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Aclu Report on Racial Disparities in Fed Death Penalty 2007

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The Persistent Problem of Racial Disparities
in The Federal Death Penalty

Introduction

The Evidence

In 1991, in the first federal death penalty
prosecution post-Furman, 1 the federal
government obtained a death sentence
against David Ronald Chandler. Although
Chandler’s death sentence ultimately was
commuted, apparently because of serious
questions about his guilt,2 the government
has proceeded with federal death prosecutions at an ever-accelerating pace.3 This
paper details the profoundly troubling evidence that racial disparities continue to
plague the modern federal death penalty.
Of the next six federal inmates scheduled
for execution, all are African-American
defendants. Defendants of color make up
the majority of federal death row and the
majority of modern federal executions.
Furthermore, modern Attorneys General
seek the death penalty at far higher rates
if the victim is White, and White federal
defendants are far more likely to have their
death charges reduced to life sentences
through plea bargaining. Given this evidence, Congress should take four steps:
(1) implement an immediate moratorium
on federal executions and prosecutions; (2)
fund a thorough study of the federal death
penalty and its racial disparities; (3) enact
a federal Racial Justice Act permitting
capital defendants to use statistical evidence as proof of racial bias; and (4) enact
legislation requiring the Department of
Justice to provide regularly information
about implementation of the federal death
penalty, including statistical data about the
race of victims and defendants in cases
submitted and recommended for capital
prosecutions.

1. ALL SIX OF THE NEXT SCHEDULED FEDERAL EXECUTIONS ARE AFRICAN-AMERICAN INMATES.
Six African-American federal death row
inmates — Richard Tipton, Cory Johnson,
James H. Roane Jr., Bruce Webster,
Orlando Hall, and Anthony Battle — all
face impending execution. Three defendants, Richard Tipton, Cory Johnson, and
James H. Roane, Jr., were sentenced to
death in February 1993 in Richmond,
Virginia. Their executions were scheduled
in May 2006, but the executions have been
stayed because of litigation challenging
the constitutionality of the government’s
lethal injection protocol.4 Bruce Webster
was sentenced to death in November 1995
in Fort Worth, Texas. His execution date
was scheduled for April 16, 2007, but it is
currently stayed.5 Orlando Hall was sentenced to death in June 1996, also in Forth
Worth, Texas. Anthony Battle was sentenced to death in March 1997 in Atlanta,
Georgia. Scheduling of execution dates for
Hall and Battle are also stayed pending the
lethal injection litigation.6
2.

TWO OF THE THREE MEN EXECUTED IN THE

MODERN FEDERAL DEATH PENALTY ERA WERE
MEN OF COLOR .

The United States federal government has
executed three individuals since 1976:
Timothy McVeigh, a White defendant executed in 2001; Juan Garza, a Latino defendant executed in 2001; and Louis Jones, an
African-American defendant executed in
2003.7

3.

THE DEATH PENALTY HAS BEEN REDUCED TO LIFE

4. U.S.

ATTORNEYS GENERAL HAVE BEEN FAR MORE

SENTENCES THROUGH PLEA BARGAINS FOR WHITE

LIKELY TO SEEK THE DEATH PENALTY IN CASES INVOLV-

DEFENDANTS AT ALMOST TWICE THE RATE AS FOR

ING WHITE VICTIMS, AND THE PROBLEM IS GETTING

DEFENDANTS OF COLOR.

WORSE.

A 2000 U.S. Department of Justice study of
the federal death penalty found that a far
greater percentage of White defendants
were able to avoid the death penalty
through plea bargains than Black defendants or Hispanic defendants.8 According to
the study, 48% of White defendants
received a sentence less than death
through plea bargains while only 25% of
Black defendants and 28% of Hispanic
defendants pled to life sentences. Rory
Little, a former federal prosecutor and
member of the Department of Justice
Capital Case Review Committee,9 attributed these “racially disparate capital punishment statistics” to the exercise of federal prosecutorial discretion and “the exercise of leniency.”10

Like the overwhelming majority of state
death penalty systems,13 there is strong evidence that the federal death penalty discriminates on the basis of the race of the victim, with the U.S. Attorney General far more
likely to seek a death sentence in White victim cases than in cases with victims of color.
Federal regulations require that United
States Attorneys submit for the Attorney
General’s review all cases indicted for federal crimes that could qualify for the federal
death penalty.14 The Attorney General then
authorizes15 death penalty prosecutions in
cases from this group of death-eligible
cases.16 Data about authorization rates is
available for Attorneys General Reno,
Ashcroft, and Gonzales. Each was substantially more likely to seek the death penalty in
White victim cases, defined as a case with
A follow-up report in 2001 by the one or more White victims.17
Department of Justice nonetheless asserted that it is “unwarranted” to suspect Attorney General Reno authorized the death
racial discrimination played a role in gen- penalty in one out of every five cases if no vicerating these sharp racial disparities in tim was White, but she authorized the death
plea-bargaining because “it takes two to penalty in more than one out of every three
make a plea agreement.”11 The clear impli- cases if at least one victim was White.18 In
cation of this statement is that Black and other words, a federal defendant’s odds of
Hispanic defendants have rejected plea facing the death penalty went from one out of
offers at a greater rate than White defen- five to one out of three if a victim was White.19
dants. The Department of Justice, however, Attorney General Ashcroft also authorized the
did not come forth with any evidence in death penalty in a greater percentage of cases
either its initial 2000 report or its follow-up with White victims than victims of color. He
2001 report showing that Black and authorized the Department of Justice to seek
Hispanic defendants have been offered life the death penalty in roughly the same proporpleas at the same rate as White defen- tions as Attorney General Reno.20
dants, but have rejected them at a greater
rate.12 Thus, there is no reason to believe The statistics from Attorney General
that the “racially disparate capital punish- Gonzales are even more troubling. To date,
ment statistics” regarding plea bargains is he has authorized the death penalty in only
the result of Black and Hispanic defen- one out of every six cases with no White vicdants rejecting plea bargains at a greater tim, but almost one out of every two cases
with a White victim.21
rate than White defendants.

Across all three Attorneys General, the AG
death penalty seek rate was 35% (146/416) in
White victim cases, compared with 19%
(212/1090) in all other cases.22 This represents a statistically significant 16-percentage point disparity between the two rates. It
means that the risk of a death penalty
authorization is 1.8 times higher (35%/19%)
in White victim cases than in other cases. It
also means that the risk of a death penalty
authorization is 84% higher (16/19) in White
victim cases than in other cases.
By continuing to authorize the death penalty
disproportionately for cases with White victims, the federal government is sending the
intolerable message that it values the life of
a White person more than the life of a person
of color.
5.

THE MAJORITY OF DEFENDANTS SENTENCED TO

DEATH IN THE MODERN ERA OF THE FEDERAL DEATH
PENALTY ARE PERSONS OF COLOR.

As noted above, fifty-four individuals23 have
been sentenced to death in the modern
federal death penalty era: of these, thirtythree defendants — more than half24 — are
persons of color. Twenty-seven AfricanAmerican defendants, twenty-one White
defendants, five Latino defendants and one
Native American defendant have been sentenced to death under the federal death
penalty laws.25 These percentages reflect
larger disparities than those observed on
many state death rows.26 Furthermore, the
disparities also represent a significant
shift from the pre-Furman death penalty
era. Before Furman, the federal government executed thirty-four individuals
between August 17, 1927, and March 15,
1963. 27 Of those executed, twenty-eight
were White, two were Native American and
three were African-American. 28 While
these disparities alone do not prove bias in
the federal system, they raise serious
questions about it.

Recommendations
This evidence of racial disparities in the
implementation of the federal death penalty
fundamentally challenges its legitimacy and
requires immediate action. First, Congress
should implement a moratorium on federal
death penalty prosecutions and executions.
A moratorium is necessary until it is clear
that the federal death penalty can be implemented without racial bias. Second,
Congress should fund a federal study to
examine racial disparities and the implementation of the federal death penalty. The
study should examine, among other issues,
why cases are selected for the death penalty
and why cases are selected for federal prosecution instead of state prosecution.29
Third, Congress should enact a federal
Racial Justice Act, similar to the statute
adopted by the State of Kentucky.30 This legislation would allow capital defendants to
use statistical evidence as proof of racial
bias.31 Under current federal law, although
an employee can use statistical evidence in
civil rights litigation as evidence of discrimination, a capital defendant cannot challenge
his capital charge, conviction or death sentence with persuasive statistical proof of
racial bias.32 The Racial Justice Act is necessary to ensure that the question of life or
death for federal defendants does not turn
on the race of the defendant or the victim.
Fourth, Congress should enact reporting
legislation that would require the
Department of Justice to provide annually
information about the implementation of the
federal death penalty. This information
should include statistical data relevant to
studying racial disparities, including: (1) for
each United States Attorney’s office, the
number of homicide cases reviewed by the
office, broken down by race of defendant and
race of victim, the number of cases indicted
with capital-eligible crimes by race of defen-

dant and race of victim, and the number of
cases submitted to the Attorney General’s
Review Committee on Capital Cases by race
of defendant and race of victim; (2) information about cases approved and rejected by
the Attorney General for capital prosecution,
broken down by race of defendant and race
of victim; and (3) information about plea bargaining, including the numbers of plea offers
extended and entered, by race of defendant

and race of victim. The reporting legislation
should also require the Department of
Justice to provide financial information,
including the cost of prosecuting federal
capital and non-capital homicide cases.
Transparency about the implementation of
the federal death penalty is a critical step
towards ensuring that the death penalty is
not administered in an arbitrary or discriminatory manner.

APPENDIX A

All Federal Defendants Sentenced to Death in the Modern Death Penalty Era (Post-Furman)
LAST NAME
Agofsky
Allen
Barnette
Barrett
Basham
Battle
Bernard
Bolden
Bourgeois
Brown
Caro
Corley
Davis
Fell
Fields
Fields
Fulks
Gabrion
Garza
Hall
Hammer
Hardy
Higgs
Holder
Honken
Jackson
Jackson
Johnson
Johnson
Johnson
Jones
Kadamovas
Lawrence
LeCroy
Lee
Lighty
McVeigh

FIRST NAME
Shannon
Billie
Aquilia
Kenneth
Branden
Anthony
Brandon
Robert
Alfred
Meier
Carlos
Odell
Len
Donald
Edward
Sherman
Chadrick
Marvin
Juan
Orlando
David
Paul
Dustin
Norris
Dustin
David
Richard
Angela
Cory
Darryl
Louis
Jurijus
Daryl
William
Daniel
Kenneth
Timothy

D-RACE
W
B
B
W
W
B
B
B
B
B
L
B
B
W
W
B
W
W
L
B
W
B
B
B
W
B
W
W
B
B
B
W
B
W
W
B
W

YEAR
2004
1998
1998
2005
2004
1997
2000
2006
2004
2003
2007
2004
1996
2005
2005
2001
2004
2002
1993
1995
1998
1996
2000
1998
2004
2006
2001
2004
1993
1997
1995
2007
2006
2001
1999
2005
1997

EXECUTED

Y (2001)

Y (2003)

Y (2001)

Mikhel
Mikos
Mitchell
Nelson
Ortiz
Paul
Purkey
Roane
Robinson
Rodriguez
Sampson
Sinisterra
Stitt
Tipton
Vialva
Webster
Wilson

Iouri
Ronald
Lezmond
Keith
Arboleda
Jeffrey
Wesley
James
Julius
Alfonso
Gary
German
Richard
Richard
Christopher
Bruce
Ronell

W
W
N
W
L
W
W
B
B
L
W
L
B
B
B
B
B

2007
2005
2003
2001
2000
1997
1998
1993
2002
2006
2003
2000
1998
1993
2000
1996
2007

Re-sentenced/Commuted to Life Sentence
LAST NAME
Chandler
Chanthadara
McCullah

FIRST NAME
David
Boutaem
John

D-RACE
W
A
W

YEAR
1991
1995
1993

TOTAL

54

White
Black
Asian
Native American
Latino

21
27
0
1
5

APPENDIX B

Seek Rates by Attorney General and Race of the Victim
Considered (N)

Authorized (N)

Seek Rates

All Cases

600

149

24.83%

Cases > 1 White Victim

185

66

35.68%

Cases with no White Victim

415

83

20.00%

All Cases

623

138

22.15%

Cases > 1 White Victim

164

52

31.71%

Cases with no White Victim

459

86

18.74%

All Cases

328

71

21.65%

Cases > 1 White Victim

67

28

41.79%

Cases with no White Victim

261

43

16.48%

Seek Rate Difference

Janet Reno (1995-2000)33

15.68%

John Ashcroft (2001-2005)34

12.97%

Alberto Gonzales (2005- present)35

Janet Reno (1995-2000)

John Ashcroft (2001-2005)

Alberto Gonzales (2005- )

25.31%

ENDNOTES
In Furman v. Georgia, 408 U.S. 238, 241 (1972), the Supreme Court held the Georgia statutory death penalty unconstitutional. Four years later,
in 1976, the Court upheld the constitutionality of Georgia’s substantially revised statute. Gregg v. Georgia, 428 U.S. 153, 187 (1976). The “modern death penalty era” is used throughout this paper to refer to those cases prosecuted after Furman under revised death penalty statutes.
1

2
See United States v. Quinones, 205 F. Supp. 2d 256, 266 n.13 (S.D.N.Y. 2002), rev’d on other grounds, 313 F.3d 49 (2d Cir. 2002) (“[A]s the government concedes, at least one of the 31 federal death row inmates, David Ronald Chandler, had a colorable claim of actual innocence, but
his sentence was commuted by President Clinton … [and] seemingly prompted by serious doubts about Chandler’s guilt[.]”)
3
See Marcia Coyle, Federal Death Penalty Stalls, NAT’L L. J. (April 30, 2007) (“There is no question that the Bush administration has been
more aggressive than prior administrations in pursuing federal death sentences. And there is no question that the federal death row has been
growing because of that effort even as state death rows decline.”)

See Death Penalty Information Center (DPIC), Federal Death Row Prisoners (April 11, 2007), available at http://www.deathpenaltyinfo.org/
article.php?scid=29&did=193 [hereinafter DPIC]; see also, Roane v. Gonzales, No. 1:05-CV-2337 (RWR) (D.D.C. Feb. 27, 2006) (order granting
motion for preliminary injunction barring execution of James Roane, Jr., Richard Tipton, and Cory Johnson).

4

5
See DPIC supra, note 4; Roane v. Gonzales, Case No. 1:05-CV-2337 (RWR) (D.D.C. Feb. 21, 2007) (order granting motion for preliminary
injection barring execution of Bruce Webster).

Roane v. Gonzales, No. 1:05-CV-2337 (RWR) (D.D.C. June 11, 2007) (order granting motion for preliminary injunction barring scheduling of
execution dates for Anthony Battle and Orlando Hall)

6

7

See DPIC, supra note 4.

See U.S. Dept. of Justice, The Federal Death Penalty System, A Statistical Survey, 34-35 (September 12, 2000) available at
http://www.usdoj.gov/dag/pubdoc/dpsurvey.html.
8

Attorney General Janet Reno established the Death Penalty Review Committee in 1995. See Rory K. Little, The Federal Death Penalty:
History and Some Thoughts About the Department of Justice’s Role, 26 FORDHAM URB. L.J. 347, 409-410 (1999). U.S. Attorneys submit cases
which they have charged as capital-eligible crimes to the Review Committee, which in turn makes advisory recommendations to the Attorney
General about whether the government should seek the death penalty. The Attorney General appoints the Committee members, usually senior attorneys within the Department of Justice. Id.
9

10

See id. at 487 (quoting Kenneth Culp Davis, “the power to be lenient is the power to discriminate”).

See U.S. Department of Justice, The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case
Review, 14-15 (June 6, 2001) (hereinafter DOJ 2001 report) available at http://www.usdoj.gov/dag/pubdoc/deathpenaltystudy.htm.
11

12

Id; supra note 8.

See, e.g., Stephanie Hindson, Hillary Potter, Michael Radelet, Race, Gender, Region and Death Sentencing In Colorado 1980-1999, 77 U.
COLO. L. REV. 549, 549 (finding that the death penalty is sought at significantly higher rates for White victims than Black victims); Michael J.
Songer, Isaac Unah, The Effect of Race, Gender, and Location on Prosecutorial Decisions to Seek the Death Penalty in South Carolina, 58 S.C.
L. REV. 161, 188 (2006) (finding that prosecutors in South Carolina were 3.5 times more likely to seek the death penalty if the victim was White
and the defendant Black than in any other combination, a statistically significant finding); Isaac Unah and John Charles Boger, Preliminary
Report of the Findings of the North Carolina Death Penalty Study 2001 (2001), available at http://www.unc.edu/~iunah/prelim_rpt_nc_dpp.pdf
(concluding that the race of the victim was statistically significant in predicting who will receive the death sentence in North Carolina); U.S.
General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparateness (1990) (GAO report concluding that
race of the victim was “found to influence the likelihood of being charged with capital murder or receiving the death penalty” and noting that
this “finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques.”); see also David C.
Baldus, George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with
Special Emphasis on the Post-1990 Research, 41 No. 2 Crim. L. Bull. 6 (April 2005) (reviewing studies, including the Baldus study of Georgia
discussed in McKleskey v. Kemp, 481 U.S. 279 (1987)).
13

Failure to submit cases for consideration may mask additional racial disparities by removing from scrutiny the potentially discriminatory
decisions by United States Attorneys whether to charge a particular case with a federal, death-eligible crime.

14

The Attorney General’s Review Committee first reviews submitted cases, but its recommendations are not binding on the Attorney General’s
decision. See Rory, supra note 9, at 409-410.

15

Scholars sometimes refer to the rate at which the Attorney General authorizes cases as the “seek rate.” For example, if an Attorney
General reviewed 100 cases and authorized 50 cases, that would constitute a 50% seek rate.

16

17

See Appendix B.

Attorney General Reno authorized the death penalty in 66 of the 185 cases with White victims, a seek rate of 36%, compared with 83 of the
415 cases with no White victim, a seek rate of 20%. This difference in the seek rates is 16% and is statistically significant. See Appendix B.

18

In 2006, the RAND Corporation released a study of the federal death penalty in which it concluded that the observed racial disparities disappear after adjusting for case characteristics, including aggravating factors. See Stephen Klein, Richard Berk, & Laura Hickman, Race and the
Decision to Seek the Death Penalty in Federal Cases, at iii, xvii (2006), available at www.ncjrs.gov/pdffiles1/nij/grants/214730.pdf. This study
was limited to cases during Attorney General Janet Reno’s term, and its methodology has been heavily criticized. See, e.g., Professor David
Baldus, Review of ‘Race and the Decision to Seek the Death Penalty in Federal Cases,’ submitted February 19, 2006 (criticizing, inter alia, the
study’s methodology for analyzing race). See also Stephen B. Bright, et al., The Death Penalty in the Twenty-First Century, 45 AM. U. L. REV.
239, 341 (1995) (GAO statistician Dr. Harriet Ganson explaining that the conclusion by lead researcher Steven Klein that no disparities were
observed in a similar study of California’s death row was inconsistent with the data).
19

Attorney General Ashcroft authorized the death penalty in 52 of the 164 cases with White victims, a seek rate of 32%, compared with 86 of
the 459 cases with no White victim, a seek rate of 19%. The difference in the seek rates based on the race of the victim is 13% and is statistically significant. See Appendix B.
20

Attorney General Gonzales authorized the death penalty in 28 of the 67 cases with White victims, a seek rate of 42%, compared with 43 out
of the 261 cases with no White victim, a seek rate of 16%. The difference in these seek rates is 25% and is statistically significant. See
Appendix B. The seek rate difference for Attorney General Gonzales between cases with White victims and cases with no White victims is significantly higher than the seek rate differences for Attorneys General Reno and Ashcroft. Id.
21

22

See Appendix B.

An additional three individuals initially received sentences of death but subsequently received life sentences, either through new sentencing
hearings or commutation. Two of these individuals are White and one is Asian-American. See DPIC, Federal Death Row Prisoners (April 11,
2007); Appendix A.
23

Sixty-one percent of all individuals sentenced to death under the modern federal death penalty have been people of color. See Appendix A,
compiled with information from DPIC, Federal Death Row Prisoners (April 11, 2007).

24

25

Id.

See U.S. Dept. of Justice, supra note 8, at 36 n. 28 (reporting the percentages of state defendants awaiting execution in 1998 by race: White,
55%; Black, 43%; Other, 2%). See also DPIC (2007), available at http://www.deathpenaltyinfo.org/article.php?scid=5&did=184#inmaterace
(reporting the percentage of state defendants awaiting execution as of 2007 by race: White, 45%; Black, 42%; Latino, 11%; Other, 2%).
Compare Appendix A (reporting the percentage of federal death row defendants as of 2007 by race: White, 39%; Black 50%; Latino, 9%; Native
American, 2%).
26

27

See Kevin McNally, Race and the Federal Death Penalty: A Nonexistent Problem Gets Worse, 53 DEPAUL L. REV. 1615, 1615 (2004).

28

Id.

See, e.g., National Institute of Justice, Strategic Planning Meeting on Research Involving the Federal Death Penalty System, Summary of
Proceedings, 2-3 (Jan. 10, 2001) (“[Participant researchers] noted that research focusing on cases within Federal jurisdiction should draw
upon all potential capital cases coming to Federal prosecutors, not just those submitted for death penalty review. . . . [A]n ideal study would
include decision making at every juncture in the case process leading to a death sentence [and] . . . all State and Federal capital-eligible
cases should be combined for analysis in order to more fully understand whether race/ethnicity is a neutral factor[.]”). These issues were not
addressed by the 2006 RAND study, discussed supra note 19. Congress should also request the release of the RAND data so that it may be
examined by outside statisticians.
29

30

Ky. Rev. Stat. Ann. § 532.300 (West 2006).

31

Id.

See Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act, 35 SANTA CLARA
L. REV. 519, 519-520, 525-27 (1995) (comparing the goals and methods of proof in the proposed federal Racial Justice Act with those in the
1964 Civil Rights Act); but cf. McCleskey v. Kemp, 481 U.S. 279, 306, 313 (1987) (holding that statistical proof is inadequate to prove a constitutional violation of race discrimination in capital cases).
32

33

This data is from the RAND study. See Klein, Berk & Hickman, supra note 19.

34

The data for this section of the data is from information collected by the Federal Death Penalty Resource Counsel.

35

Id. This information includes all cases through May 10, 2007.

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