||Earl Ofari Hutchinson
Long suffering death penalty opponents are in a euphoric mood these days. And with good reason. For the past two decades they have been sneered at as pacifists, bleeding heart liberals, and even apologists for murderers. Now more Americans then in recent years agree with them that the death penalty should be abolished. Polls now show that about one in three Americans oppose capital punishment, up from one in ten in 1994. A whopping 92 percent say that DNA testing should be available to all prisoners. It's easy to see why there's been a sharp turnabout in sentiment. In recent months we've been deluged with reports of accused murderers being represented by inept, shoddy, even dozing lawyers, blatant racial typecasting, threadbare and even horribly tainted evidence, colossal judicial and prosecutorial errors in capital cases, and the jump in death row prisoners exonerated by DNA testing.
The stench from the death penalty prompted a moratorium by Illinois governor, a vote by New Hampshire state legislators to dump the death penalty (the governor vetoed it), and a three year standing call by the American Bar Association for a temporary halt to all executions. It prodded George W. Bush who has presided over nearly one fifth of the executions in the nation since the death penalty was reinstated in 1976 to briefly turn the switch off on Texas's killing machine by granting a 30 day stay to allow time for a condemned man to get DNA tested.
Despite the good news for death penalty opponents, the public is still far from ready to scrap the death penalty. There are two reasons why. One is publicly stated: fear of crime. Even though crime figures are way down, the fear of crime isn't. That fear is fueled by high-profile shooting rampages, a crime-gorged media that stuffs the public with mega-doses of crime and violence stories, politicians who pound away on lawlessness, and a Supreme Court flatly rejects any reconsideration of the deaht penalty. The other reason that the death penalty is still alive and well is privately whispered: race. The death penalty has always been white America's ultimate legal weapon against black men accused of violent acts (mostly against whites). Between 1930 and 1996, more than half of all those executed have been African-Americans. When the crime (or accusation) is rape, the death penalty has almost always been exclusively reserved for blacks. Of the 453 men executed for rape since 1930, 405 have been black. Nearly all of them were executed in the South. They were arrested and convicted on the flimsiest evidence, usually no more than the word of a white woman. At the same time, not one white man received the death penalty for raping a black woman. There is no official record in any Southern state of a black man ever being executed for raping a black woman. The victims of all but 44 of the blacks executed in the South from 1930 through 1984 were white. Not much has changed over the years. According to the NAACP Legal Defense Fund a black is still eleven times more likely to get the death penalty then a white when the victim is white. At present nearly half of those currently sitting on the nation's death rows are black. And that number has remained steady for three decades.
The only real change in the top heavy racial make-up of death row prisoners is the jump in the number of Latinos awaiting execution. In Texas and California, the runaway leaders in the number of prisoners on death row, a significant number of the condemned are Latinos. A recent report from the Leadership Council on Civil Rights revealed that Latinos have outstripped blacks as the fastest growing imprisoned group in America. The same glaring racial bias that insures many black men wind up on death row also ensnares Latinos.
The appellate court that recently reviewed the death sentence for convicted Texas murderer Victor Hugo Saldano noted that a psychologist casually listed his Latino background as an "aggravating factor" in recommending that he get the death penalty. Saldano was lucky. The court overturned his sentence. But for hundreds of other men victimized by the same outrageous racial bias there will be no last minute rescues.
In the coming days there will almost surely be more atrocity tales of sleeping lawyers and condemned men getting 11th hour DNA escapes from the executioner. This may well push the number of Americans who want to abolish the death penalty even higher. But as long as violent crime remains a prime national fixation, and many Americans cling to the even more insidious fixation that the death penalty is a punishment reserved for blacks and Latinos, the death penalty will be down but not out.
Earl Ofari Hutchinson is the author of The Disappearance of Black Leadership.
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