Race and the Death Penalty: “Just a Bunch of Racists”?

November 4, 2016

390763 02: A protester holds a sign up against a backdrop of palm trees during an anti-death penalty protest on the eve of the second federal execution in nearly four decades June 18,2001 in Santa Ana, CA. Juan Garza, who was sentenced to death by a judge who believes that the death penalty is morally wrong, is scheduled to die a week after the killing of Oklahoma bomber Timothy McVeigh in Terra Haut, ID. (Photo by David McNew/Getty Images)
Photo by David McNew/Getty Images)

At a recent public debate of California’s competing ballot initiatives on the death penalty, Paul Pfingst, a former district attorney for San Diego County and a supporter of Prop 66, spoke about the role race plays in the death penalty.

He said that race plays a role in every facet of the criminal justice system, but the notion that “the people making these decisions [about death penalty sentencing] are just a bunch of racists who don’t care about these things, is just unfair.”

Pfingst was speaking in support of Prop 66, a ballot measure that would impose limits on death row appeals and remove protections in place for wrongfully convicted people. On the other side of the debate are supporters of Prop 62, a competing measure that would abolish the death penalty in California.

Prop 62 supporters argued that the death penalty is racist, as evidenced by the disproportionate number of Latinos and African Americans on death row – groups that make up 67% of the state’s death row. Pfingst countered that claim with his argument that prosecutors are not “just a bunch of racists.”

In doing so, he completely missed the point.

The truth of racism in the criminal justice system, and the death penalty in particular, is far more complex. Disproportionate punishment against minorities plays out at every level of the system, rooted in the implicit biases of street-level police officers, investigators, prosecutors, judges, jurors, even the legislators who wrote the laws. We can’t always see the ways in which our preconceptions and prejudices influence our decision making.

Pfingst’s point that prosecutors are not “just a bunch of racists” gets to the heart of implicit bias. As a former District Attorney, Pfingst acknowledged that racism infects the criminal justice system, but his argument seems to suggest that voters should ignore that fact when racism is implicit rather than explicit.

Sadly, Pfingst’s way of looking at race in the justice system avoids accountability for systemic racism and the implicit bias that leads to a disproportionate number of minorities on death row. But Pfingst isn’t alone. In fact, the decision to simply ignore implicit racism in the justice system comes directly from the U.S. Supreme Court.

In the 1987 case McCleskey v. Kemp, a death penalty case from Georgia, the Supreme Court ruled that statistical evidence of racism in the death penalty process was not enough to stop an execution. It was a landmark case that continues to govern how the U.S. handles race in the justice system. Without statistical evidence of implicit bias, the only way to show that a death sentence (or any sentence for that matter) is tainted by racism is to show explicit racial bias on the part of a decision-maker involved.

In practical terms, that makes it all but impossible to prove that a sentence was motivated by racism. A juror or prosecutor would have to make openly racist remarks about their own motivation. The Court acknowledged in the McCleskey ruling that to address the true problems of systemic racism, the United States risks unraveling the entire justice system.

We’ve seen the consequences of that ruling again and again in the decades since. Race remains a critical factor in determining who is charged with capital murder and sentenced to die. Appeals based on clear evidence of racial bias are routinely ignored. Black and Latino jurors continue to be excluded at far higher rates than whites. Duane Buck, sentenced to die because of his race, has come within hours of execution; others have already been executed.

When Pfingst argues that prosecutors are not “just a bunch of racists,” he’s asking voters to ignore the systemic racism that infects the entire system and pretend it doesn’t exist, as long as no one utters a racial slur. And since the Supreme Court has backed up that logic, it’s understandable that he thinks voters will, too.

The truth is that voters of all backgrounds and communities know that our justice system is tainted by implicit racial bias, and that African Americans and Latinos are at greater risk of the death penalty – the ultimate and irreversible violation of human rights. Prop 66 represents a dangerous step in the wrong direction by removing critical safeguards, and requires voters to shrug their shoulders at the deep and disturbing reality of racism in the system.

There’s only one way to eliminate racism in the death penalty, and that’s to eliminate the death penalty. To ensure that human rights are protected in their state, Californians should vote yes on Prop 62, and no on Prop 66.