Executing four white men won’t erase death penalty racism

In this moment, when police violence against Black people finally has gained the attention of the nation, we desperately need leadership from the federal agency charged with vindicating civil rights. But the Department of Justice (DOJ) has done nothing to address unconstitutional policing by law enforcement agencies across America. Whereas the Obama administration secured 14 consent decrees to remedy systemic abuses by police departments and monitor reforms, under President Trump, DOJ has not sought a single consent decree against a police department. 

Against this backdrop, Attorney General William Barr now seeks to jumpstart the federal death penalty, the ultimate sanction in our criminal justice system. He has scheduled executions for July 13, 15 and 17 and then a fourth in August. All of the men scheduled to be executed are white.

At the NAACP Legal Defense and Educational Fund, Inc. (LDF), we know that the death penalty in this country appears to be shaped by anti-Black racism, and the federal death penalty is no different. By singling out four white men for the first executions since 2003, is the government trying to obscure this reality?

LDF — which despite its name is a wholly separate entity from the NAACP — has a history of opposing the death penalty. The organization was founded by Thurgood Marshall, who defended many Black men sentenced to death in the Jim Crow South. LDF later challenged Georgia’s death penalty in the case of Warren McCleskey, proving that prosecutors were far more likely to seek the death penalty in cases involving Black defendants and white victims. In a notorious 5-4 decision, the Supreme Court turned away Mr. McCleskey’s claim. The court openly acknowledged what Justice Brennan characterized as “a fear of too much justice” were the claim to succeed, given the role of race in our criminal justice system generally. 

More recently, LDF successfully represented Duane Buck, who was sentenced to death in Texas after his own “expert” told the jury he was more likely to commit acts of criminal violence because he is Black. As police violence against Black people fills our front pages, cases such as these still fill our courts and our nation’s death rows.

This includes the federal death row. The U.S. Code creates dozens of federal capital offenses, including first-degree murder and felony murder crimes ordinarily prosecuted in state court. The result is that DOJ has enormous discretion, which it appears to have exercised in predictably discriminatory ways. A review by the Federal Death Penalty Resource Counsel found that, in over two-thirds of the more than 500 cases between 1988 and 2019 where the attorney general authorized federal prosecutors to seek death, the defendant was Black or Latinx. The majority of people on federal death row today are Black or Latinx. 

The pattern is particularly stark in the three hot spots for the federal death penalty — Texas, Virginia and Missouri — which combined account for nearly half of all federal death sentences. In Texas over the past 30 years, 75 percent of federal death sentences were imposed on Black or Latinx men. All seven of the current death row prisoners from Virginia are people of color. Every person under a federal death sentence from the Eastern District of Missouri is a Black man.

Federal capital prosecutions also are characterized by another disturbing hallmark of our nation’s criminal justice system: denying full citizenship to African Americans by excluding or limiting jury participation. Studies have shown that prosecutors in many jurisdictions continue to use peremptory strikes at alarming rates to remove African Americans from juries, especially in death penalty cases. When the government federalizes what should be a state prosecution, the effect is often similar. 

Three Black men are on federal death row because they were convicted of killing a white person during a bank robbery in St. Louis. The population of St. Louis is more than 45 percent Black. But, because the cases were tried in federal court, the jury pools were drawn from the larger judicial district, where Black people represent only a small fraction of the population. At least one of the three men was convicted and sentenced to death by an all-white jury. 

Barr’s Justice Department appears to have taken no steps to find out why these trends continue or how it could stop them. Instead, it chooses to restart executions and selects four white men as its first targets. But their cases highlight the arbitrariness of the death penalty and underscore why LDF long has been categorically opposed to its use. Among other things, prosecutors apparently used junk science to obtain death sentences. Juries were deprived of key information about the men’s moral culpability. One of the men set to be executed reportedly has advanced dementia, and another man’s execution is opposed by victims’ family members, the trial judge and the lead trial prosecutor who sent him to death row.

Sending these four white men to their deaths will not address the racism that inheres in the federal death penalty. Much less will it respond to the crisis of police violence against Black people that is testing the soul of our democracy. It will simply result in the deaths of four white men — and open the door to further executions of the mostly Black and Latinx men on the federal death row. If ever there were a time for the federal government to stop the machinery of death, that time is now.

Samuel Spital is director of litigation at the NAACP Legal Defense & Education Fund, Inc.