ANSWERING THE HARD QUESTIONS: RACE AND THE DEATH PENALTY
“By reserving the penalty of death for black defendants … or for those convicted of killing white persons, we perpetuate the ugly legacy of slavery – teaching our children that some lives are inherently less precious than others.” -Rev. Joseph E. Lowery, Former President, Southern Christian Leadership Conference
Over 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims generally are white.
Underlying the statistical evidence is the differential treatment of African-Americans at every turn:
- African Americans now make up 50% of Tennessee’s death row population but only 17% of its total population
- Between 2007 and 2017, eight of the nine new death sentences handed down in the Tennessee were given to Black defendants.
- Half of Tennessee’s current death row comes from Shelby County. Historically, Shelby County is also among the 25 counties in the U.S. with the most recorded lynchings between 1877 and 1950.
Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in serious criminal and capital cases. The staff of Equal Justice Initiative (EJI) has looked closely at jury selection procedures in eight southern state, including Tennessee. EJI uncovered shocking evidence of racial discrimination in jury selection in every state, including counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service; majority-black counties where capital defendants nonetheless were tried by all-white juries; and some prosecutors employed by the state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias.
To watch a 2021 presentation by Ngozi Ndulue on Death Penalty Information Center’s report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty,” you can visit https://youtu.be/O_qEwgNZnn4
CASES OF RACIAL BIAS IN DEATH SENTENCING
In 2016, the U.S. Supreme Court overturned the conviction and sentence of Georgia death row inmate, Timothy Foster, when it was discovered, that during the jury selection process, prosecutors struck all potential African American jurors from service, a practice which is unconstitutional but hard to prove.
Texas death row inmate Duane Buck had his 1995 death sentence reduced to life in prison by Harris County prosecutors after appeals that went all the way to the U.S. Supreme Court. These appeals were based on allegations of racist testimony from an expert witness who claimed that Buck was more likely to be a future danger because he is black.
In a motion filed by lawyers on behalf of Johnny B. Gates in Georgia on March 19, 2018, handwritten notes by prosecutors revealed that, during the jury selection process, prospective African American jurors were referred to as “slow,” “ignorant,” “con artist” and “fat.” Prosecutors also jotted a “B” or an “N” next to African American names on jury lists with the intent to exclude these individuals from jury service in seven death penalty cases against black defendants in the 1970s.
TENNESSEE CASE: ABU-ALI ABDUR’RAHMAN
In 1987, the state of Tennessee sentenced Abu-Ali Abdur’Rahman to die. Mr. Abdur’Rahman’s trial was anything but just, lacking both crime scene evidence and any presentation of his history of mental illness resulting from the violent abuse he endured as a child. The prosecutor engaged in misconduct, including pretrial misrepresentations, withholding evidence, altering testimony, and offering inadmissible information to the jury, while also relying on racial bias in the jury selection process. Today, eight of the jurors who sentenced Mr. Abdur’Rahman to death say they would not have done so if they had heard all the facts.
In August 2019, Davidson County District Attorney General Glenn Funk agreed to convert Mr. Abdur’Rahman’s death sentence to three consecutive life sentences, a decision that was approved by the court. General Funk openly addressed the injustice of Mr. Abdur’Rahman’s trial, stating, “Overt racial bias has no place in the justice system. Further, and most importantly, the pursuit of justice is incompatible with deception. Prosecutors must never be dishonest to or mislead defense counsel, courts, or juries.”
But a few weeks later, in an unprecedented move, Tennessee Attorney General Herbert Slatery appealed the court’s decision and declared his intention to seek an expedited legal process in order to execute Mr. Abdur’Rahman on April 16, 2020 (The TN Supreme Court has currently issues a stay of execution.) The Attorney General then requested that nine more execution dates be set, including execution dates for all four inmates on Tennessee’s death row from Davidson County. This request appears to be a retaliatory move by the state to undercut General Funk from making any other deals with death row inmates, who may also have been subjected to similar injustices.
Learn more about Abu-Ali’s case at justiceforabu.org.
Tennessee Case: Pervis Payne
For 33 years, Mr. Payne has consistently said he did not commit this crime and instead, that he happened upon the crime scene and tried to help.
For decades, the evidence in this case went untested for DNA. Last year, the Shelby County Criminal Court ordered testing. On Jan. 19, 2021, Mr. Payne’s lawyer’s submitted the results of the testing to the court, which included male DNA from an unknown third party. However the DNA was too degraded to identify an alternate suspect using the FBI’s database. The State is unable to account for the most critical evidence, the victim’s fingernail clippings, that have mysteriously gone missing. These clippings are crucial to determining the actual perpetrator as the prosecution argued at trial that the victim had scratched her attacker.
The prosecution employed racial stereotypes to portray Mr. Payne, a Black man, as a hypersexual and violent drug user, who attacked a white woman when she refused him sex. The prosecution repeatedly highlighted the victim’s “white skin” when referring to parts of her body during the trial, while painting a portrait of Mr. Payne as a drug-using, aggressive, hypersexual Black man, though there was no evidence to support that characterization.
The use of racial stereotypes contributes to wrongful conviction. Innocent Black people are seven times more likely to be wrongfully convicted of murder than innocent white people, according to the National Registry of Exonerations. Studies have also found that the race of the victim influences the likelihood of the death sentence being applied. Nearly 300 Black people accused of murdering white people have been executed since 1976 — approximately 14 times more than the number of white people executed for murdering white people — the Death Penalty Information Center reported.
Learn more about this case at pervispayne.org