Fair and Equal Under the Law?

The U.S. Constitution guarantees fairness and equity before the law and yet one of the death penalty’s fatal flaws is the unequal application to people of color and those in poverty. Numerous governmental and non-governmental studies have shown that racial, economic, political, and gender biases permeate our legal system and lead to inequalities in sentencing.

Racial and economic biases permeate our legal system.

  • In 1972, the death penalty was declared unconstitutional by the U.S. Supreme Court in Furman v. Georgia. Evidence of its discriminatory use by the states led the court to call the death penalty “harsh, freakish, and arbitrary.” When the courts reinstated the practice in 1976, the problems of fairness continued despite new trial and sentencing requirements.
  • In 1990, the U.S. General Accounting Office reported, “Our synthesis of the 28 studies [on the death penalty] shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process.”

Racial minorities are more likely to receive the death penalty

  • African Americans make-up only 13% the population, but a disproportionate 42% of those on Death Row
  • According to Amnesty International, more than 20% of black defendants who have been executed were convicted by all-white juries.
  • Even though blacks and whites are murder victims in nearly equal numbers, 80% of people are executed for murders involving white victims.
  • According to a recent landmark study regarding race and the death penalty, a black defendant who kills a white victim is up to 30 times more likely to be sentenced to death than a white defendant who kills a black victim.

People in Poverty are More Likely to Receive a Death Sentence.

  • According to recent findings, 95% of defendants charged with capital crimes are impoverished and cannot afford their own attorney to represent them.
  • In the [Furman case], Justice William O. Douglas noted, “Money buys good attorneys. Lack of money means you get whoever the state assigns to you.”
  • While structural inequities exist in the death penalty’s use and make it unjust to racial minorities, it is also true that few defendants with wealth and private attorneys find themselves on death row. Those in poverty have a greater chance of receiving a death sentence.

The Death Penalty Disproportionately Effects American Indians

  • A study in 2003 by the Capital Punishment Research Project found that 19 percent of the 340 men and women executed prior to 1994 were American Indians. Americans Indians make up less than 1 percent of the general population.
  • Montana has sentenced 13 men to death since 1976 when the death penalty was “reinstated” in the U.S. Three have been executed, two committed suicide, two currently sit on death row, and the rest had their sentences converted. Of the 13, one was African American and two were American Indian. American Indians make up about 6% of Montana’s population and yet make up 15% of those who were sentenced to death in Montana.
  • Linwood Tall Bull, a cultural consultant for the Northern Cheyenne tribe, said that the Northern Cheyenne traditionally, “Really had no kind of capital punishment.”
  • Sam Windy Boy, Jr., a cultural consultant for the Chippewa-Cree tribe, said the spiritual laws of the tribe uphold human life as a core belief. He said that the most severe punishment meted by the Chippewa-Cree was banishment and was reserved for murderers. Under banishment, the guilty party was driven from the tribe, never again to have any help or contact with the tribe and considered dead thereafter.
  • The American Indian Tribes in the United States have an option to “opt-in” to the federal death penalty, which applies to crimes by American Indian people against American Indian people on Reservation land. Only one Tribe in the whole nation has opted-in, the Sackinfox of Oklahoma.
  • The incarceration rate of Native Americans is 38% higher than the national rate.
  • On average, American Indians receive longer sentences than non-Indians for crimes. They also tend to serve longer time in prison for their sentences than non-Native Americans.
  • In 2006, 39 Native American prisoners resided on state and federal death row in the U.S. which is 1.1% of the death row population.
  • Since 1961, 15 American Indians have been executed nationally. Thirteen Indian prisoners were executed for killing whites and two were executed for killing other Native Americans.
  • Between 1979-1999, whites killed 32% of the 2,469 Indians murdered, whereas Native Americans killed 1% of the 164,377 whites murdered.