Race and Death Sentencing

Race and Death Sentencing1

Isaac Unah

Robert Bacon and his girlfriend, Bonnie Clark, were each tried and convicted of first-degree murder in Onslow County, North Carolina in 1991 for the 1987 killing of Glennie Leroy Clark, Bonnie’s estranged husband. According to court and other public records, the murder was suggested, planned, and instigated by Bonnie because Glennie (reportedly an alcoholic) had physically and emotionally abused her and their two children during the marriage.2 Robert had never been involved in criminal activity before and was reluctant to help Bonnie kill her husband. But Bonnie persisted. She informed Robert that she was the beneficiary of a $50,000 life insurance policy on Glennie, which they could use together. Eventually, Robert agreed to help but only after Glennie had called him by a racial epithet during a heated encounter. Ultimately, the attack on Glennie was carried out by both defendants.

After Bacon was arrested, he quickly confessed to having stabbed Glennie. He showed contrition and cooperated fully throughout the investigation and trial proceedings. Bonnie, on the other hand, lied and prevaricated with the police about her involvement. One officer said: “She played us for dummies.”

Under North Carolina law, Robert Bacon and Bonnie Clark both faced the possibility of a death sentence irrespective of who actually inflicted the fatal stab.3 Following the penalty phase of the trial, the jury sentenced Robert (who is black) to death. In a separate proceeding and with a different jury, Bonnie (who is white) was sentenced to life in prison. In this introductory section, I shall discuss the circumstances surrounding Robert Bacon’s death sentence as a way of demonstrating how, during a criminal trial, race can influence sentencing outcomes. Ultimately, my goal in this chapter is to investigate, through analysis of statistical data, whether race continues to matter in death sentencing in North Carolina, even after significant legal reforms designed to end racial bias have been implemented. I also hope to identify other factors besides race that may explain death sentencing.

Since Robert and Bonnie were tried separately and by different juries, we cannot simply conclude based solely on the different outcomes that racism determined the outcome. However, we cannot rule out the influence of race entirely. To be sure, the difference in outcomes could have been attributed to case facts such as the quality and effectiveness of defense attorneys handling the cases, the extent to which the jurors actually understood the judges’ instructions, and the number of aggravating versus mitigating circumstances found in each case. When we scrutinize Robert Bacon’s case closely, however, we find evidence suggesting that race did indeed play a role in his death sentence. The evidence was a notarized affidavit from a juror, Pamela Bloom Smith, who participated in the trial and had voted in favor of death.

Robert Bacon had been on death row for about 10 years and was scheduled to die on May 18, 2001. On May 9, 2001, Pamela Bloom Smith came forward and made her declaration about the nature of the jury deliberations:

I remember during our deliberations there was discussion of the fact that Bacon was dating a white woman. This topic came up after the first vote. A female juror first brought up the issue. Some jurors felt it was wrong for a black man to date a white woman. Jurors also felt that black people commit more crime and that is it typical of blacks to be involved in crime. We talked about this for at least ten to fifteen minutes and some jurors were adamant in their feeling that Bacon was a black man and “he deserved what he got”. I understood this to mean Bacon should receive the death penalty.4

She further declared that “she felt that the jurors who expressed these attitudes about race believed that these views justified the death penalty” and that she was “offended by the discussion” but voted for the death penalty only because of intense pressure from other jurors.

These facts raise questions of whether equal justice was served under the law and whether, under rules governing clemency, Robert Bacon’s death sentence should be commuted to life in prison without parole. The United States Supreme Court established a key legal standard for handling claims of racial discrimination in death penalty cases in McCleskey v. Kemp (1987). McCleskey, a black male Georgian convicted of killing a white police officer, presented in his defense a comprehensive statistical study of Georgia’s death penalty system conducted by Professor David Baldus and his colleagues (Baldus, Woodworth, and Pulaski 1990). The study showed significant evidence of racial discrimination by prosecutors and juries in Georgia. Ultimately, the Court rejected the study’s relevance to McCleskey’s case and ruled 5 to 4 that a defendant must demonstrate evidence of racial bias in his or her own case rather than rely on group-based statistical evidence when seeking material alteration of a criminal sentence.

By virtue of the McCleskey decision and Pamela Smith’s declaration, Robert Bacon appeared to have a chance at clemency. He submitted a petition for clemency to the Office of North Carolina Governor Mike Easley through his attorneys. North Carolina’s Constitution vests the authority to grant clemency in the governor.5 It is an important discretionary power. However, for political reasons, governors in North Carolina and in other states are reluctant to grant clemencies because it is often not in their strategic interest. The fear is that political opponents might cast the governor as soft on crime, especially if the convict whose sentence is commuted later commits another violent crime. Despite this risk, Governor Mike Easley granted Robert Bacon’s clemency petition and commuted his death sentence to life in prison without parole based largely on Pamela Smith’s declaration.

In light of the contentious history of race relations in North Carolina and in the United States more generally, Bacon’s case illustrates a central problem that continues to haunt the American criminal justice system: whether society should tolerate the influence of extrinsic elements such as race in death sentencing. After all, the difficult question of whether people should be put to death by the state is of great moral and political consequence and is sharply debated in both scholarly and public arenas (Bailey and Peterson 1994; Baumgartner, De Boef, and Boydstun 2008; Bedau 2004; Keil and Vito 1992).

The history of American criminal trials is filled with many pages discussing race as a most vexing aspect of the death penalty landscape. Race adds an additional layer of complication to an already difficult subject matter. Within the death penalty debate, however, no serious proponent argues that death sentencing should be racially biased. Indeed, as Justice Anthony Kennedy stated in Edmonson v. Leesville Concrete Company (1991), “racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming reality” (p. 628).

Robert Bacon’s death sentence is only one example in which race appears to have played a role. But we are left to wonder how many such cases go undetected. Had Pamela Smith not stepped forward with her declaration, we never would have discovered what transpired behind the closed doors of the jury room on behalf of the people of North Carolina. Because this is just one case and because it possesses unique characteristics, it would be inappropriate to generalize and say that race plays a significant role in death sentencing in North Carolina. A substantially higher threshold of evidence is required to sustain such a conclusion. In this chapter, I carefully obtain and offer ample evidence to suggest that race continues to play an illegitimate role in death sentencing in North Carolina. First, I discuss briefly the historical terrain of race and death sentencing in North Carolina and the nation.

Historical Context of Race and Death Sentencing

Research conducted in North Carolina during the era of Jim Crow segregation in the 1940s indicated that racial discrimination was playing a regular, illegitimate role in two different respects: black defendants were more likely to receive death sentences for similar crimes than white defendants, and those defendants (of whatever race) who murdered whites were also more likely to receive death sentences (Garfinkel 1949; Johnson 1941). Similar racial disparities were identified by researchers in other states (Wolfgang and Riedel 1973), and these disparities were sufficiently disturbing that they became one of the features condemned by several U.S. Supreme Court justices who joined in striking all death penalty statutes in 1972 in the Furman v. Georgia decision.6 Indeed, before Furman, it was considered a matter of routine in the South for an all-white jury to convict a black defendant, especially if the victim was white, without careful consideration of the evidence or by ignoring the evidence altogether. According to political scientists Earl Black and Merle Black, “old southern politics was transparently undemocratic and racist” (2002, 2).

In the history of modern capital punishment, Furman was the climax of a long campaign against the death penalty. The case is significant because justices temporarily halted executions to allow states some time to address deficiencies in their death penalty statutes. But more importantly, Furman expressed the Court’s desire to eradicate racial bias in death sentencing by introducing a structured sentencing scheme requiring bifurcated capital trials and guided discretion for the jury. Bifurcated trials mean that before defendants can be sentenced to death, they must first be found guilty. Then in a separate sentencing phase, the sentencing authority must find at least one statutory aggravating factor that increases the severity of the murder. These factors are numerous, and they vary from state to state. However, they typically include the killing of a law enforcement officer, killing while incarcerated, endangering other people besides the murder victim, and a killing that is incidental to additional felonies such as armed robbery, burglary, or sexual assault (Unah 2009, 143). Guided discretion requires that the jury be given a list of aggravating and mitigating factors to help in their deliberation. Only when aggravating factors outweigh mitigating factors that make the crime less severe can a jury impose a death sentence. Justices expressed optimism that these legal reforms would help channel the jury’s discretion and ultimately eliminate arbitrariness and bias in death sentencing.

After Furman, states such as North Carolina re-enacted capital sentencing statutes. These states were on clear notice that it was unconstitutional for race to play any role in determining an appropriate punishment. Those who defended the new statutes assured the federal courts that the combined effects of the desegregation of formerly segregated courtrooms, the coming of African Americans into capital juries, and the gradual desegregation of police, as well as prosecutorial and judicial ranks would lead to an end of racial bias in death sentencing. The Supreme Court, in upholding several of the new, post-Furman capital statutes in the 1976 Gregg v. Georgia case, accepted these state assurances. The justices concluded that the states’ new sentencing procedures would be sufficient to curb racial discrimination and other forms of arbitrariness that had characterized earlier capital punishment statutes.7 The Court therefore used Gregg as the vehicle for reinstating capital punishment after a four-year moratorium. Currently, nearly all the 36 states operating a death penalty system plus the federal government employ a bifurcated trial system and guided discretion modeled after Georgia.

Social Science Evidence and Death Sentencing

Soon after Gregg, social scientists began to examine the actual operation of death sentences in the post-Gregg era to see whether the new statutes had successfully eliminated racial bias. Many reported that racial factors, especially discrimination based upon the race of the homicide victim, remained. The most prominent of these early research efforts was the Baldus, Woodworth, and Pulaski (1990) study, which I mentioned earlier. It involved two overlapping studies on the capital system of Georgia from 1973 through 1979. After accounting for dozens of independent variables and using a sophisticated statistical methodology called logistic regression, the study found that the odds of receiving the death penalty in Georgia were 4.3 times greater in white victim cases than in black victim cases. The results of these studies were introduced as part of a constitutional challenge in McCleskey v. Kemp (1987), but the Court rejected McCleskey’s claim that his own race and the race of his victim were key factors in his death sentence.

Writing for the majority, Justice Lewis Powell held that purposeful discrimination in capital sentencing—whether on the basis of the defendant’s race or the victim’s race—would violate the Equal Protection Clause, and likely the Eighth Amendment as well. (The Eight Amendment prohibits cruel and unusual punishments.) However, Justice Powell found that the Baldus study relied upon by Warren McCleskey did not offer sufficiently clear evidence that his capital jury had been influenced by racial considerations, and the Court suggested that statistical arguments about patterns of capital sentencing “are best presented to the legislative bodies” that “are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts’ ” (p. 319). This statement has implications for current legislative efforts in many states to eliminate race in capital sentencing, including the recently enacted North Carolina Racial Justice Act.8 Since the McCleskey decision in 1987, federal courts have been closed to virtually all system-wide claims of racial discrimination in death sentencing even though in other areas such as gender discrimination in employment, the Court continues to accept statistical evidence that demonstrate disparate treatment of groups in hiring (Johnson v. Transportation Agency of Santa Clara County, California 1987).

The North Carolina Death Penalty Study

Most of the earlier studies on the death penalty focused on sentencing patterns either in the immediate post-Furman v. Georgia period after 1972 or in the early-to-mid 1980s (Baldus et al. 1998). Two leading modern studies of North Carolina’s capital system fit that pattern. The first study examined the first year (1977–8) of North Carolina’s experience under its new statute and was conducted by Barry Nakell and Kenneth Hardy (Nakell and Hardy 1987). That study found both race-of-defendant and race-of-victim effects at various stages of the capital charging and sentencing system during the new law’s first year of implementation. A later study that relied upon data submitted by North Carolina law enforcement personnel to the Federal Bureau of Investigation in the years 1976 through 1980 found that “the race of the victim had sizable and statistically significant effects on the likelihood that a defendant would receive the death penalty.” However, only a small number of defendants had received death sentences at that time. Therefore, “the race-of-victim effect became smaller and statistically insignificant” when the race of the defendant was added to the analysis (Gross and Mauro 1989, 91).

Between 1980 and 1997, no thorough examination of North Carolina’s capital sentencing system was undertaken at all. Unfortunately, it was a period that cried out for close scrutiny because, as Figure 4.1 shows, the number of murders reached a peak in North Carolina and the nation during this period. Since then, overall murders have been on a steady decline, as have death sentences. My earlier study, with John Charles Boger, attempted to fill that void in the literature by examining death sentencing in North Carolina from 1993 to 1997 (Unah and Boger 2001). I rely on rich data from that study to answer in this chapter specific questions about the racial justice of North Carolina’s death sentencing system, and more broadly, to reflect on whether southern states, during the 1990s—many now boasting multi-racial juries and prosecution teams, and some significant fraction of African American judges—have finally shed their age-old tendency of employing racial considerations in imposing the death penalty. The regrettable answer that emerges from my study is that race remains important in the Old North State.

Figure 4.1   Murder rates in North Carolina and the United States, 1960–2009 (source: The Federal Bureau of Investigation).

Theories of Death Sentencing

A theory is a set of interrelated concepts that help us to understand political or social phenomena. Two groups of theories have been proposed for understanding capital punishment. The first is aimed at the motivations behind state adoption of capital punishment. The second is aimed at understanding the causal process leading to differences in death sentencing outcomes.

For motivational theories, scholars have emphasized the following perspectives: deterrence, incapacitation, retribution, public opinion, and cost (see, e.g., Bailey and Peterson 1994; Ehrlich 1975; Ellsworth and Gross 1994; Rhinestein 1995; Savelsberg 1994; Unah 2009; Wilson 1985). I do not focus on motivational explanations here, although I admit that the question of motivation is interesting and important.

Instead, I consider here process-oriented theories that address observed variance in the incidence of death sentences. I consider three such theoretical frameworks. The neoclassical theory of formal legal rationality emphasizes the importance of legal rules in sentencing (Rhinestein 1995). Socio-structural theories emphasize structural differences among social groups and the conflicts they engender based on race and socioeconomic organization as a way of understanding death sentencing (Blalock 1967; Key 1949). Institutional theories emphasize how death sentencing is embedded within the political process (Smith 2004; Yates and Fording 2005).

Under the theory of formal legal rationality, the process for determining criminal punishment should be based solely upon legal rules established and approved by the state to communicate the priorities and wishes of the polity (Savelsberg 1994; Unah 2009). Under this theory, law is a rule that guides behavior of both state officials and citizens, and it does not tolerate deviations from the rules as stated in the legal code. Most people can appreciate the appeal of this theory. For one thing, its mechanical nature facilitates our ability to live together in peace by fostering predictability and uniformity of behavior on the part of government officials who must enforce the rules and citizens who must abide by them. The theory therefore argues in favor of a determinate mode of death sentencing (Unah 2009, 140). For example, if an individual is found guilty of first-degree murder after a capital trial, then the process for determining a sentence should be based not on extrinsic elements such as race but on objective criteria grounded in law.

North Carolina General Statutes list several statutory aggravating factors that make a crime more severe and therefore more likely to lead to a death sentence, e.g. killing a police officer. I developed a cumulative index of aggravating factors and expect that more aggravating factors will make a death sentence more likely. In addition to aggravating factors, North Carolina law lists three murder elements that determine whether an accused can be prosecuted and sentenced to death. These elements point to the essential mental condition of the accused when the crime was committed (mens rea). The first element involves five actions historically recognized as especially heinous when they lead to murder: poisoning, lying-in-wait, imprisonment, torture, and starvation. The second element designates a killing that reflects malice and is implemented with willful intent, premeditation, and deliberation. The third element is felony murders, those committed in the process of committing another felony such as rape, armed robbery, or arson. I consider each of these three murder elements and predict that the death penalty will be imposed when the element is present in a defendant’s case (Thornburg 1995, 61–66). See Appendix A for all variable measurements.

North Carolina law also enumerates several mitigating factors that make the crime less severe and therefore minimize the chances of a death sentence. Examples include murders where the defendant has no significant history of prior criminal activity or where the defendant was mentally impaired; and where the victim consented to the homicidal act.9 I measure this variable by developing a cumulative index of all mitigating factors found in the case. I expect that a death sentence is less likely if more mitigating factors exist. I also include the killing of multiple victims as a possible determinant of death sentencing. Both society and the law view the killing of multiple individuals as a sure sign of depraved indifference to human life. Therefore I expect multiple victims to make the death penalty more likely.

The U.S. Supreme Court has ruled in Lockett v. Ohio (1978) that defendants are free to furnish mitigating evidence from whatever source, including sources not listed in the state statute. These non-statutory mitigating factors include family deprivation, such as whether the defendant was neglected as a child or raised poor. As such I expect non-statutory mitigating factors to lower the probability of a death sentence.

Studies that analyze the ways in which communities respond to crime show that criminal motives are related to punishment severity (Simon and Spaulding 1999). Indeed, the U.S. Supreme Court has upheld state laws that permit punishment enhancement for crimes motivated by hate. Unfortunately studies that rely on official government data often fail to explicitly account for motive by assuming that motive is already incorporated into sentencing guidelines. But because human motivation is fluid, jurors can assign greater severity to a crime based on their individual experiences in relation to the assailant’s motive. Motive is made explicit by examining five motives typically associated with homicide: hatred, rage, sex, money, and involvement in collateral crimes. I expect each motive to enhance the chances of a death sentence. Finally, I consider other factors not stated in the statute but related to the case that might enhance sentence severity. These are called non-statutory aggravating factors and may include whether the murder victim had small children to support, which might move a jury to impose death. I also consider whether the victim’s body was abused after death. I expect post-mortem abuse to increase the chances of a death sentence.

Socio-structural theories

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