“All four of the men that I’ve sent to death row have been Caucasian,” D.A. Al Schmutzer pronounced on Tuesday at UTK. Obviously, there is no racial problem with the death penalty’s application in Schmutzer’s district, and therefore there shouldn’t be one anywhere else, right? I mean the majority of people on Tennessee’s death row are white (as Schmutzer pointed out), how could there be a racial bias in the death penalty system?

Well, we all know that it isn’t quite that simple. While it is true that whites make up the majority of Tennessee’s death row population, they only make up about 60% of death row. African-Americans make up approximately 40%, while only accounting for 17% of the overall population. Blacks are over-represented on Tennessee’s death row (and in fact on death rows across the country).

“Well,” our D.A. or death penalty advocate will say, African-Americans commit more murders. The system isn’t biased. It captures people who commit crimes.”

OK. Let’s look at that for a minute. Let’s talk some more numbers. If we want to be fair, our system should value all life as equal. In other words, a person who murders a white person should be treated the same as someone whose victim in African-American right?

But wait! African-Americans represent nearly 50% of murder victims. How can we possibly reconcile the fact that only 14% of those on death row are there for the murder of black victims. And 81% for murdering whites!? Who are we kidding? Our system says that if you take a white life, you pay with your life, but taking the life of a person of color isn’t nearly as bad. In fact, studies have found that a black defendent who murders a white victim is 7 times as likely to get the death penalty as a white who murders a black victim. No one got the chance to ask D.A. Schmutzer what race the victims in his four cases were. Too bad.

Still, I think this takes us to a deeper point. I do not think that most D.A.s are racists. Al Schmutzer seemed to me to be a decent man. But institutions can still be racist even if individual people don’t make decisions overtly based on race. Despite the Supreme Courts shocking decision in McKlesky v. Kemp, which said that mere disproportionality was not evidence of racial bias in individual cases, it would be nearly impossible for us to say that today’s death penalty is applied fairly across racial lines. Our criminal justice system has consistently treated minorities differently from whites, and it is time that all district attorneys, judges, sheriffs, wardens, and everyday citizens face up to the fact even if it will necessitate an overhaul of the criminal justice system. The court, in the McKlesky decision, in effect, said that acknowledging that disparate treatment was evidence of a biased system would call for the scrapping of the entire system. On that point, they were absolutely right.

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