By Robert J. Smith
Back in 1987, Timothy Foster was a poor, black, intellectually impaired teenager facing trial for the murder of an elderly white woman in rural Georgia. During jury selection, the prosecution highlighted in green the name of every black person on the jury list and helpfully added a note explaining that a green highlight meant the person was black. For good measure, they also placed a B next to each black person’s name and circled the word black where it appeared on the jury questionnaires as a racial identifier. Then, in case “it [came] down to having to pick one of the black jurors,” the prosecutors also ranked blacks against one another. After securing an all-white jury, prosecutors argued for the death penalty for Foster to “deter other people out there in the projects.” The U.S. Supreme Court is expected to decide soon whether illegal race discrimination infected that trial, a decision that will come after Foster has spent nearly three decades on Georgia’s death row. It seems likely the court will grant Foster a new trial, but it’s hard to imagine even a favorable Supreme Court ruling in his case fixing the biggest problem with the death penalty itself: Even in 2016, its use remains inextricably, hopelessly intertwined with our national legacy of racial bias and exclusion.
The mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases and racial cynicism into the electorate. It undermines not only the legitimacy of the death penalty, but also the legitimacy of the government as an entity capable of rendering impartial justice. It robs people of the right to participate in their government, and it makes whole swaths of people cynical about the government itself and their role in it. Yet, even if the Foster case provides another rebuke of the illegal practice of striking jurors because of their race, 30 years of experience suggests that the court’s case-by-case reversals will not eradicate racial discrimination in jury selection. It still happens all over the country and continues to taint our broken death penalty system.
As older cases like Foster’s move toward execution dates, the inextricable ties between race and the death penalty in America become increasingly salient. This is because the death penalty generally is in decline at a time when there is heightened attention to racial unfairness throughout the criminal justice system. Consider the last couple of months alone:
- On April 12, Georgia executed Kenneth Fults—another poor, intellectually impaired black man—even though a juror in his case acknowledged deciding to vote for death before hearing the evidence because “that’s what that nigger deserved.”
- “A dumb nigger” is what one member of an all-white South Carolina jury called Johnny Bennett, a black defendant who received relief from a federal judge in March because the prosecutor called him a monster, caveman, “beast of burden,” and “King Kong.”
- Last month, the U.S. Supreme Court rescheduled its review of a petition urging the justices to intervene in a Harris County, Texas, death penalty case where a psychologist testified that Duane Buck’s blackness makes him more dangerous.
An optimist might hold out hope that although racial bias infects these older cases, the ties between race and the death penalty have loosened in more recent cases as the nation continues to make racial progress. Unfortunately, though, while the death penalty has become increasingly rare in practice, many of the remaining cases are still intertwined with the nation’s long legacy of racism. And, even in the cases with explicit, unconscionable racial bias—for example, the execution of Fults last month—current elected prosecutors, governors, and state and federal courts have failed repeatedly to intervene or object.
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