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By Brian Stull, ACLU Capital Punishment Project

Last week, South Carolina pardoned two great-uncles of radio personality Tom Joyner, both executed in 1913 for a murder they did not commit.  The two African-American men had been falsely accused and wrongfully convicted of killing a white Confederate Army veteran.  Historical records demonstrate that the authorities probably declined to prosecute the most likely suspects to avoid revealing that the victim was having an affair with a young black woman in the community.  

This was 1913. This was South Carolina. But even with a black president governing in a purportedly post-racial world, race still plays a major role across the country in who lives, who dies and even who gets charged with a capital crime.

In the United States, each death-penalty state, as well as the federal government, has its own capital-sentencing statute and procedure. But what proves consistent throughout these various systems is the insidious influence of race on the decisions about who lives and who dies. Race looms large north and south, in the past and now, and whether the accused is innocent or guilty.  

Nationally, studies consistently demonstrate that, everything else being equal, a defendant is approximately four times more likely to get the death penalty for killing a white person than for a black person. The racial configuration by far the more likely to result in a death sentence is a black defendant and a white victim. Studies of jurors from across various death penalty states demonstrate that in "black on white" murder cases with six or more white male jurors, juries issue a death sentence 78.3 percent of the time. But if three or more jurors were black males, the overproduction of death sentences disappears.  

Under Connecticut's capital sentencing statute, black defendants have received death sentences at three times the rate of white defendants in cases with white victims. From 1995 to 2001 in New York (which has since abolished the death penalty) the state sought the death penalty twice as often when the victim was white as when the victim was black  Historically, New York's numbers mock the principle of equal justice under the law: From 1890 to 1963 (when New York last performed an execution), 90.4 percent of executions were for the killing a white person, and 80 percent of those executed were black.  

Under modern federal death penalty statutes as well, a majority of those sentenced to death have been people of color, a majority of those receiving a life plea have been white, and the government has sought the death penalty at an increased rate when the victim was white. (See the ACLU's 2007 report, The Persistent Problem of Racial Disparities in the Federal Death Penalty.)

The evidence of race's role takes definitive shape in individual cases also. For example, an Ohio case shows that the life of a black person has less value than that of a white person when deciding if a crime is capital. Gregory McKnight, a black man, was convicted of the separate murders of a young white woman and a young black man. Based on an extraordinarily tenuous theory that could have applied to either murder, the State charged McKnight with the aggravated kidnapping murder of the young white woman (but not of the young black man), and thereby obtained a death sentence  

During the last two years, three men, including ACLU client Levon "Bo" Jones have been exonerated  from North Carolina's death row: All three were falsely convicted of killing white victims. Jones was convicted and sentenced to death by an all white jury.  

In a Texas case, a federal appeals court ruled that the State must grant a new trial to a Latino defendant who was sentenced to death based upon "expert" testimony that Latinos pose a greater threat of future dangerousness than whites.  

As Justice Anthony Kennedy recognized in a recent Supreme Court case regarding school integration, race still matters in American society. Regrettably, race will likely still matter a century from now. The only surefire way to avoid further fatal mistakes like these, and to eradicate the role of race in the death penalty, is to abolish the death penalty itself.

Originally posted to ACLU on Thu Oct 22, 2009 at 08:10 AM PDT.

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