only on African American men convicted of raping white women and that even after the law was repealed virtually all of those sentenced to death for rape had been African American. They also stated that the trial judge’s questioning of prospective jurors about capital punishment and subsequent exclusion of those who were opposed to the imposition of the death penalty sent the unmistakable message that “only one penalty would be appropriate for the offenders.”173

These appeals failed at both the state and federal level. The Virginia Supreme Court of Appeals voted unanimously to affirm the convictions. Chief Justice Edward W. Hudgins, who wrote the opinion, vehemently denied appellants’ assertions that the death penalty was reserved for blacks, noting that there was not “a scintilla of evidence” to support it.174 Hudgins also chastised the defendants’ attorneys for even raising the issue, contending that it was nothing more than “an abortive attempt to inject into the proceedings racial prejudice.”175

The defendants appealed the decision to the U.S. Supreme Court, but the Court declined to review the case. This prompted the NAACP attorneys to adopt a radically different strategy for the next round of appeals. Rather than challenging the defendants’ convictions and death sentences on traditional due process grounds, the attorneys mounted a direct attack on the discriminatory application of the death penalty in Virginia. Martin Martin and Samuel Tucker, the NAACP attorneys who argued in support of the defendants’ habeas corpus petition, presented statistical evidence documenting a double standard of justice in Virginia rape cases. Noting that 45 African Americans, but not a single white, had been executed for rape since 1908, Tucker stated that African Americans were entitled to the same protection of the law as whites and concluded “if you can’t equalize upward [by executing more whites], we must equalize downward.”176

In an opinion that foreshadowed the Supreme Court’s decision in McCleskey v. Kemp a quarter of a century later, Judge Doubles, who was presiding over the Hustings Court of the City of Richmond, denied the petition. Judge Doubles stated that there was no evidence of racial discrimination in the actions of the six juries that sentenced the Martinsville Seven to death or in the performance of other juries in similar cases. He then concluded that even if one assumed that those juries had been motivated by racial prejudice, “the petitioners could not demonstrate that an official policy of discrimination, rather than the independent actions of separate juries, resulted in the death verdicts.”177 As a result, there was no constitutional violation.

The case then was appealed to the Virginia Supreme Court and, when that appeal failed, to the U.S. Supreme Court. In January of 1951, the Supreme Court again declined to review the case. Last-minute efforts to save the Martinsville Seven failed. Four of the men were executed on February 2, the remaining three on February 5. “After two years, six trials, five stays of execution, ten opportunities for judicial review, and two denials of executive clemency, the legal odyssey of the Martinsville Seven had ended.”178

The Supreme Court directly addressed the issue of victim-based racial discrimination in the application of the death penalty in the case of McCleskey v. Kemp.179 Warren McCleskey, an African American, was convicted and sentenced to death in Georgia for killing a white police officer during the course of an armed robbery. McCleskey claimed that the Georgia capital sentencing process was administered in a racially discriminatory manner. In support of his claim, he offered the results of the study conducted by Baldus and his colleagues.180 As noted earlier, this study found that African Americans convicted of murdering whites had the greatest likelihood of receiving the death penalty.

The Supreme Court rejected McCleskey’s Fourteenth and Eighth Amendment claims. Although the majority accepted the validity of the Baldus study, they nonetheless refused to accept McCleskey’s argument that the disparities documented by Baldus signaled the presence of unconstitutional racial discrimination. Justice Powell, writing for the majority, argued that the disparities were “unexplained” and stated that “At most, the Baldus study indicates a discrepancy that appears to correlate with race.”181 The Court stated that the Baldus study was “clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.”182

The Court also expressed its concern that accepting McCleskey’s claim would open a Pandora’s box of litigation. “McCleskey’s claim, taken to its logical conclusion,” Powell wrote, “throws into serious question the principles that underlie our entire criminal justice system ... if we accepted McCleskey’s claim that racial bias impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalty.”183 A ruling in McCleskey’s favor, in other words, would open the door to constitutional challenges to the legitimacy not only of the capital sentencing process but also of sentencing in general.

The four dissenting justices were outraged. Justice Brennan, who was joined in dissent by Justices Blackmun, Marshall, and Stevens, wrote, “The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault with a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process.” Brennan also characterized the majority’s concern that upholding McCleskey’s claim would encourage other groups—“even women”184—to challenge the criminal sentencing process “as a fear of too much justice” and “a complete abdication of our judicial role.”185

Legal scholars were similarly outraged. Anthony Amsterdam, who was the lead attorney in a 1968 U.S. Court of Appeals case in which an African American man challenged his death sentence for the rape of a white woman,186 wrote,

I suggest that any self-respecting criminal justice professional is obliged to speak out against this Supreme Court’s conception of the criminal justice system. We must reaffirm that there can be no justice in a system which treats people of color differently from white people, or treats crimes against people of color differently from crimes against white people.187

Randall Kennedy’s analysis was similarly harsh. He challenged Justice Powell’s assertion that the Baldus study indicated nothing more “than a discrepancy that appears to correlate with race,” which he characterized as “a statement as vacuous as one declaring, say, that ‘at most’ studies on lung cancer indicate a discrepancy that appears to correlate with smoking.”188 Bright characterized the decision as “a badge of shame upon America’s system of justice,”189 while Gross and Mauro concluded that “The central message of the McCleskey case is all too plain; de facto racial discrimination in capital sentencing is legal in the United States.”190 (See Box 8.7 for a discussion of the possible remedies for racial discrimination in the application of the death penalty.)

A number of commentators have suggested that the Court’s reluctance to accept McCleskey’s claim reflected its anxiety about the practical consequences of ruling that race impermissibly affected the capital sentencing process.191 The Court’s decision, in other words, reflected its concern about the appropriate remedy if it found a constitutional violation.

The remedies that have been suggested include the following:

1. Abolish the death penalty and vacate all existing death sentences nationwide.

· The problem with this remedy, of course, is that it is impractical, given the level of public support for the death penalty and the current emphasis on crime control. As Gross and Mauro note “Although abolition is a perfectly practical solution to the problems of capital punishment ... it is not a serious option in America now.”192

2. Vacate all death sentences in each state where there is compelling evidence of racial disparities in the application of the death penalty.

· Although this state-by-state approach would not completely satisfy the abolitionists, according to Kennedy, it would place “a large question mark over the legitimacy of any death penalty system generating unexplained racial disparities of the sort at issue in McCleskey.193

3. Limit the class of persons eligible for the death penalty to those who commit the most heinous, the most aggravated homicides. As Justice Stevens suggested in his dissent in McCleskey, the Court could narrow the class of death-eligible defendants to those “categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender.”194

· Although not an “ideal” solution for a number of reasons, this would, as Baldus and his colleagues contend, impart “a greater degree of rationality and consistency into state death-sentencing systems than any of the other procedural safeguards that the Supreme Court has heretofore endorsed.”195

4. Reinstate mandatory death sentences for certain crimes.

· This remedy would, of course, require the Supreme Court to retract its invalidation of mandatory death penalty statutes.

· Kennedy contends that this would not solve the problem, since prosecutors could refuse to charge the killers of African Americans with a capital crime and juries could decline to convict those who killed African Americans of crimes that triggered the mandatory death sentence.196

5. Opt for the “level-up solution,”197 which would require courts to purposely impose more death sentences on those who murdered African Americans.

· According to Kennedy, states in which there are documented racial disparities in the use of the death penalty could be given a choice: either condemn those who kill African Americans to death at the same rate as those who kill whites or “relinquish the power to put anyone to death.”198

The Court’s decision in McCleskey v. Kemp did not mark the end of Warren McCleskey’s odyssey through the appellate courts. He filed another appeal in 1987, alleging that the testimony of a jail-house informant, which was used to rebut his alibi defense, was obtained illegally. Offie Evans testified at McCleskey’s trial in 1978 that McCleskey admitted to and boasted about killing the police officer. McCleskey argued that the state placed Evans in the jail cell next to his and instructed Evans to try to get him to talk about the crime. He contended that because he did not have the assistance of counsel at the time he made the incriminating statements, they could not be used against him.

In 1991 the Supreme Court denied McCleskey’s claim, asserting that the issue should have been raised in his first appeal.199 The Court stated that McCleskey would have been allowed to raise a new issue if he had been able to demonstrate that the alleged violation resulted in the conviction of an innocent person. However, according to the Court, “the violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. The very statement that McCleskey now embraces confirms his guilt.”200

After a series of last-minute appeals, requests for clemency, and requests for commutation were denied, Warren McCleskey was strapped into the electric chair at the state prison in Jacksonville, Georgia. He was pronounced dead at 3:13 A.M., September 26, 1991.

Justice Thurgood Marshall, one of three dissenters from the Supreme Court’s decision not to grant a stay of execution, wrote, “In refusing to grant a stay to review fully McCleskey’s claims, the court values expediency over human life. Repeatedly denying Warren McCleskey his constitutional rights is unacceptable. Executing him is inexcusable.”201

Opponents of the death penalty viewed the issues raised in McCleskey v. Kemp as the only remaining challenge to the constitutionality of the death penalty. They predicted that the Court’s decision, which effectively closed the door to similar appeals, would speed up the pace of executions. Data on the number of people executed since 1987 provide support for this. Although only 25 people were executed in 1987, 11 in 1988, 16 in 1989, 23 in 1990, and 14 in 1991, the numbers began to increase in 1992. As shown in Figure 8.5, 31 people were put to death in 1992, and the number of executions reached a post-McCleskey high of 98 in 1999. Beginning in 2000 the number of executions began to decline, reaching a low of 37 in 2008.202

The U.S. House of Representatives responded to the Supreme Court’s ruling in McCleskey v. Kemp by adding the Racial Justice Act to the Omnibus Crime Bill of 1994. A slim majority of the House voted for the provision, which would have allowed condemned defendants to challenge their death sentences by showing a pattern of racial discrimination in the capital sentencing process in their jurisdictions. Under this provision, in other words, the defendant would not have to show that criminal justice officials acted with discriminatory purpose in his or her case; rather, the defendant could use statistical evidence indicating that a disproportionate number of those sentenced to death in the jurisdiction were African Americans or had killed whites. Once this pattern of racial discrimination had been established, the state would be required to prove that its death penalty decisions were racially neutral. The state might rebut an apparent pattern of racial discrimination in a case involving an African American convicted of killing a white police officer, for example, by showing a consistent pattern of seeking the death penalty for defendants, regardless of race, who were accused of killing police officers.

Opponents of the Racial Justice Act argued that it would effectively abolish the death penalty in the United States. As Senator Orrin Hatch remarked, “The so-called Racial Justice Act has nothing to do with racial justice and everything to do with abolishing the death penalty.”205 The provision was a source of heated debate before it was eventually eliminated from the 1994 Omnibus Crime Bill.

In 1998 Kentucky became the first state to enact a Racial Justice Act. This was followed by the adoption of a similar law in North Carolina in 2009; passage of the North Carolina law was motivated in part by the fact that over a five-year period five African American men on death row were exonerated after having spent a total of 60 years in prison. As of 2010 these are the only states that have adopted such laws.

Both the Kentucky and the North Carolina laws permit the defense to introduce statistical evidence of racial bias in the capital sentencing process. In both states the defense has the burden of proof and the state can rebut the evidence with its own statistical data. A judge determines whether the data prove that the death penalty was sought or imposed on the basis of race.

The North Carolina law allowed defendants who were on death row at the time of the law’s adoption to file racial bias claims. By the August 2010 deadline, 152 of the 159 inmates had filed such a claim.206 Included among those who filed claims was Kenneth Bernard Rouse, an African American who was tried by an all-white jury and sentenced to death for the murder of a 63-year-old white woman. Although Rouse cited these facts in his claim, he also presented more specific evidence of racial bias. His petition claimed that when his lawyer interviewed one of the jurors in his case, the juror used a racial epithet to describe African Americans and said that “Black men rape white women so that they can brag to their friends about having done so.”207 According to Rouse’s attorney, “If the Racial Justice Act covers anything, it covers Kenneth Rouse.”

On June 5, 2000, the U.S. Supreme Court set aside Victor Saldano’s death sentence after lawyers for the state of Texas admitted that the decision had been based in part on the fact that he is Hispanic.208 Saldano kidnapped Paul Green at gunpoint from a grocery store parking lot, took him to an isolated area, shot him five times, and stole his watch and wallet. At his sentencing hearing, a psychologist testified about Saldano’s “future dangerousness.” He noted that blacks and Hispanics were overrepresented in prison and stated that the fact that Saldano was Hispanic was an indicator of his future dangerousness. The Texas Court of Criminal Appeals upheld Saldano’s death sentence, stating that allowing his ethnicity to be used as an indicator of dangerousness was not a “fundamental error.”

In his appeal to the U.S. Supreme Court, Saldano disagreed with that conclusion. He stated that it is “fundamentally unfair for the prosecution to use racial and ethnic stereotypes in order to obtain a death penalty.” The Texas Attorney General conceded Saldano’s point. He admitted that the state had erred and joined Saldano in asking the Supreme Court to order a new sentencing hearing. After the Court’s decision was announced, a spokesperson for the Texas Attorney General’s Office stated that an audit had uncovered eight additional cases that might raise similar issues regarding testimony linking race and ethnicity to assessments of future dangerousness.

Questions about the fairness of the Texas death penalty process have been raised in other forums. During the summer of 2000, for example, the Chicago Tribune published a two-part series that focused on the 131 executions that were carried out during Texas Governor George W. Bush’s tenure.209 (Since 1977, Texas has executed 218 people, which is more than three times the number executed by any other state.210) The report noted that in 40 of the 131 cases the defense attorney either presented no mitigating evidence at all or called only one witness during the sentencing hearing. In 43 of the cases, the defendant was represented by an attorney who had been (or was subsequent to the trial) publicly sanctioned for misconduct by the State Bar of Texas. One attorney, for example, who had been practicing for only 17 months, was appointed to represent Davis Losada, who was accused of rape and murder. Losada was found guilty and sentenced to death after the attorney delivered a “disjointed and brief argument” in which he told the jury: “The System. Justice. I don’t know. But that’s what y’all are going to do.” He later admitted that he had a conflict of interest in the case (he previously had represented the key witness against his client), and in 1994 he was disbarred for stealing money from his clients.

Other problems cited in the Tribune report included the use of unreliable evidence, such as testimony by jail-house informants; the use of questionable testimony from a psychiatrist, nicknamed “Dr. Death,” regarding the potential dangerousness of capital offenders; and the refusal of the Texas Court of Criminal Appeals to order new trials or sentencing hearings despite allegations of fundamental violations of defendants’ rights. The report noted that since Governor Bush took office in 1995, the Court of Criminal Appeals affirmed 270 capital convictions, granted new trials eight times, and ordered new sentencing hearings only six times.

In September of 2000 the Texas Civil Rights Project issued a comprehensive report on “The Death Penalty in Texas” that identified many of the same problems.211 The authors of the report stated that there were “six areas where the probability of error and the probability of wrongful execution grow dramatically”: appointment of counsel to represent indigent defendants; the prosecutor’s decision to seek the death penalty; the jury selection process; the sentencing process; the appellate process; and the review of cases by the Board of Pardons and Parole. The report emphasized that the issue was not “a possible break at one juncture, but a probable break at two or more critical junctures.” To remedy these deficiencies, the Texas Civil Rights Project recommended that Governor Bush call for a moratorium on the death penalty in Texas. They also recommended that Governor Bush appoint a commission to review the convictions of those currently on death row; the commission would be charged with determining whether the defendant’s rights to due process had been violated and whether race and/or social class affected the death penalty process.212 According to the report, “[i]f the State of Texas is going to continue to take the lives of people, then it needs to repair the system ...” The report concluded that “The frightening truth of the matter is that Texas is at greater risk than at anytime [sic] since it resumed executions in 1982 of killing innocent people.”213

Opponents of the death penalty assumed that the Supreme Court’s decision in McCleskey v. Kemp, coupled with the defeat of the Racial Justice Act by Congress, sounded a death knell for attempts to abolish the death penalty. They predicted that these decisions would dampen—if not extinguish—the controversy surrounding the death penalty. Contrary to their predictions, however, the controversy did not die down. In fact a series of events at the turn of the century pushed the issue back on the public agenda:

· In February of 1997 the American Bar Association (ABA) went on record as being formally opposed to the current capital sentencing system and called for an immediate moratorium on executions in the United States. The ABA report cited the following concerns: lack of adequate counsel in death penalty cases; restrictions on access to appellate courts; and racial disparities in the administration of capital punishment.214

· In January of 2000 George Ryan, the governor of Illinois, issued a moratorium on the use of the death penalty in that state. His decision was motivated by the fact that since the death penalty was reinstated in Illinois, 12 people were executed but 13 were exonerated. Governor Ryan, who called for a “public dialogue” on “the question of the fairness of the application of the death penalty in Illinois,” stated that he favored a moratorium because of his “grave concerns about our state’s shameful record of convicting innocent people and putting them on death row.”215 Three years later, Governor Ryan commuted the sentences of all of the state’s 167 death row inmates to life in prison. In March of 2011, Illinois Governor Patrick Quinn signed into law a bill repealing the death penalty.

· In May of 2000 the New Hampshire legislature voted to repeal the death penalty. One legislator—a Republican and a longtime supporter of the death penalty—justified his vote for repeal by saying, “There are no millionaires on death row. Can you honestly say that you’re going to get equal justice under the law when, if you’ve got the money, you are going to get away with it.”216 Although the legislation was subsequently vetoed by the governor, it was the first time in more than two decades that a state legislature had voted to repeal the death penalty.

· In October of 2000 the Texas Civil Rights Project (TCRP) released a report on the death penalty in Texas (see Box 8.8: Death and Discrimination in Texas). The report identified six critical issues, including the competency of attorneys appointed to represent defendants charged with capital murder, that “decrease due process for low-income death penalty defendants and increase the probability of wrongful convictions.” The report called on then-Governor George Bush to institute a moratorium on the death penalty pending the results of two studies, one of which would determine whether race and social class influenced the use of the death penalty in Texas.217

· In 2004 the New York State Court of Appeals ruled that the state’s death penalty statute was unconstitutional. Efforts to reinstate the death penalty through legislation were unsuccessful.

· In 2007 New Jersey became the first state in the nation to pass legislation abolishing the death penalty since the use of capital punishment was reinstated by Gregg v. Georgia in 1976. Two years later, New Mexico also enacted legislation abolishing the death penalty.

· In October 2009 the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962 as part of the Model Penal Code, “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” A study commissioned by the institute said that experience proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.218

As these examples illustrate, concerns about the fairness and accuracy of the capital sentencing process led many to conclude that it was time to rethink the death penalty. This period of “rethinking” spawned two distinct movements, one for reform of the capital sentencing process and one for abolishing the death penalty.

Advocates of reform contend that the capital sentencing process can be “fixed.” While acknowledging that the system is not infallible, they argue that the enactment of reforms designed to ensure that innocent persons are not convicted and sentenced to death will remedy the situation. The reforms that have been proposed include increasing access to post-conviction DNA testing and providing funding to pay for DNA tests requested by indigent inmates; banning the execution of the mentally retarded; and establishing standards on qualifications and experience for defense counsel in death penalty cases.

Typical of this approach is the Innocence Protection Act of 2004 (HR 5107), a package of criminal justice reforms that President George W. Bush signed into law on October 30, 2004. The act was part of the larger Justice for All Act, which had broad bipartisan support in the U.S. Senate and House of Representatives; this bill enhanced protection for victims of federal crimes, increased federal resources available to state and local governments to combat crimes with DNA technology, and provided safeguards designed to prevent wrongful convictions and executions. The Innocence Protection Act (Title VI of the Justice for All Act) has three important provisions. The first provision allows a person convicted of a federal crime to obtain DNA testing to support a claim of innocence, prohibits the destruction of DNA evidence in federal criminal cases while a defendant remains incarcerated, and provides funding to states to help defray the costs of post-conviction DNA testing. The second provision authorizes a grant program to improve the quality of legal representation provided to indigent defendants in state capital cases. The third provision increases the maximum amount of damages that can be awarded in cases of unjust imprisonment to $100,000 per year in capital cases.219

One of the act’s main supporters in the Senate, Patrick Leahy (Democrat from Vermont), characterized the Innocence Protection Act as “the most significant step we have taken in many years to improve the quality of justice in this country.” Leahy added that DNA testing, which he called the “miracle forensic tool of our lifetimes,” had revealed the flaws in the death penalty process. He also stated that the bill’s provisions regarding provision of counsel represent “a modest step toward addressing one of the most frequent causes of wrongful convictions in capital cases, the lack of adequate legal counsel.”226

Opponents of the death penalty consistently note the possibility that an individual will be sentenced to death for a crime that he or she did not commit. Hugo A. Bedau and Michael L. Radelet220 have identified 350 cases in which defendants were wrongfully convicted of a homicide for which they could have received the death penalty or of a rape in which the death penalty was imposed. Of those individuals, 139 were sentenced to die; 23 eventually were executed. Another 22 people came within 72 hours of being executed.

These wrongful convictions include a number of people sentenced to death in the post-Furman era. In 1987, for example, Walter McMillian, an African American man who was dating a white woman, was charged with the death of an 18-year-old white female store clerk in Alabama. In spite of testimony from a dozen witnesses, who swore he was at home on the day of the murder, and despite the lack of any physical evidence, McMillian was convicted after a one-and-a-half-day trial. His conviction hinged on the testimony of Ralph Myers, a 30-year-old with a long criminal record. The jury recommended life in prison without parole, but the judge hearing the case, citing the “vicious and brutal killing of a young lady in the full flower of adulthood,”221 sentenced McMillian to death.

Six years later, Myers recanted his testimony. He said he had been pressured by law enforcement officials to accuse McMillian and to testify against him in court. McMillian was freed in March of 1993, after prosecutors conceded that his conviction was based on perjured testimony and that evidence had been withheld from his lawyers. He had spent six years on death row for a crime he did not commit.

A similar fate awaited Rolando Cruz, a Hispanic American who, along with co-defendant Alejandro Hernandez, was convicted of the 1983 kidnapping, rape, and murder of 10-year-old Jeanine Nicarico in DuPage County (Illinois) Circuit Court. Cruz was twice convicted and condemned to death for the crime, but both verdicts were overturned by appellate courts because of procedural errors at trial. He spent nearly 10 years on death row before he was acquitted at a third trial in November 1995. Hernandez also was convicted twice and sentenced to death once before his case was dropped following the acquittal of Cruz.222

This case attracted national attention for what many believed was the “railroading” of Cruz and Hernandez. Prosecutors presented no physical evidence or eyewitness testimony linking the two to the crime but relied almost exclusively on the testimony of jailhouse informants, who stated that the defendants had admitted the crime, and on questionable testimony regarding a dream about the crime that Cruz allegedly described to sheriff’s deputies. They also ignored compelling evidence that another man, Brian Dugan, had committed the crime. According to one commentator, “The crime had been ‘solved’ by cobbling together a shabby case against Rolando Cruz and Alex Hernandez of Aurora and presenting it to a jury that convicted them and sent them to Death Row.”223

On November 3, 1995, Judge Ronald Mehling, who was presiding at Cruz’s third trial, acquitted Cruz of the charges. In a strongly worded address from the bench, Mehling stated that the murder investigation was “sloppy” and that the government’s case against Cruz was “riddled with lies and mistakes.” He also sharply criticized prosecutors for their handling of the “vision statement” and suggested that investigators had lied about the statement and about other evidence. “What troubles me in this case,” Mehling said, “is what the evidence does not show.”224 Cruz was set free that day; Hernandez was released several weeks later.

One year later, a grand jury handed down a 47-count indictment against three of the prosecutors and four of the sheriff’s deputies involved in the case. The indictment charged the deputies with repeated acts of perjury and alleged that prosecutors knowingly presented perjured testimony and buried the notes of an interview with Dugan that could have exonerated Cruz.225 The defendants, dubbed the “DuPage Seven,” were acquitted of all charges in 1999. Lawyers for Rolando Cruz, Alejandro Hernandez, and Stephen Buckley (a third defendant who had been charged in the crime) then filed a federal civil rights suit. In October of 2000 the DuPage County State’s Attorney agreed to pay the defendants an out-of-court settlement of $3.5 million.

These two cases are not isolated incidents. In April of 2002 Ray Krone, who was convicted and sentenced to death for the murder of a cocktail waitress in 1991, became the 100th former death-row prisoner to be exonerated since 1973. Krone was freed after DNA tests revealed that he was not the killer. In 2005 Derrick Jamison became the 121st death-row inmate to be exonerated. He was freed and all charges were dismissed after it came to light that prosecutors in the case had withheld critical eyewitness statements and other evidence from his attorneys.

A similar approach was taken by the bipartisan commission appointed by Illinois Governor George Ryan after he halted executions in January of 2000. The commission’s report, which was issued in April of 2002, recommended 85 changes in the capital sentencing process in Illinois. Included were proposals to prohibit the imposition of the death penalty based solely on the testimony of a single eyewitness, a jail-house informant, or an accomplice; videotape interrogations of suspects; establish an independent forensics laboratory; and establish a state panel to review prosecutors’ decisions to seek the death penalty. The report also proposed eliminating several categories of capital crimes, including murder committed in the course of a felony. The co-chairman of the commission, Thomas P. Sullivan, a former federal prosecutor, stated that the options were to “repair or repeal” the death penalty. “Fix the capital punishment system or abolish it,” he said. “There is no other principled recourse.”227

In contrast to those who advocate reform of the capital sentencing system, proponents of abolishing the death penalty contend that the system is fatally flawed. To support their position, these “new abolitionists”228 cite mounting evidence of wrongful conviction of those on death row (see Box 8.9), as well as evidence that the death penalty is administered in an arbitrary and discriminatory manner. Like former Supreme Court Justice Harry Blackmun, they argue that it is futile to continue to “tinker with the machinery of death.”

Whereas traditional abolitionists base their opposition to the death penalty on the immorality of state killing, the sanctity of human life, or the inherent cruelty of death as a punishment, the new abolitionists claim that the death penalty “has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.”229 They contend that the implementation of procedural rules, such as those proposed by the advocates of reform, has not solved—indeed, cannot solve—the problems inherent in the capital sentencing process: the post-Furman reforms notwithstanding, “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.”230 Like Justice Blackmun, the advocates of abolition insist that “no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.”231

Concerns about fairness and discrimination in the capital sentencing process prompted death penalty opponents to call not for procedural reforms but for a moratorium on executions in the United States. Although these resolutions typically call for a cessation of executions until reforms designed to ensure due process and equal protection have been implemented, Sarat maintains that they “amount to a call for the abolition, not merely the cessation, of capital punishment.”232

Sarat contends that the reforms needed to “fix” the capital sentencing process—provision of competent counsel for all capital defendants, expansion of death row inmates’ rights to appeal, guaranteed access to DNA testing, and review of prosecutors’ decisions to seek the death penalty—while feasible, are “hardly a likely or near-term possibility.”233 He notes, for example, that one of the reasons the American Bar Association cites in its call for a moratorium on the death penalty is the “longstanding patterns of racial discrimination ... in courts around the country.” To address this problem, the ABA calls for the development of “effective mechanisms” to eliminate racial discrimination in capital cases. Similarly, the National Death Penalty Moratorium Act, which was introduced in both houses of Congress in 2001 but which did not pass, would have set up a National Commission on the Death Penalty; the commission would have been charged with “establishing guidelines and procedures which ... ensure that the death penalty is not administered in a racially discriminatory manner.”234 The problem, according to Sarat, is that it is not clear that any such “mechanisms,” “guidelines,” or “procedures” exist. As he contends,

The pernicious effects of race in capital sentencing are a function of the persistence of racial prejudice throughout society combined with the wide degree of discretion necessary to afford individualized justice in capital prosecutions and capital trials. Prosecutors with limited resources may be inclined to allocate resources to cases that attract the greatest public attention, which often will mean cases where the victim was white and his or her assailant black. Participants in the legal system—whether white or black—demonize young black males, seeing them as more deserving of death as a punishment because of their perceived danger. These cultural effects are not remediable in the near term ...235

Because it may be impossible to ensure that the capital sentencing process is operated in a racially neutral manner, in other words, Sarat and others who embrace the new abolitionism maintain that the only solution is to abolish the death penalty.

The findings of research examining the effect of race on the capital sentencing process are consistent. Study after study has demonstrated that those who murder whites are much more likely to be sentenced to death than those who murder African Americans. Many of these studies also have shown that African Americans convicted of murdering whites receive the death penalty more often than whites who murder other whites. These results come from studies conducted before Furman, in the decade following the Gregg decision, and in the 1980s, 1990s, and beyond. They come from studies conducted in both southern and nonsouthern jurisdictions and from studies examining prosecutors’ charging decisions as well as jurors’ sentencing decisions.

These results suggest that racial disparities in the application of the death penalty reflect racial discrimination. Some might argue that these results signal contextual, rather than systematic, racial discrimination. As noted earlier, although research consistently has revealed that those who murder whites are sentenced to death at a disproportionately high rate, not all studies have found that African American offenders are more likely than white offenders to be sentenced to death.

We contend that the type of discrimination found in the capital sentencing process falls closer to the systematic end of the discrimination continuum presented in Chapter 1. Racial discrimination in the capital sentencing process is not limited to the South, where historical evidence of racial bias would lead one to expect differential treatment, but is applicable to other regions of the country as well. It is not confined to one stage of the decision-making process, but affects decisions made by prosecutors as well as juries. It also is not confined to the pre-Furman period, when statutes offered little or no guidance to judges and juries charged with deciding whether to impose the death penalty or not, but is found, too, under the more restrictive guided discretion statutes enacted since Furman. Moreover, this effect does not disappear when legally relevant predictors of sentence severity are taken into consideration.

With respect to the capital sentencing process, then, empirical studies suggest that the Supreme Court was overly optimistic in predicting that the statutory reforms adopted since Furman would eliminate racial discrimination. To the contrary, these studies document “a clear pattern unexplainable on grounds other than race.”236

Corrections in America: A Portrait in Color

Corrections versus College: A Different View of America

According to Black Star Project Executive Director, Phillip Jackson, in 2007 there were 321 African American men enrolled at Northwestern University (1.7 percent of the student body) but four times that number—1,207—imprisoned at Western Illinois Correctional Center (60 percent of the prison population). Similarly, 41 black men were enrolled at the Art Institute of Chicago (less than 2 percent of the student body), but 1,183 black men were imprisoned at the Illinois River Correctional Center (60 percent of that prison’spopulation). Additionally, 115 black men were enrolled at Bradley University (1.9 percent of the student body), but 1,093 African American men were imprisoned at the Danville Correctional Center (60 percent of the prison’s population).1

The picture presented here is representative of the entire country. Four times as many whites attend college than are under correctional supervision. However, there are more African Americans and Hispanics under some form of correctional supervision than there are attending college. The differences are particularly stark when focusing on males—nearly 20 percent of African American males and 8 percent of Hispanic males are under correctional supervision, whereas less than 3 percent of white males are under correctional supervision. College attendance estimates, however, indicate that fewer than 4 percent of African American and Hispanic males were attending college in 2003, whereas twice as many white males were attending college as there were under correctional supervision.2

Jackson concludes that “the low number of Black students applying to and enrolling in American colleges and universities is shocking.” It not only presents an alarming picture of where we are today, but “it predicts an absolutely disastrous future in the next 10 to 20 years for the Black community. Instead of more Black doctors, lawyers, educators, accountants, business managers, technologists, social workers, and engineers, the Black community will have more government-dependent, unskilled, and unemployed workers.”3

Goals of the Chapter

This chapter describes various disparities in the ethnic and racial makeup of American correctional populations. It examines which groups are overrepresented in situations of incarceration and supervision in the community. The extent of minority overrepresentation also is explored in relation to gender distinctions, federal versus state populations, and recidivism, with an emphasis on historical fluctuations. The juxtaposition of Native American philosophies and methods of correction with the mainstream American criminal justice system is also explored.

After you have read this chapter:

1. You will have a good picture of who is in prison and of the racial and ethnic composition of the prison population.

2. You will be able to discuss intelligently the differences between prison and jail, between probation and parole, and between federal and state prisons.

3. You will understand the special problems involving Native Americans and the corrections system.

4. You will be familiar with the unique issues related to women of color in prison.

5. You will be able to discuss what difference it makes when corrections personnel (prison guards, parole officers) are people of color.

6. Because prison is often the end result of social and economic inequalities, you will have a new perspective on the issues covered in Chapter 3.

The descriptive information in this chapter is supplemented by a discussion of current research on discrimination in the correctional setting. Finally, the inmate social system, which reflects key aspects of prison life, is discussed. This section will focus on the influence of minority group status on prison subcultures and religion.

Describing incarcerated populations in the United States is a complicated task. The answer to the question, “Who is locked up?” depends on what penal institution and which inmates we are discussing. Prison and jail population figures are descriptive counts taken on one particular day, often at midyear. These figures are used for the purpose of describing disparity and are not standardized rates (see discussion later in this chapter). There are a number of important distinctions between prisons and jails, male and female inmates, and state and federal populations. In addition, important changes occur over time.

Prisons and jails are not the same: they serve different functions in the criminal justice system. These differences may result in different levels of minority overrepresentation, so jails and prisons are discussed separately. Gender differences are also important when discussing incarceration; therefore, we also explore the issues of the racial and ethnic composition of male and female prisoner populations. State and federal prison populations must be examined separately because of the differences in state and federal crime.4

In 2009 more than 1.6 million people were incarcerated in federal and state prison and local jails.5 Looking at this population through the lens of race and ethnicity of incarcerated inmates, our primary observation about the prison population in the United States (Table 9.1, column 1) is that African Americans are strikingly overrepresented compared with their presence in the general population. African Americans comprise less than 15 percent of the U.S. population but nearly 40 percent of all incarcerated offenders. Hispanics also are over-represented but not as markedly, representing roughly 15 percent of the U.S. population; however they represent just over 20 percent of the incarcerated population. Conversely, whites (non-Hispanic) are underrepresented compared with their presence in the population—they are more than 70 percent of the general population but just more than one-third (34.2 percent) of the incarcerated population.8

SOURCE: Heather West, Prison Inmates at Midyear 2009—Statistical Tables (Bureau of Justice Statistics, 2010), computed from Table 16.

In “Crime and Punishment: Traditional and Contemporary Tribal Justice,” Ada Pecos Melton observes that in many contemporary tribal communities “a dual justice system exists, one based on an American paradigm of justice and the other based on an indigenous paradigm.”6 The American justice paradigm is characterized by an adversarial system and stands apart from most religious tenants. Crimes are viewed as actions against the state, with little attention to the needs of the victim or community. The focus is on the defendant’s individual rights during adjudication. Punishing the offender is generally governed by a retributive philosophy and removal from society.

In contrast, tribal justice is based on a holistic philosophy and is not easily divorced from the religious and spiritual realms of everyday life. Melton attempts to distill the characteristic elements of a number of diverse American tribal justice ideologies into an indigenous justice paradigm. The holistic philosophy is the key element of this paradigm and supports a “circle of justice” where “the center of the circle represents the underlying problems and issues that need to be resolved to attain peace and harmony for the individuals and the community.” The corresponding values of restorative and reparative justice prescribe the actions the offender must perform to be forgiven. These values reflect the importance of the victim and the community in restoring harmony.

The influence of the American paradigm of justice on Native American communities has a long and persistent history.7 However, the values of restorative and reparative justice are emerging in a number of programs off the reservation. In particular, the restorative justice practices of the Navajo Nation have influenced a number of new-offender rehabilitation programs, including many supported by the Presbyterian Church.

In recent years Hispanics have been the fastest-growing minority group being imprisoned. They were 10.5 percent of the prison population in 1985, 15.5 percent in 1995, 16.4 percent in 2000, and 20.6 percent in 2009. These increases reflect a rate twice as high as the increase for African American and white inmates.9 Little information is available about the number of Asian, Pacific Islander, Alaska Native, and Native American prisoners because they are generally represented in a category collapsed into “Other.” The representation of Asians and Pacific Islanders does not appear substantially greater than their representation in the general population. However, Native American and Alaska Natives are overrepresented compared with their representation in the U.S. population.

Given the changes in racial categories in the U.S. census forms in 2000, prison statistics are starting to reflect the percentage of prisoners who identify themselves as being of two or more races. Although the number seems small at this point, future researchers should note that increased attention to this group is warranted.

The picture of the racial and ethnic composition of prison populations changes slightly when focusing on gender (Table 9.1; columns 2 and 3). Because women make up 9.5 percent of the incarcerated persons, up from 5.7 percent in 1990, we should not generalize patterns from predominantly male populations to females. For example, although prison populations have increased markedly in the last several years, the increase for female inmates is more rapid than for male inmates from 1995 to 2009. Over this nearly 15-year period, female prison populations have increased by more than 50 percent, whereas male populations increased by only one-third of a percent.10

Among female prisoners, similarities and differences exist when comparing their racial and ethnic makeup to the overall (predominately male) prison population. Although people of color represent more than half of the women incarcerated in federal and state prisons, white, non-Hispanic women make up the largest group of female prisoners (45.8 percent). This is the reverse of the male population, in which the largest racial group is African American males (40.1 percent). The percentage of female inmates who identify themselves as African American indicates an overrepresentation of African American females in prison compared with the general population, but the proportion of this overrepresentation is different than the number for the African American male population (32.2 percent compared with 40.1 percent). Notably, the percentage of female prisoners who are Hispanic is lower than the percentage of male prisoners who are Hispanic (13.1 percent compared with 21.4 percent).

Although state prison populations account for the majority (nearly 90 percent) of incarcerated offenders, a look at the racial and ethnic percentages of federal populations alone is warranted. Just as state and federal laws differ, so will their prison populations because they present different offenses and unique sentencing practices (see Chapter 7). An important implication for federal prisoners is that they can expect to serve more of their original sentence than do state inmates (up to 50 percent more).11 Also, federal prison populations are increasing at rates higher than state populations, with higher rates of change in court commitments to federal prison than to state prisons.

Comparisons between state and federal prison populations with regard to racial composition are a challenge. The U.S. Bureau of Justice Statistics (BJS) sources used to estimate the racial and ethnic composition of federal and state prison populations (Table 9.1) reflect the convention of using racial and ethnic status combined (white, non-Hispanic; African American, non-Hispanic; Hispanic, other); however, the Federal Bureau of Prisons uses the convention of measuring race and ethnicity as separate concepts (more like the U.S. census).

The descriptive profile of the federal inmate population presented in Table 9.2 suggests an important correction in the magnitude of racial and ethnic differences in state versus federal prison populations. African Americans do not appear as severely overrepresented in the federal prison population as they do in the profile of state and federal prison populations combined. In short, in the federal population alone, African Americans represent less than 40 percent of the population, whereas state and federal populations combined reveal roughly 46 percent are African American.

When convicted offenders are committed to federal prison, they undergo a classification process that determines, among other things, what type of institution (or security level) they should be assigned to as inmates. Federal Bureau of Prison statistics offer a picture of male inmates of color by security level of the prison they are assigned to, presented in Figure 9.1.13 Roughly the same percentages of inmates, regardless of race, are found in the low- and minimum-security settings (about 25 percent and 10 percent, respectively). However, a larger percentage of African American inmates are in the highest two security levels compared to the white inmates. Thus, although the typical federal prison inmate is white, the typical inmate in the high-security facilities is African American.

The impact of overrepresentation in incarceration settings varies in magnitude and quality. The racial and ethnic profile of prison inmates is to some extent conditioned by how the concepts of race and ethnicity are measured. One of the important implications of the more extreme overrepresentation of Hispanic offenders in federal prison is that offenders sentenced to federal prison serve longer sentences with more time served than those offenders sentenced to state prisons, given that federal prisoners can expect to serve 50 percent more of their original sentence than do state inmates. In short, this detrimental impact of conditions of imprisonment on Hispanics would not have been known if we only examined the demographic profile offered in Table 9.1.

The concept of recidivism can take on different meanings in different settings. Generally, the term is used to refer to offenders who return to offending after experiencing a criminal conviction and the corresponding punishment. Four key distinctions in the research on offender recidivism center on the point in the system we measure as the return to criminal behavior: (1) rearrest for a new crime (either felony or misdemeanor), (2) reconviction (in state or federal court), (3) resentence to prison, and (4) revocation of parole (technical or new offense violation). In a study of recidivism among prisoners released from 15 states, racial differences did emerge in the findings. A group of 272,111 offenders released in 1994 were followed for three years after their release. Findings indicate that compared to white ex-offenders, African Americans were more likely to be rearrested (72.9 percent compared to 62.7 percent), reconvicted (51.1 percent compared to 43.3 percent), resentenced (28.5 percent compared to 22.6 percent), and revoked (54.2 percent compared to 51.9 percent). Conversely, non-Hispanics were more likely than Hispanics to be rearrested (71.4 percent compared to 64.6 percent), reconvicted (50.7 percent compared to 43.9 percent), and revoked (57.3 percent compared to 51.9 percent). There were no significant differences between Hispanics and non-Hispanics in terms of the likelihood of being resentenced (24.7 percent compared to 26.8 percent).16

Currently, federal and state prisons have fairly equitable representation of African American citizens among correctional officers and supervisors, as compared with the general population. Hispanic representation among correctional personnel is still lacking.14 Important goals include ensuring fair employment practices in government hiring and ensuring there are minority decision makers to cause a beneficial (and perhaps less discriminatory) impact on the treatment of minority populations.

A review of the research in the area of attitudes and beliefs of correctional officers toward inmates and punishment ideologies suggests that respondents’ views do appear to differ in many ways on the basis of race. In particular, the author notes that African American officers appear to have more positive attitudes toward inmates than do white officers; however, others have found that black officers expressed a preference for greater distance between officers and inmates than did white officers.15 Additionally, neither white nor African American correction officers seem able to correctly identify the self-reported needs of prison inmates.

Ideologically, African American officers were more often supportive of rehabilitation than their white counterparts. African American officers also appear to be more ambivalent about the current punitive nature of the criminal justice system, indicating that the court system is often too harsh.

In short, current research does not offer a definitive answer to the question of whether minority correctional officers make different decisions. Assuming that differential decision making by correction officers could be both a positive and negative exercise of discretion, at what point are differential decisions beneficial to inmates, and at what point are they unprofessional or unjust? What research could be done to resolve the issue of the presence or absence of differential decision making by correctional officers on the basis of race?

The overrepresentation of African Americans in state and federal prisons is not a new phenomenon. Figure 9.2 illustrates the changing demographic composition of the prison population from 1926 to 2009. Reviewing this figure we can document a disproportionate number of African Americans in the prison population since 1926 (the beginning of national-level data collection on prison populations). The racial disparity has increased in recent years, however. In 1926 African Americans represented 9 percent of the population and 21 percent of the prison population. Over time, the proportion of the prison population of African Americans increased steadily, reaching 30 percent in the 1940s, 35 percent in 1960, 44 percent in 1980, peaking at slightly more than 50 percent in the mid-1990s, and leveling off at about 45 percent in the late 1990s to the present. The representation of African Americans in the general population has never exceeded 15 percent. The African American prisoner population ratio to white prisoner population ratio was 2.5:1.0 in 1926, but it has reached the current ratio of 3:1.17

Dramatic increases in the overrepresentation of African Americans in the prison population have occurred in a context of generally increasing prison population totals and rising incarceration rates since the early 1970s. The incarceration binge seems to be slowing in the first years of the twenty-first century, but it remains at a level of approximately 2 million people incarcerated in state and federal jails and prisons. Although the incarceration binge surely has multiple sources, it may reflect an impact of the war on drugs. Michael Tonry, for example, argues that the war on drugs has had a particularly detrimental effect on African American males. Evidence of this impact, he argues, can be seen by focusing on the key years affected by the war on drugs: 1980 to 1992. During this period, the number of white males incarcerated in state and federal prison increased by 143 percent; for African American males the number increased by 186 percent.18

Statisticians for the BJS argue that the sources of growth for prison populations differ for white and African American inmates. Specifically, drug offenses and violent offenses account for the largest source of growth among state prison inmates. During the 10-year period from 1985 to 1995, “the increasing number of drug offenders accounted for 42 percent of the total growth of black inmates and 26 percent of the growth among white inmates.” Similarly, the number of African American inmates serving time for violent offenses increased by 37 percent, whereas growth among white inmates was at a higher 47 percent.19

As we discussed in Chapters 3 and 4, the differential impact of the war on drugs may result more from the enforcement strategies of law enforcement than from higher patterns of minority drug use. Critics argue that although the police are reactive in responding to robbery, burglary, and other index offenses, they are proactive in dealing with drug offenses. There is evidence to suggest that they target minority communities—where drug dealing is more visible and where it is thus easier to make arrests—and tend to give less attention to drug activities in other neighborhoods.

Another way to describe the makeup of U.S. prisons is to examine incarceration rates. The information offered by incarceration rates expands the picture of the prison inmate offered in population totals and percentages (as outlined previously). Incarceration rates offer the most vivid picture of the overrepresentation of African Americans and Hispanics in prison populations. Rates allow for the standardization of population figures that can be calculated over a particular target population. For example, the general incarceration rate in 2009 was 758 per 100,000 population.20 This number can be further explored by calculating rates that reflect the number of one race group in the prison population relative to the number of that population in the overall U.S. population.

As shown in Table 9.3, over the last two decades African Americans and Hispanics have been substantially more likely than whites to be incarcerated. Although rates for all groups are increasing over time, the current rate for African American males remains the highest, at more than 7 times the rate for white males. Hispanic male rates were 2.5 times as high as the rate for white males but lower than the rate for African American males. Note that female rates of incarceration are substantially lower than male rates, but they are increasing at faster rates over time. In 2009 African American female rates of incarceration were more than 3 times higher than the rate for white females. The rate for Hispanic females was 1.5 times the rate for white females; it was lower than the rate for African American females.

SOURCE: Heather West, Prison Inmates at Midyear 2009—Statistical Tables (Bureau of Justice Statistics, 2010), Table 18.

These total incarceration rates fail to reveal the stark differences that occur among racial and gender groups by age. In Table 9.4 young African American males (ages 20 to 40) have incarceration rates 2.5 times higher than the aggregate rate for African American males and 4 times higher than white males in those age groups. Notably, in 2009 nearly 13 percent of all young black males, ages 25 to 29, were in prison or jail. The incarceration rates for Hispanic and white males also increase for the younger age groups but in less drastic proportions compared to African Americans. Moreover, less than 4 percent of young Hispanic males (ages 25 to 29) and less than 2 percent of young white males (ages 25 to 29) were incarcerated in prisons and jails.21

SOURCE: Heather West, Prison Inmates at Midyear 2009—Statistical Tables (Washington, DC: Bureau of Justice Statistics, 2010), Table 19.

The information in Table 9.4 for females by race and age indicate drastically lower incarceration rates compared to males, but similar patterns emerge within race by age and within age by race. Notably, incarceration rates for African American females are 1.5 to 2.5 times higher than the total incarceration rate for the ages 20 to 40. African American women have the highest incarceration rates by race, regardless of age, with the exception of Hispanic women age 55–59. Incarceration rates also peak during those years for white and Hispanic women, with incarceration rates for white women surpassing Hispanic women from ages 30–40. (See Box 9.1 for information on incarceration rates in other parts of the world.)

In the international arena, the United States consistently has the highest incarceration rate in the world. According to the International Centre for Prison Studies, which reviewed incarceration rates in 216 countries in 2010, the United States has 748 people incarcerated in jails and prisons for every 100,000 people in the general population; in distant second is the Russian Federation at 585 per 100,000 population. America’s neighbors have markedly lower rates, with Canada and Mexico at 117 and 202 people per 100,000 population incarcerated, respectively. Notably, more than half of the world’s countries (57 percent) have incarceration rates of less than 150 per 100,000 population. European countries have among the lowest rates, with England/Wales at 155; France, 96; Germany, 88; Switzerland, 79; Sweden, 78; Norway, 71; Denmark, 71; Finland, 60; and Lichtenstein at 28 per 100,000 population.22

In 2001 The Sentencing Project also calculated that the incarceration rate for African American males in the United States was more than four times the rate of South Africa in the last years of apartheid—that is, in 1993 the incarceration rate for African American males was 3,822 per 100,000 compared to the rate of 815 per 100,000 for South African males. In 2001 the incarceration rate for African American males in the United States soared to 4,848 per 100,000.

The racial disparity in the nation’s prison populations is revealed even more dramatically by The Sentencing Project, which estimates that at some point in their lives, African American males have a 29 percent chance of serving time in prison or jail. Hispanic males have a lower lifetime risk at 16 percent, whereas white males have a 4 percent chance of being incarcerated at some time during their lives.23

Jail populations are significantly different from prison populations. Because jails serve a different function in the criminal justice system, they are subject to different dynamics in terms of admissions and releases. The Annual Survey of Jails reveals that just more than half of inmates are being detained while awaiting trial, whereas just less than half of the daily population of all jail inmates are convicted offenders. Those awaiting trial are in jail because they were denied bail or were unable to raise bail. The other inmates are convicted offenders who have been sentenced to serve time in jail. Although the vast majority of these inmates have been convicted of misdemeanors, some convicted felons are given a “split sentence” involving jail followed by probation. Also, a small number of inmates have been sentenced and are in jail awaiting transfer to state or federal prison facilities.

Because of the jail’s role as a pretrial detention center, there is a high rate of turnover among the jail population. The data used in Table 9.5 represent a static one-day count, as opposed to an annual total of all people who pass through the jail system. Thus, daily population of jails is lower than prisons, but the annual total of people incarcerated is higher.

SOURCE: Todd D. Minton. Jail Inmates at Midyear 2009—Statistical Tables (Washington, DC: U.S. Department of Justice, 2010).

Racial and ethnic minorities are consistently overrepresented in the nation’s local jail populations; at midyear 2009 nearly 6 of 10 people in local jails were racial and ethnic minorities. As Table 9.5 indicates, whereas whites make up the largest proportion of inmates in jails around the country (roughly 43 percent), African Americans are notably overrepresented compared to their representation in the general population. Hispanics represent a slightly higher percentage of the jail population than the general population. These numbers change slightly from year to year; sometimes African Americans make up the largest proportion of jail inmates, so that over time there are roughly the same number of African Americans and whites in jail. The overrepresentation of Hispanics has been higher in some years than 2009 (see 1996), indicating a more serious disparity than that reflected in Table 9.5. Overall, the picture of disparity depicted by these jail numbers is essentially similar to the reflection of race and ethnicity in prison populations. (See “Focus on an Issue: Jails on Tribal Lands” for specific information about tribal jails.) Because of the jail’s function as a pretrial detention center, jail population is heavily influenced by bail decisions. If more people were released on nonfinancial considerations, the number of people in jail would be lower. This raises the questions of racial discrimination in bail setting, which we discussed in Chapter 5. As noted in that chapter, there is evidence that judges impose higher bail—or are more likely to deny bail altogether—if the defendant is a racial minority.

More than 7.6 million people were under correctional supervision in the United States in 2009.24 Over 5 million of these offenders were supervised in the community on the status of parole or probation. Does the pattern of racial and ethnic disparity present in incarceration facilities remain in community corrections?

Parole is a form of early release from prison under supervision in the community. Prison inmates are released to one of two forms of parole: discretionary parole or mandatory parole. The U.S. Department of Justice defines discretionary parole as a decision made by a parole board to “conditionally release prisoners based on a statutory or administrative determination of eligibility,” whereas mandatory parole “occurs in jurisdictions using determinate sentencing statutes. Inmates are conditionally released from prison after serving a portion of their original sentence minus any good time earned.”29 It is not surprising, therefore, that parole populations are similar in racial and ethnic distribution to federal and state prison populations. In 2008 (Figure 9.3) slightly more whites than African Americans were released on parole (41 percent compared to 38 percent). The percentage of the parolee population that is African American has declined over the past 15 years from 45 percent in 1995. Hispanics make up the other roughly 20 percent of parolees. Although African Americans and Hispanics are still overrepresented in parole populations compared to their presentation in the population, the proportions of parolees that are African American and Hispanic are different from the percentages of incarcerated inmates that are African American and Hispanic. Does this evidence suggest that the positive transition to parole is more commonly reserved for white inmates than African American and Hispanic inmates? Given the positive impact of supervised transition back into society to reduce the occurrence of recidivism, are African American and Hispanic inmates who are released from prison after completing their entire sentence without the benefit of parole experiencing a type of discrimination? (See Chapter 1 for types of discrimination.)

SOURCE: Glaze Lauren and Thomas Bonczar, Probation and Parole in the United States, 2008 (Washington, DC: U.S. Department of Justice, 2010), Appendix Table 15.

In 2008 more than 75,400 Native Americans were under correctional supervision (prison, jail, probation, and parole) in the United States (federal, state, local, and tribal authorities combined). Most, 62 percent, were under community supervision (47,000). The population of Native Americans under correctional supervision increasd by 5.8 percent from 2007 to 2008. The U.S. population is approximately 1 percent Native American, and 1.2 percent of inmates in custody in prisons and jails across the United States in 2007 were Native American. Between 2000 and 2008, the survey of jails and prisons indicated that the number of Native Americns grew by 4.4 percent annually.25 The incarceration rate for Native Americans in prison and jail facilities was 21 percent higher than the incarceration rate for all races combined (921 per 100,000 Native Americans compared to 759 per 100,000 U.S. residents).

The picture of jails on tribal lands is presented by the Bureau of Justice Statistics, in “Jails in Indian Country, 2008.” The statutory meaning of “Indian country” (18 U.S.C. 1,151) is all lands within an Indian reservation, dependent Indian Communities, and Indian Trust allotments.26 Currently, nearly 300 Native American land areas / reservations exist across 33 states. Federal regulations limit the jurisdiction and incarceration powers of tribal governments by identity of the victim and offender, the severity of the crime, and location of the crime. Tribal sentencing authority is limited to one year, a $5,000 fine per offense, or both (25 U.S.C. 1,153).27

More than 12,500 people were admitted to jails in the first six months of 2008, with a total of 2,135 people on the census date, June 30. This population is smaller than the number of Native Americans held in locally operated city/county jails, which was estimated at 9,000 for the year 2008.

These offenders were incarcerated in 82 tribal confinement facilities; however, 0.5 percent of the tribal inmate population is held in 33 jails. The largest Native American tribal jail populations are found in Arizona, with additional large institutions in New Mexico and North Dakota. In 2008, 63 percent of inmates being held were convicted offenders, predominantly for misdemeanor offenses. Overall, 40 percent of offenders were held for a violent offense, with 15 percent charged with either simple assault or domestic violence offenses.28

Recent research by Kathryn D. Morgan and Brent Smith examining parole decision making in one southern state found that the significant predictors for setting the parole hearing were seriousness of the original offense, time served, total disciplinary reports, and recommendations from the institutional parole officer; granting the release decision was significantly impacted only by prison personnel recommendations. Race did not have a direct impact on either decision, when controlling for the expected legal/institutional variables.30 This finding is similar to the sentencing research (Chapter 7) that finds that extra-legal variables are the strongest predictors of a decision to incarcerate and length of prison sentence. However, as suggested in the works of Marjorie S. Zatz and Cassia Spohn, the interaction of race with these decision-making factors is also important to consider.31 When partitioning the sample, Morgan and Smith found little evidence or facial patterns in the influences on the parole release decision, but the eligibility for parole release decision does suggest that time since last disciplinary report may have an impact for African American inmates but not for white inmates.

In an analysis of parole timing decisions in one state, Beth M. Huebner and Timothy S. Bynum look at the impact of race in combination with a number of institutional factors. Their analysis found that parole board members were influenced by “measures of the current offense, institutional behavior and the official parole guidelines score.” In addition to these institutional/legal factors, race emerged as a direct and indirect predictor of the parole timing decision. In short, African American “offenders spent a longer time in prison awaiting parole compared with white offenders, and the racial and ethnic differences were maintained net of legal and individual demographic and community characteristics” and “increases with time” Huebner and Bynum place these decisions by the parole board members in a familiar theoretical context: they characterize the parole decisions as being influenced by members’ perceptions of how the dangerousness of the typical black male drug offender impacts community safety (focal concerns theory and perceptual shorthand were discussed in Chapter 7). Additionally, they draw on social context of the social threat perspective (Chapters 2 and 3) and the legal organizational context (legal variables having the most influence on decision making, Chapter 7) to discuss their findings.32

A parolee “succeeds” on parole if he or she completes the terms of supervision without violations. A parolee can “fail” in one of two ways: by being arrested for another crime or by violating one of the conditions of parole release (using drugs, possessing a weapon, violating curfew, and so on). In either case, parole authorities can revoke parole and send the person back to prison.

Parole revocation, therefore, is nearly equivalent to the judge’s power to sentence an offender in the first place because it can mean that the offender will return to prison. The decision to revoke parole is discretionary; parole authorities may choose to overlook a violation and not send the person back to prison. This use of discretion opens the door for possible discrimination.

Most parolees are released from state prisons. Currently, nearly 80 percent of inmates will be released to parole supervision rather than simply being released at the expiration of their sentence. Recent data indicate that 42 percent of all parolees at the state level successfully completed parole. The success rate varied somewhat by racial/ethnic groups: 40.0 percent of whites, 39.0 percent of African Americans, 50.6 percent of Hispanics, and 42.2 percent of other races. The percentage of parole violators by race within one study year indicates that the majority of those violating parole were African American (51.8 percent), with whites representing less than one-third of violators (27.5 percent) and Hispanics representing approximately one-fifth of violators (18.3 percent).33

Both parole and probation involve supervision in the community under a set of specific provisions for client behavior. One of the most common provisions is the requirement of employment. Not being able to attain or retain employment may lead to a violation of supervision conditions and unsuccessful discharge of an individual from probation or parole. Essentially, a person could be sent to prison for being unemployed. It is possible that the employment provision creates uneven hardships for minorities. In 2010 the unemployment rate for U.S. citizens, regardless of race, was 9.3 percent.34 This rate, of course, varies by race and ethnicity: the rate for whites is 8.4 percent; African Americans, 15.4 percent; and Hispanics, 12.7 percent. Unemployment rates also vary by age; youth between the ages of 16 and 24 have higher unemployment rates than the general population. Young people have unemployment rates two to three times higher, with the highest unemployment rates found for young (16 to 19) African Americans at 45.8 percent and young Hispanics at 30 percent; the lowest was for young white males, at 20.8 percent.35 In short, ethnic- and race-specific unemployment rates vary substantially, showing the disadvantaged status of minorities in the labor market. If employment is a nearly universal expectation for probation and parole, does this aspect of the general economy adversely affect defendants and inmates of color when judges make decisions about who is suitable for probation or when parole boards make decisions about who is suitable to be granted parole? If yes, could this be seen as a form of institutional discrimination? (See chapter 1 for discussion of types of discrimination.)

A small number of federal inmates are still eligible for parole consideration. Recent data on federal parole reveal that approximately 78 percent of federal parole discharges were from successful completion of parole conditions. Once again, these rates vary by minority group status. Whites and other races had the highest successful completion rate of 76 percent, followed by Hispanics at 68 percent and African Americans with the lowest at 53 percent. Similarly, African Americans had the highest return-to-prison rates (36 percent), with all other groups exhibiting a return rate of lower than 20 percent.36 (See Box 9.2 for a discussion of supervision of people on parole in the community.)

Probation is an alternative to incarceration, a sentence to supervision in the community. The majority of all the people under correctional supervision are on probation, totaling more than 4.2 million people.37

The racial demographics in Figure 9.4 offer a picture of the probation population with race and ethnicity presented separately. These figures indicate that African Americans are overrepresented (29 percent) in the probation population relative to their presence in the general population. Correspondingly, whites are underrepresented at 56 percent of all probationers and Hispanics are represented at roughly the same as their representation in the population.

SOURCE: Glaze Lauren and Thomas Bonczar, Probation and Parole in the United States, 2008. (Washington, DC: U.S. Department of Justice, 2010), Appendix Table 5

It is immediately apparent that the racial disparity for probation is not as great as it is for the prison population, however. Given that probation is a less severe sentence than prison, this difference may indicate that the advantage of receiving the less severe sentence of probation is more likely to be reserved for whites. In a study of sentencing in California, Joan Petersilia found that 71 percent of whites convicted of a felony were granted probation, compared with 67 percent of African Americans and 65 percent of Hispanics.38 Similarly, Spohn and other colleagues found that in “borderline cases” in which judges could impose either a long probation sentence or a short prison sentence, whites were more likely to get probation and African Americans were more likely to get prison. (See the discussion of discrimination in sentencing in Chapter 7 and Figure 9.4.)

The phenomenon of drug courts in American criminal justice emerged in the late 1980s. Primarily, these specialized courts emerged in response to the growing concern over drug-related cases that were clogging the courts and filling up our jails and prisons and the perception that traditional “War on Drugs” strategies of attacking supply and incarcerating users to control demand was not producing the desired results.

The Drug Courts Program Office of the U.S. Department of Justice defines the drug court approach as departing “from the standard court approach by systematically bringing drug treatment to the criminal justice population entering the court system ... In the drug court, ... treatment is anchored in the authority of the judge who holds the defendant or offender personally and publicly accountable for treatment progress.” Essentially, local teams of judges, law enforcement officials, prosecuting attorneys, defense attorneys, probation officers, and treatment providers are using “the coercive powers of the court to force abstinence and alter behavior with a combination of intensive judicial supervision, escalating sanctions, mandatory drug testing and strong aftercare programs.”39

Starting in 1997, attempts have been made to adapt the drug court curriculum to tribal court settings. Currently, more than 40 programs exist in more than 13 states. A number of adaptations need to be made to incorporate the drug court model to the tribal court setting, but the basic philosophy of therapeutic jurisprudence is a strong complement to many elements of indigenous justice philosophy. First, the naming of drug courts has undergone a transition to the title of “Tribal Healing to Wellness Courts.” This renaming and the subsequent adaptation of procedures are designed to meet the cultural needs of individual Native communities and their long-established traditional Native concepts of justice.

The Tribal Law and Policy Institute notes that the “Tribal Healing to Wellness Courts return to a more traditional method of Justice for Indian people by 1) creating an environment that focuses on the problems underlying the criminal act rather than the acts itself and 2) stressing family, extended family and community involvement in the healing process.” In short, advocates argue that the Tribal Healing to Wellness Courts are “a modern revitalization of Native principles of Justice—truth, honor, respect, harmony, balance, healing, wellness, apology or contrition, restitution, rehabilitation and an holistic approach.” The hope is that the court will function to “restore harmony and balance to individuals, the families and the communities which have been devastated by alcohol and drug use.”40

Tribal Healing to Wellness Courts involve a number of tribal members in the court process, including tribal elders and medicine men, to accomplish the goals of treatment and community service. Usually, part of the treatment component is the mandatory attendance at community activities reflecting traditional, cultural heritage values. Such activities include “traditional healing ceremonies, talking circles, peacemaking, sweats, sweat lodge, visits with medicine men, sun dance and vision quest,” depending on the practices of the individual Native community. Beyond the typical community service requirement of drug courts are the requirements of spending time with elders, tribal storytellers, or both.

All of the methods and procedures adopted by Tribal Healing to Wellness Courts are firmly grounded in traditional dispute resolution mechanisms and traditional spiritual components to promote healing to wellness. The most common issue dealt with in the Tribal Courts is the problem of alcohol abuse. Records indicate that more than 90 percent of the criminal cases that come before tribal courts have an alcohol or substance abuse component. The substance abuse issues are present not just for some adults but also for some children, so some tribes have adopted courts for both groups. Juveniles also have the problem of inhalant use.41

The development of the Tribal Healing to Wellness Courts is often limited by the sentencing authority granted to the tribal courts. These courts have limited jurisdiction to nonmajor crimes on tribal lands and limited influence in off-reservation crimes. The Tribal Law and Policy Institute notes, however, that some Tribal Healing to Wellness Courts have agreements with state court systems to transfer jurisdiction to them when tribal members are involved in substance abuse–related offenses.

Individuals convicted of felonies in the United States may experience a range of sentences from incarceration to probation. Such sentences in effect limit the civil rights of the convicted. No longer do we live in a society that views the convicted felon from the legal status of civil death, literally a slave of the state, but some civil rights restrictions endure after the convicted offender serves a judicially imposed sentence. Collateral consequences is a term used to refer to the statutory restrictions imposed by a legislative body on a convicted felon’s rights. Such restrictions vary by state but include restrictions on employment, carrying firearms, holding public office, and voting.

The Sentencing Project highlights the negative nature of restricting the rights of convicted felons to vote with this dramatic statement:

Nationally, an estimated 5.3 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions. Felony disenfranchisement is an obstacle to participation in democratic life which is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of Black men unable to vote.42

Forty-eight states and the District of Columbia restrict the rights of imprisoned people to vote; more than half of states restrict the right to vote for offenders on probation and roughly two-thirds of states limit this right while on parole.43 In most states the right to vote can be restored (automatically or by petition) after completion of the sentence (or within a fixed number of years). However, in eight states the legal prohibition on voting is permanent. The Sentencing Project reports that although some states allow for the restoration of voting rights to felony offenders who have served out their sentences, the process is not always easy. In the state of Nebraska, the ex-offender has his/her voting rights restored automatically after two years, but in some states the ex-offender has to apply to the Pardons Board for reinstatement.44

In the state of Alabama ex-offenders are required to provide a DNA sample to the Alabama Department of Forensic Sciences as part of the process of regaining the right to vote.45 Additional restrictions on convicted felons were created with the passage of the USA PATRIOT Act. Under these provisions, ex-offenders are unable to attain certain commercial driver’s licenses and are banned from transporting materials designated as hazardous waste.

Given the current increases in incarceration rates across the country, the additional penalty of disenfranchisement for convicted felons becomes an increasing concern. In short, the permanence of this measure may have unanticipated consequences. Because there is an overrepresentation of African American males in U.S. prisons, “significant proportions of the black population in some states have been locked out of the voting booth.” For example, in the state of Florida, which denies voting rights permanently to convicted felons, nearly one-third of the African American male population is not eligible to vote.46 It has been argued that laws such as these, that have the effect of barring a substantial portion of the minority population from voting, fail to promote a racially diverse society. Is this a form of institutional discrimination (see Chapter 1)? Should we change laws that have a racial impact, even if the intent is not racially motivated?

In 2009 Representative John Conyers and Senator Russell Feingold introduced federal legislation to restore voting rights to convicted felons for federal elections. If passed, the Democracy Restoration Act (DRA) will restore federal election rights to over 5 million Americans. Do you support this legislation? Would restoring the vote to these Americans impact presidential elections? Should convicted offenders be allowed to earn back their right to vote as recognition of their efforts at rehabilitation?

Several theoretical arguments are advanced to explain the overwhelming over-representation of African Americans in the correctional system. The most fundamental question is whether prison populations reflect discrimination in the criminal justice system or other factors. One view is that the overrepresentation reflects widespread discrimination; the alternative view is that the overrepresentation results from a disproportionate involvement in criminal activity on the part of minorities. Coramae Richey Mann argues that there is systematic discrimination based on color, whereas William Wilbanks contends that the idea of systematic discrimination is a “myth.”47 The work of Alfred Blumstein offers a benchmark to explore the results of such research. Focusing on 1979 prison population data, Blumstein sought to isolate the impact of discrimination from other possible factors. The key element of his research is the following formula:48

X = ratio of expected black-to-white incarceration rates based only on arrest disproportionality/ratio of black-to-white incarceration rates actually observed.

Essentially, this formula compares the expected black–white disparity (X) in state prison populations based on recorded black–white disparity in arrest rates (numerator) over the observed black–white disparity in incarceration rates (denominator). Thus, accepting the argument that arrest rates are not a reflection of discrimination, Blumstein’s formula calculates the portion of the prison population left unexplained by the disproportionate representation of African Americans at the arrest stage. In short, this figure is the amount of actual racial disproportionality in incarceration rates that is open to an explanation or charge of discrimination.

Overall, Blumstein found that 20 percent of the racial disparity in incarceration rates is left unexplained by the overrepresentation of African Americans at the arrest stage. Crime-specific rates indicate that results vary by crime type:

Arguably, the main implication of this list is that the level of unexplained disproportionality is “directly related to the discretion permitted or used in handling each of the offenses, which tends to be related to offense seriousness—the less serious the offenses (and the greater discretion), the greater the amount of the disproportionality in prison that must be accounted for on grounds other than differences in arrest.”49

This observation is particularly salient in the context of drug offenses. Recall the arguments from Chapter 4 that contend that drug arrest decisions are subject to more proactive enforcement than most offenses. Combine this observation with the fact that during the surge of incarceration rates from 1980 to 1996, the offense with the greatest impact on new commitments to prison was drug offenses. In short, the offense category indicated to suffer from the broad use of discrimination and the most opportunity for discrimination is the fastest-growing portion of new commitments to prison. Thus, Blumstein’s findings, although generally not an indictment of the criminal justice system, suggest an ominous warning for the presence of discrimination during the era of the war on drugs.

Patrick Langan reexamined Blumstein’s argument, contending that he relied on an inappropriate data set. Langan argued that prison admissions offered a more appropriate comparison to arrest differentials than prison populations. Langan also incorporated victim identification data as a substitute for arrest data to circumvent the biases associated with arrest. In addition to altering Blumstein’s formula, he looked at three years of data (1973, 1979, 1982) across five offense types (robbery, aggravated assault, simple assault, burglary, and larceny). Even after making these modifications, Langan confirmed Blumstein’s findings; about 20 percent of the racial overrepresentation in prison admissions was left unexplained.50

In an updated analysis with 1990 prison population data, Blumstein found that the amount of unexplained variation in racially disproportionate prison populations on the basis of arrest data increased from 20 percent to 24 percent. In addition, the differentials discussed earlier on the basis of discretion and seriousness increased for drug crimes and less-serious crimes, becoming smaller for homicide and robbery only. This seems to confirm the argument that the war on drugs has increased the racial disparities in prison populations.51

Tonry challenges Blumstein’s work on several grounds. He argues, first, that it is a mistake to assume that official Uniform Crime Report arrest statistics accurately reflect offending rates. As discussed in Chapter 4, there is evidence of race discrimination in arrests. This is particularly true with respect to drug arrests, which account for much of the dramatic increase in the prison populations in recent years. Second, Tonry points out that Blumstein’s analysis used national-level data. Aggregating in this fashion can easily mask evidence of discrimination in certain areas of the country.

Tonry’s third criticism is that Blumstein’s approach could easily hide “offsetting forms of discrimination that are equally objectionable but not observable in the aggregate.”52 One example would be sentencing African American offenders with white victims more harshly, while at the same time punishing African American offenders with African American victims less harshly (see Chapter 7 for a more detailed discussion). The former represents a bias against African American offenders, and the latter is a bias against African American victims. If we aggregate the data, as Blumstein did, neither pattern is evident.

Darnell F. Hawkins and Kenneth A. Hardy speak to the possibility of regional differences by looking at state-specific imprisonment rates. These authors find a wide variation across the 50 states in the extent of the differential in African American imprisonment rates left unexplained by disproportionate African American arrest rates. The “worst state” was New Mexico, with only 2 percent of the difference explained by the expected impact of arrest. At the other end of the continuum, Missouri was the “best state,” with 96 percent of the incarceration rates of African Americans explained by differential arrest rates. Hawkins and Hardy conclude that “Blumstein’s figure of 80 percent would not seem to be a good approximation for all states.”53

Crutchfield, Bridges, and Pitchford further address the question of whether differential imprisonment rates by race reflect differential offending or differential enforcement with a state and regional level analysis. They use data arrest data (for all index crimes combined and violent crimes only) as well as imprisonment data. In comparison to Blumstein and Langan, who find that “little unwarranted racial disparity in imprisonment rates exists in the United States,” Cruthfield et al. find that, “in some areas the unwarranted disparities are substantial and ... the statistical relationship between arrest and imprisonment rates is quite weak.” Starting with the assumption that arrest figures reflect a reliable indicator of criminal involvement by race, they find that “there is considerable variation among states in the degree to which levels of criminal involvement among Blacks actually explain observed Black imprisonment numbers.” Roughly two-thirds of imprisonment disparity is explained by index crime arrest disparity in national data. Crutchfield et al. note that “40% of states explain less of their observed Black imprisonment via Black involvement in serious crimes than can be explained for the aggregated national observed black imprisonment rate.” While Missisippi, Indiana, and Nevada explain almost all of their observed disparity in imprisonment rate with arrest data, Alaska explains less than 1 percent of its differential imprisonment rate with the index crime arrest data. Additionally, Texas and New Jersey explain less than half of their disparities with index crime arrest data. In the analysis of violent imprisonment data, nearly 90 percent of the discrepancy is explained by differential arrest at the national level. In this analysis one-third of states had lower amounts of observed numbers of imprisonment explained by arrest numbers than the national average. Overall, contextual differences by jurisdiction do still seem to influence differential imprisonment rates across the United States in addition to the differential offense patterns in arrest numbers.54

Doing additional work in this area, J. Sorensen, R. Hope, and D. Stemen explore regional differences in the racial disproportionality of state prison admissions. They find that the Midwestern states have a higher level of racial disproportionality in imprisonment rates, even when controlling for race-specific arrest rates. Their findings indicate that the Midwest has 67.4 percent of racial disproportionality in state prison admissions, followed by 64.3 percent in the Northeast, 61 percent in the South, and 60.2 percent in the West. After looking at possible explanations for this region disparity, Sorensen et al. conclude that these “differences among regions are due to differential involvement in serious crime by race resulting from a higher concentration of ... Blacks relative to whites in the urban areas of the Midwest.”55

Crutchfield and colleagues offer a suitable conclusion to the review of these studies by stating that “racial patterns in imprisonment are substantively important for criminologists, and the perpetuation of unwarranted racial disparities in imprisonment is a critical matter for public policy.”56 These works seem to suggest a combination of differential offending by race and differential enforcement by race. Remember that Chapters 2 and 3 discuss a number of theoretical explanations that help explain the racial gap in offending; Chapters 4–7 discuss a number of theoretical explanations for differential enforcement.

In a similar attempt to look past systematic racial discrimination in the criminal justice system, researchers have begun to explore the intricacies of contextual discrimination. A review by Theodore G. Chiricos and Charles Crawford reveals that researchers have started to study the social context’s impact on the racial composition of imprisonment rates by investigating such issues as the population’s racial composition, the percentage of unemployed African Americans, and the region.57

The first two issues reflect the theoretical argument that communities and thus decision makers will be apprehensive under certain conditions and become more punitive. Specific conditions of apprehension (or threat) are related to racial mass. For example, large concentrations of African Americans will be associated with a higher fear of crime and a need to be more punitive. Raymond J. Michalowski and Michael A. Pearson found that racial composition of African Americans in a state was positively associated with general incarceration rates. However, the impact of racial composition on race-specific incarceration rates is less clear.58 Hawkins and Hardy discovered that states with smaller percentages of African Americans were associated with more racial disparity in incarceration rates that could be accounted for by arrest rates.59 In contrast, Bridges and Crutchfield found that states with higher percentages of African Americans in the general population were associated with lower levels of racial disparity in incarceration rates.60 Miriam DeLone and Theodore Chiricos argue that this inconsistency is the result of an improper level of analysis. They argue that looking at state-level imprisonment and racial composition rates can be deceiving. The proper level of analysis is the level of the sentencing court. In their study of county-level incarceration rates, they found that higher levels of African Americans led to higher levels of general incarceration and African American incarceration rates.61

Race-specific unemployment rates reflect the idea that idle (or surplus) populations are crime prone and in need of deterrence. This line of reasoning requires more punitive response, with higher incarceration rates when the perceived crime-prone population is idle.62 Generally, this “threat” is measured by the unemployment rate of the perceived crime-prone population—young, African American males. DeLone and Chiricos have found that at the county level, high young African American male unemployment rates are not associated with higher general incarceration rates but are predictive of higher young African American male incarceration rates.63 (Box 9.3 details other explanations for the racial distribution of the prison population.)

Historically, some have argued that prison replaced the social control of slavery in the South after the end of the Civil War. Given the criminalization of vagrancy and the operation of the convict lease system, a de facto slavery system was invoked on those African Americas who did not leave the South and who refused to offer their labor to former plantation owners who needed it.64

Others have argued that prison has always been used to supplement the needs of capitalism as a mechanism to control surplus populations in times of high unemployment. Specifically, African American males, who have the highest unemployment rates, have been viewed as socially dangerous surplus populations.65

In the context of the war on drugs, some have argued that the increasing African American male prison populations are a response to a moral panic about drugs that stems from the association of crime and drug use with this population almost exclusively.66

Research on the adjustment of men to life in prison has been available for many years, beginning with Donald Clemmer’s The Prison Community and including Gresham Sykes’s The Society of Captives and John Irwin and Donald Cressey’s “Thieves, Convicts, and Inmate Culture.”67 James B. Jacobs argues that without exception these studies disregarded the issue of race, although the prison populations in the institutions under study were racially diverse. Consequently, according to Jacobs, the prevailing concept of the “prison subculture” needs to be revised. Jacobs further argues that race is the defining factor of the prison experience. Racial and ethnic identity defines the social groupings in prisons, the operation of informal economic systems, the organization of religious activities, and the reasons for inmate misconduct. In other words, white inmates tend to associate with white inmates, African American inmates associate with African Americans, and so on. In this respect, the racial and ethnic segregation in prison mimics society on the outside.68

Goodstein and MacKenzie support Jacob’s observations and argue that their own “exploratory study of race and inmate adjustment to prison demonstrates that the experience of imprisonment differs for African Americans and whites.” They report that although African Americans may develop more antiauthoritarian attitudes, and are more likely to challenge prison officials, they appear to have fewer conflicts with fellow inmates.69

Kevin N. Wright explored the relationship between “race and economic marginality” to explain adjustment to prison. He explored the apparently common-sense assumption that African Americans, because of their experience in the “modern urban ghetto” (see information on the underclass in Chapter 3), will be more “resilient” to the pains of imprisonment. He found that “ghetto life supposedly socializes the individual to engage in self-protection against the hostile social environment of the slum and the cold and unpredictable prison setting.” Using multiple indicators of adaptation to the prison environment, Wright found that although economic marginality does appear to influence the ease of adjustment to prison, this appears to be the case regardless of race.70

Other research on male prison populations also indicates that race may not always explain institutional behavior. Research on the effects of race on levels of institutional misconduct reveals an inconsistent picture. Although some researchers find nonwhites overrepresented in inmate misconduct, Joan Petersilia, Paul Honig, and Charles Hubay’s study of three state prison systems found three different patterns in relationships between race and rule infractions. In Michigan there was no relationship between race and rule infractions; in California whites had significantly higher rule infractions; and in Texas, African Americans had significantly higher rule infractions.71

Timothy Flanagan finds similarly inconsistent results. He argues that inmates’ age at commitment, history of drug use, and current incarceration offense are most predictive of general misconduct rates. He does, however, find that race is an important predictor for older inmates with no drug history and sentenced for an offense other than homicide. Flanagan recommends that race (among other predictors) is a variable that is inappropriate to use in assisting with the security classification of inmates as a result of its low predictive power in relation to institutional misconduct.72

Research of federal prison inmates by Miles D. Harer and Darrell J. Steffens-meier offers support for the importation model of prison violence, indicating that African American inmates are significantly more likely to receive disorderly conduct reports for violence than white inmates are, but they are more likely to have lower levels of alcohol and drug misconduct reports than whites.74 This picture reflects the differential levels of violence and drug behavior between African Americans and whites conveyed in arrest figures and assumed to characterize the general behavior patterns of these groups in American society (see Chapter 2).

Inmate mortality rates are available for state prison and local jail populations. For all causes, regardless of race, 141 per 100,000 inmates die in jails per year and 251 per 100,000 inmates die in prison per year. The average annual figures from 2000–2007 indicate that there are significant racial/ethnic differences for all causes combined, as well as for suicide rates, with few differences for homicide rates. Both suicide and homicide rates have declined steadily since the 1980s. Currently, the rates for suicide are 42 and 16 per 100,000 inmates (jail and prison, respectively), with the rates for homicide at 3 and 4 per 100,000 inmates (jail and prison, respectively).73

Suicide rates are substantially higher for whites in jail and prison than for African Americans inmates (68 per 100,000 jail inmates and 26 per 100,000 prison inmates, respectively, compared to 16 per 100,000 jail inmates and 7 per 100,000 state inmates, respectively). Hispanic inmates have a somewhat lower rate than whites (34 per 100,000 jail inmates and 18 per 100,000 prison inmates) but higher than for African American inmates.

The homicide rate average from 2000–2007 in local jails was reported at 3 per 100,000 population and does not vary across racial/ethnic groups. However, the homicide rates for state prison inmates are higher than the overall rate of 4 per 100,000 population for Hispanics (5 per 100,000 inmates) and whites (5 per 100,000 inmates) and less than the overall rate for African American inmates (3 per 100,000 inmates).

Many correctional observers say that even with the numerical dominance of African Americans in correctional facilities, they are still at a disadvantage in terms of the allocation of resources. For example, Thomas argues that race operates in prison culture to guide behavior, allocate resources, and elevate white groups to a privileged status even when they are not numerically dominant.75

Do the deprivations of prison have a lasting effect on the released inmate? Andy Hochstetler, Matt DeLisi, and Travis C. Pratt offer a contemporary look at the feelings of hostility among released male inmates in an effort to understand how the strains of imprisonment affect the mental health of the released offender and potentially the negative impact on his reintegration.76 Their results indicate that hostility among released prisoners can be explained well by the released inmate’s level of social support. They hypothesize that social support is the key mediating factor between race, age, self-control (control of temper, impulsivity, risk taking, self-centeredness), and perceptions of prison discomfort (sense of deprivation, loss of privacy, boredom, stress, and so on) in predicting low or high levels of hostility. They find that race does not have a directly predictive effect on hostility, but rather that the impact of race is conditioned by social support. These findings suggest that whatever strains exist in the nonwhite released inmate’s experiences they can be mediated by strong social support from family and friends, resulting in less hostility and arguably more chance at successful noncriminal reintegration into society.77 In a similar vein, the discomfort of prison as a source of postrelease hostility can be at least partially neutralized by the presence of social support. These findings support a long-standing push by criminologists to get policy makers to recognize the importance of social support mechanisms to successful prisoner reentry.78

Religion often emerges as a source of solidarity among prison inmates and as a mechanism for inmates to adjust to the frustrations of the prison environment. Although religion may be seen as a benign or even a rehabilitative influence, some religious activities in prison have been met with criticism by correctional officials and accepted only with federal court intervention. Concern arises when religious tenants seem to espouse the supremacy of one racial group over another.

Jacobs argues that the Black Muslim movement in U.S. prisons was a response to active external proselytizing by the church.79 The most influential Muslim movement was the Nation of Islam, founded by Elijah Muhammad. Darlene Conley and Julius Debro point out that although the Nation of Islam was not particularly competitive with Christianity in the nonprison population, “it had special appeal to incarcerated Black males. In contrast to the various religious denominations, which preached religious repentance and submission and obedience to the U.S. justice system ... the Nation of Islam preached Black pride and resistance to white oppression.”80 Prison administrators overtly resisted the movement for several years. The American Correctional Association issued a policy statement in 1960 refusing to recognize the legitimacy of the Muslim religion, based on arguments that it was a “cult” that disrupted prison operations. Jacobs notes that “prison officials saw in the Muslims not only a threat to prison authority, but also a broader revolutionary challenge to American society”81 that led to challenges of the white correctional authority.

Consequently, prison officials tried to suppress Muslim religious activities by such actions as banning the Koran. This led to lawsuits asserting the Muslim’s right to the free exercise of religion. In 1962, however, the U.S. Supreme Court (Fulwood v. Clemmer) ordered the District of Columbia Department of Corrections to “stop treating the Muslims differently from other religious groups.”82 This decision paved the way for the Black Muslim movement to be seen as a legitimate religion and taken seriously as a vehicle of prison change through such avenues as litigation.

One example of the rise and subsequent influence of Native American religious groups can be found in Nebraska. The Native American Cultural and Spiritual Awareness group is composed of Native American inmates who seek to build solidarity and appreciation of Native American values. This group also pursues change in the prison environment through litigation. The element of inmate-on-inmate violence and guard assaults characteristic of other groups are not apparent here.83

As the direct result of litigation, Native American inmates won the right to have a sweat lodge on prison grounds and medicine men and women visit to perform religious ceremonies. The significance of this concession is that it happened four years before federal legislation dictated the recognition and acceptance of Native American religions.

Other religious movements have come to concern prison officials and social commentators because of their apparent assertions of racial supremacy. The impact of such values in a closed environment like a prison is obvious, but concerns have surfaced that the impact of these subcultures may reach outside prison walls. Are groups emerging that promote tenets of racial hatred under the guise of religions?

The Five Percent and Asatru movements are two groups that have prison officials concerned. The former group is made up of African Americans, and the latter is made up of whites, each emphasizing tenets of racial purity. Currently, six states censor the teachings of the Five Percenters, whereas other states label all followers as gang members. The movement began in Harlem in 1964 and has spread across the country, claiming thousands of followers. Teachings include the rejection of “history, authority and organized religion” while calling themselves a nation of Gods (men) and Earths (women). Although the group advocates peace and rejects drinking alcohol and using drugs, correctional officials have linked Five Percenters to violence in some state institutions. Similar to the Nation of Islam, their beliefs stress that “blacks were the original beings and must separate from white society.”84

The Asatru followers practice a form of pagan religion based on principles of pre-Christian Nordic traditions. This religion was officially recognized in Iceland in 1972 and professes nine noble virtues, including courage, honor, and perseverance. However, prison officials claim that as this group has grown in popularity in American prisons, so has racial violence. Some critics charge that “while Asatru is a genuine religion to some followers, these modern pagan groups have been a breeding ground for right-wing extremists” and that they attract white supremacists. Some state prison systems have taken steps to ban Asatru groups, stating security concerns. Some Asatru followers have surfaced in connection with acts of racial violence. Most notably, perhaps, is the recent case of John William King, a white male convicted of the dragging death of an African American man in Jasper, Texas. While serving a prison sentence prior to this crime, King is said to have joined an Odinist group, an Asatru variant. From this affiliation he has tattoos depicting an African American man lynched on a cross and the words “Aryan Pride.”85

Prison gangs are an integral part of understanding the prison environment and the inmate social system. The U.S. Department of Justice describes prison gangs this way

self-perpetuating criminal entities that can continue their operations outside the confines of the penal system. Typically, a prison gang consists of a select group of inmates who have an organized hierarchy and who are governed by an established code of conduct. Prison gangs vary in both organization and composition, from highly structured gangs such as the Aryan Brotherhood and Nuestra Familia to gangs with a less formalized structure such as the Mexican Mafia (La Eme). Prison gangs generally have fewer members than street gangs and OMGs and are structured along racial or ethnic lines. Nationally, prison gangs pose a threat because of their role in the transportation and distribution of narcotics. Prison gangs are also an important link between drug-trafficking organizations (DTOs), street gangs and OMGs, often brokering the transfer of drugs from DTOs to gangs in many regions. Prison gangs typically are more powerful within state correctional facilities rather than within the federal penal system.86

Little systematic information on prison gangs (or security threat groups) is available; however, from the states that do document such subcultures we know that they cover the racial and ethnic spectrum. Some of these gangs have networks established between prisons; across states; and most recently, with street gangs.

The Florida and Texas prison systems offer examples of the variety of prison gangs present in prisons today. The Florida Department of Corrections documented six major prison gangs; one was white, two were African American, and three were Hispanic.87 The Texas prison system documented eight well-established prison gangs; two were white, two were African American, and four were Hispanic. Following are some representative examples.

The Aryan Brotherhood is one of the largest prison gangs and is made up of white males. This group originated in 1967 in the San Quentin State Prison in California. They are present in numerous federal and state facilities. Their membership is dominated by inmates with white supremacist and neo-Nazi ideologies. Identifying tattoos/marks include shamrocks, double lightning bolts, and swastikas. The group is implicated in criminal enterprises in prison (both violence and contraband) and in illegal activities on the outside. This group is thought to be involved in a number of inmate and staff homicides. Although the group maintains economic arrangements with the Mexican Mafia, they are long-time enemies with such groups as the La Nuestra Familia and African American prison gangs such as the Black Guerilla Family.88

The Black Guerilla Family is made up of African American males. It was founded in the San Quentin Prison in California in 1966 by a former Black Panther. This group is distinguished by a predominant political ideology: Marxist/Maoist/Leninist communism. Its goals are to struggle to maintain dignity in prison, eradicate racism, and overthrow the U.S. government. Rival gangs are the Aryan Brotherhood, Texas Syndicate, and the Mexican Mafia. However, the group does form alliances with such groups as the Black Liberation Army and black street gangs.

The Mandingo Warriors is made up of African American males. It came into existence after most of the Hispanic and white groups formed. These members are involved in prison violence and the sub rosa economic system but appear to be less organized than the other race/ethnic groups.89

The Mexican Mafia (nickname La Eme) was formed in the late 1950s in the youth offenders’ facilities of California by former Los Angeles street gang members. The members are male and Mexican American. This group is often identified as the most active gang in the federal prison system. They are described as having a philosophy of ethnic pride and act to control the drug trafficking in the institutions. They have active relationships with the Aryan Brotherhood and urban Latino street gangs. They have intense rivalries with the Black Guerilla Family and black street gangs.90

Neta is a gang composed of Puerto Rican members, reportedly established in 1970 in the Rio Pedras Prison, Puerto Rico. Florida correctional personnel characterize their actions as a cultural organization a façade for criminal behavior. Members are characterized as strongly patriotic and revolutionary with a philosophy of Puerto Rican independence from American rule. Members usually wear beads that are red, white, and blue (the colors of the Puerto Rican flag). The gang emblem is a heart pierced by two crossing Puerto Rican flags with a shackled right hand with the middle and index fingers crossed. They have entrenched themselves in the drug trade and participate in extortion, and they have been suspected of performing “hits” for other prison gangs.91

The Texas Syndicate has its origins in the California Department of Corrections. Once released, these individuals returned to Texas and entered the Texas Department of Corrections as the result of continuing criminal activity. The membership is predominately Hispanic, with the occasional acceptance of white inmates. This group is structured along paramilitary lines, has a documented history of prison violence, and will enforce rule breaking with death. A spinoff associated with this group is the predominantly white gang Dirty White Boys.92

Although little information exists on Native American or Asian / Pacific Islander street gangs, criminal justice personnel remain cautious about their emergence as the presence of street gangs or organized crime is a known avenue of prison gang formation. Indications of Native American prison gangs are found in some Canadian prisons. Asian inmates are often presented as the image of the model prisoner, but more study of these issues is warranted.

One of the management issues associated with dealing with gangs in prison is the tension created by integrating prison populations that prefer to be racially segregated. While self-sought racial segregation is a dominant feature of most residential areas in the United States there are legal issues that structure such segregation decisions in the prison and jail environment. See “In the Courts: Racial and Ethnic Segregation in Prison: By Law or by Choice?” for additional insight into this issue.

Studies addressing the imprisonment of women are less numerous than those for men, but they are increasing in number. Within this growing body of research, the issue of race is not routinely addressed either. When race is assessed the comparisons are generally limited to African Americans and whites. The evidence is mixed on the issue of whether race effects the adjustment of women to prison life.

A series of court decisions have declared de jure racial segregation in prisons to be unconstitutional. As late as the 1970s, prisons in the South and even some in states such as Nebraska segregated prisoners according to race as a matter of official policy. Although such policies have been outlawed, inmates often self-segregate along racial and ethnic lines as a matter of choice. Most recently, the racial segregation policies of the California Department of Corrections (DOC) have been under judicial review.93

In 2005 the U.S. Supreme Court in Johnson v. California ruled that the DOC could not use racial classifications in prison to assign mandatory segregated housing based on race. The DOC was using a race / ethnic–based classification that required mandatory residential segregation for an inmate’s stay in the reception center and for the initial pairing (60 days) of the two-inmate room assignment. The DOC argues that this policy prevents violence within facilities because of the extensive nature of race-based security threat groups (gangs such as the Aryan Brotherhood, Mexican Mafia, and Black Guerilla Family). In short, correctional administrators were arguing that “separate, but equal” treatment of inmates was justified to prevent violence among inmates. Administrators note that all racial/ethnic groups are segregated at the initial phases of admission; “the DOC policy further subdivided ethnic groups so that Chinese Americans were separated from Japanese Americans and Northern California Hispanics from Southern California Hispanics.” Administrators also noted that no other areas in the facilities were segregated, such as the dining hall and the recreation yards.

The U.S. Supreme Court’s opinion striking down this policy was written by Justice Sandra Day O’Connor, where she states for the majority that in the implementation of policies such as these “there is simply no way of determining ... what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. We therefore apply strict scrutiny to all racial classifications to ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.”94

Justice O’Connor also stated in her opinion that “when government officials are permitted to use race as a proxy for gang membership and violence without demonstrating compelling government interest ... society as a whole suffers.” She further contends that the Federal Bureau of Prisons supports the assertion that “racial integration leads to less violence in institutions and better prepares inmates for reentry into society.” The courts’ recommendation is that “race-neutral” remedies be pursued to handle the problems associated with inmate violence. Correctional administrators should strive to avoid policies that may breed racial intolerance.

Given the clear judicial message that correctional administrators cannot pursue “separate, but equal” policies of race / ethnic–based segregation to reduce prison violence, the issue remains—to what extent should integration be required work, housing, recreation, and education assignments? Should administrators allow inmates to make decisions on the basis of personal preference, even if these decisions result in self-segregation? Racial tensions are a serious problem in most prisons; forcing white and African American inmates to share cells, when they are actively hostile to each other, could bring these tensions to a boil. In one instance, a white inmate felt so threatened by the politicized racial atmosphere in his prison that he filed suit asking a federal court to reverse the integration requirement and return to segregation.

However, if correctional administrators bowed to the wishes of inmates on this matter they would create two problems. First, they would be actively promoting racial segregation, which is illegal. Second, they would undermine their own authority by acknowledging that inmates could veto policy they did not like.

What is the best strategy for administrators in this difficult situation? You decide.

Doris L. MacKenzie explains the behaviors (conflicts and misconduct reports) of women in prison on the basis of age and attitudes (anxiety, fear of victimization). She comments that the four prisons she examined are similar in racial composition, but she does not comment on whether she explored differences by race in relation to attitudes and aggressive behavior. Such research ignores the possibility that race may influence one’s perception of prison life, tendencies toward aggression, age of inmate, or length of time in prison.95 MacKenzie and others do, in later works, address race in the demographic description of the incarcerated women. In a study of one women’s prison in Louisiana, for example, they found that nonwhite women were severely over-represented among all prisoners and even more likely to be serving long sentences. Their findings indicate unique adjustment problems for long-term inmates, but they fail to incorporate race into their explanatory observations about institutional misconduct. This omission seems contrary to the observation that nonwhite women are more likely to have longer sentences.96 Race has specifically been recognized as a factor in research addressing the issue of sexual deprivation among incarcerated women. Robert G. Leger identifies racial dimensions to several key explanatory factors in the participation of female prisoners in lesbianism. First, the demographic information reveals that most lesbian relationships are intraracial and that no distinctions emerged by race in participation in the gay or straight groups. Second, once dividing the group by the characteristics of previous confinements (yes or no) and age at first lesbian experience, the pattern of even representation of whites and African Americans changed. African American females were overrepresented in the group indicating previous confinement, and the information about age at first arrest indicates that African American females are more likely to have engaged in their first lesbian act prior to their first arrest.97

The picture of the American correctional system is most vivid in black and white, but it also has prominent images of brown. Such basic questions as “Who is in prison?” and “How do individuals survive in prison?” cannot be divorced from the issues of race and ethnicity. The most salient observation about minorities and corrections is the striking overrepresentation of African Americans in prison populations. In addition, this overrepresentation is gradually increasing in new court commitments and population figures. Explanations for this increasing overrepresentation are complex.

The most obvious possibility is that African American criminality is increasing. This explanation has been soundly challenged by Tonry’s work, which compares the stability of African American arrest rates since the mid-1970s to the explosive African American incarceration rates of the same period. He argues that a better explanation may be the racial impact of the war on drugs.98

Blumstein’s analysis offers another clue to the continuing increase in the African American portion of the prison population, which links discretion and the war on drugs. His work suggests that the racial disparities in incarceration rates for drug offenses are not well explained by racial disparities in drug arrest rates. Thus, the war on drugs and its impact on imprisonment may be fostering the “malign neglect” Tonry charges.99