Michael Kroll

Prejudice on Death Row

Because I conduct writing workshops every week in juvenile hall, and because I have far more experience with the death penalty than any civilized person should have, I was asked to come into the maximum control units of one Bay Area County juvenile hall on Tuesday morning, Dec. 13, to help diffuse the anticipated emotion generated by the execution just hours before of Stanley Tookie Williams.

For many -- especially the African-American young men who comprise the majority of the children locked away in this juvenile hall -- Mr. Williams was a kind of folk hero. Most had read one or more of the books he wrote on death row urging youths to abandon their gang affiliations and to recognize the humanity that each of us possesses. Almost all had heard the thoughtful interviews he did on various radio shows. A few had even spoken with him on the phone when a staff person had arranged a call from death row.

To prepare for my standup routine, I went through California's recent experiences with executions and came up with some startling statistics I thought these young men in particular would find relevant. Since the modern era of executions was inaugurated in California with the gassing of Robert Harris in 1992, the state has put to death 12 men. Mr. Williams' execution marks only the second time an African-American was the victim of the death chamber. (In addition, eight of the 12 were white; one was Asian; and one was Native American.)

My listeners were surprised to learn that the majority of those we Californians have put to death have been white. But they were astonished when I added this statistic: Among the 27 victims of these 12 condemned prisoners, not a single one was African-American! (Five were Asian; three were Latinos; and 19 were white.)

The shameful truth is that had Mr. Williams' four victims been black, the overwhelming likelihood is that he would still be alive today, one of the many anonymous convicted murderers who occupy our state prisons.

The fact that not a single person has been executed in this state for killing an African-American is consistent with studies across the country that show the death penalty is reserved primarily for those who kill white people. The California study, "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-'99," found that 80 percent of executions in California were for killers of whites, though non-Hispanic whites make up just 47 percent of all Californians, according to the 2000 U.S. Census. Those who kill whites are more than four times more likely to be sentenced to death than those who kill Latinos, and over three times more likely to be sentenced to death than those who kill African-Americans.

As African-American young men who have had to negotiate both systemic racism and the mean streets they live on, these young detainees were not surprised to learn that the system devalues blacks. But as the discussion veered from the execution this morning to Saddam Hussein to Hitler, one young man asked me about Jack the Ripper. I told him that those crimes were committed in England more than a century ago, and that the man who did it was never caught. And when I added that his victims were prostitutes, the young African-American said, "Oh well, who cares? They were just prostitutes."

This observation brought the discussion back to where we had begun. When I connected his belief about prostitutes with the first theme -- how the criminal justice system devalues some people by placing extra value on others -- he asked if I were accusing him of racism. I answered: "I am accusing you of ignorance, which is the prerequisite to racism. You have decided a class of people -- prostitutes -- are of less worth than you, just as the criminal justice system decides through its daily decisions that you are worth less than me."

In 1988 in Texas, Judge Jack Hampton sentenced a convicted murderer of two homosexuals to 30 years in prison, announcing as he did: "I put prostitutes and gays at about the same level, and I'd be hard put to give somebody life for killing a prostitute." The ultimate expression of his shocking admission is the fact that not one killer of a black person has been put to death in California in the modern era.

One lesson of war is that if we can objectify our enemies as worth less than us, then we can kill them. It could be prostitutes, as it was for the young man interested in Jack the Ripper; it could be gays as it was for that Texas judge. It could be Arabs or Jews or homeless or ... You fill in the blank. The sad truth is that as long as we classify groups of people under labels that strip them of their individual worth -- whether it's the Crips labeling their victims as "enemies," or the state labeling its victims as "gang bangers," etc., -- we can dispose of them.

Stanley Williams' execution just past midnight is merely the latest expression of our collective prejudices.

Demanding the Death Penalty

U.S. Attorney General John Ashcroft, heretofore an ardent advocate of deferring to local control over federal edict, has now countermanded his own U.S. attorneys' recommendations for life imprisonment instead of death at least 28 times.

When it comes to the death penalty, the states and the public are marching in one direction and the federal government in another.

The federal death penalty involves murder on federal property, certain drug kingpin killings and the use of the mail system to transport a murder weapon. Courts have even allowed federal capital prosecutions when interstate commerce is implicated. Typically, a recommendation for sentencing originates with one of the 93 local or regional U.S. attorneys. A committee designated by the attorney general and, ultimately, the attorney general himself or herself must decide between seeking death or "life without release."

Most local U.S. attorneys, attuned to the politics of their jurisdictions, do not recommend death in federal cases that originate in states that have no death penalty (Hawaii, Michigan, West Virginia), or where it is seldom if ever imposed (New York, the Northeast). Under the Bush administration, however, Washington is redefining that process.

Take the case of David Lien. Accused of participating in the mail-bomb murder of San Jose State student Patrick Hsu, Lien thought he had a deal. In exchange for his guilty plea, then- U.S. Attorney David Shapiro offered to spare him from the death penalty for a life sentence. Washington overruled the decision, however, forcing Lien to a lengthy trial at taxpayer expense.

Ashcroft's stated rationale for insisting on capital punishment where life in prison had been recommended has been to counter geographic disparity in the imposition of the death penalty. But his actions have reflected longtime racial disparities in death sentences: Ashcroft has sought death against 25 Black, Latino or (such as Lien) Asian defendants, and only two whites.

Ashcroft's spokesperson, Barbara Comstock, insists that he is "committed to the fair implementation of justice." Yet some 75 percent of the defendants the U.S. government has sought to put to death since 1988 have been minorities. About 90 percent of those condemned to death had white victims, though blacks make up half the murder victims in the country.

State juries, which account for 99 percent of all death sentences, are imposing fewer. The reasons include advances in DNA evidence and a growing belief that life without parole is an acceptable alternative to the racial and class disparities that continue to infect the criminal justice system. In some corners there is a general distrust of placing this much power over life and death in the hands of government officials.

According to the Bureau of Justice Statistics, death sentences have declined for the fourth consecutive year.

A brief survey of states reveals the changing landscape:

-- In Illinois, former Gov. George Ryan cleared out the state's death row and granted blanket clemency to 167 inmates and pardons to four others because DNA evidence was uncovering so many false convictions. Then the House Judiciary Committee voted to abolish the death penalty and send the matter to the full chamber. Although passage is unlikely, this was first of many such bills to clear a committee and be sent to the floor.

-- In Pennsylvania, which has the fourth largest death row in the country, the Committee on Racial and Gender Bias in the Justice System, appointed by the state's supreme court, has recommended a moratorium until "policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented."

-- The rate of death sentences imposed by juries is down 80 percent in Ohio since 1998. In Florida, which has the third largest death row in the country, the rate of death sentences has fallen by 40 percent over the past 5 years.

-- A University of Georgia poll found 60 percent of Georgians oppose executing people who committed their crimes under age 18, and in Arkansas, the House Committee on Aging, Children and Youth, Legislative and Military Affairs, passed a bill to restrict the death penalty to people 18 and over. Two years ago it had defeated similar legislation.

-- In Virginia, which has the highest per capita rate of executions in the country, Gov. Mark Warner has asked the legislature to end the "21-day rule" that bars new evidence from being introduced three weeks from the time of sentencing, citing the fact that no other state "has such a restrictive rule that can actually prevent evidence of innocence from coming to light."

-- Even in Texas, which leads the nation in executions, an astonishing 69 percent questioned by the Texas Poll believe the state has executed innocent people.

In 1997, before ascending the seat of federal power, Attorney General Ashcroft told the Conservative Political Action Caucus that the Constitution's framers envisioned a republic "where the will of the people would be imposed on Washington, not the views of Washington imposed on the people." Principle may be the first casualty of power. Apparently for the attorney general, the old adage holds true: "Where you stand depends on where you sit."

Michael Kroll (mkmitigates@hotmail.com) is the founding director of the Death Penalty Information Center in Washington, D.C.


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