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​​​​​​​Race Considerations 2

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Another study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key decision-makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.

A most egregious example of this type of racial discrimination was revealed recently in Kentucky. In that state, there have been over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.

Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief. When the Supreme Court rejected race claims based on statistical evidence, it indicated that the problem might be addressed through legislation. Such remedial legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky. Instead, Congress recently enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought, and eliminated all federal funding for the legal resource centers which had frequently raised these claims.

The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.

This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Torture Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination and should be stopped.

The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has also signed and ratified, is implicated by a discriminatory death penalty, as well. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ." The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination. This is precisely what a Racial Justice Act would do, but this proposed legislation has been rejected as too potent a threat to the whole death penalty.

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