Ch. 12 – VA – Full Team review (7.31 and 8.1.13).
Chapter TWELVE
RACIAL AND ETHNIC MINORITIES
Introduction to the Issue: A National Perspective
In the past twenty-five years, numerous studies evaluating decisions to seek and to impose the death penalty have found that race is too often a major explanatory factor. Nationwide, most of the studies have found that, after controlling for other factors, the death penalty is sought and imposed significantly more often when the murder victim is white than when the victim is black. Studies also have found that the death penalty has been sought and imposed more frequently in cases involving black defendants than in cases involving white defendants and that the death penalty is most likely to be imposed in cases in which the victim is white and the perpetrator is black.
In 1987, the Supreme Court of the United States held in McCleskey v. Kemp[1] that even if statistical evidence revealed systemic racial disparity in capital cases, this showing would not amount to a federal constitutional violation in and of itself. At the same time, the Court invited legislative bodies to adopt legislation to deal with situations in which there is systematic racial disparity in the death penalty’s implementation.[2]
The pattern of racial disparity reflected in McCleskey and discussed below persists today in many jurisdictions, in part because actions by prosecutors, defense lawyers, trial judges, and juries may improperly introduce race into capital trials. These include intentional or unintentional prosecutorial bias when selecting cases in which to seek the death penalty, ineffective defense counsel who fail to object to systemic discrimination or to pursue discrimination claims, and discriminatory use of peremptory challenges during jury selection.
There is no dispute about the need to eliminate any form of racial or ethnic discrimination in the administration of the death penalty.[3] To accomplish this goal, however, society must identify the various ways in which race affects the administration of the death penalty and devise solutions to eliminate discriminatory practices.
I. Factual Discussion: Virginia Overview
A. Race and the History of Virginia’s Death Penalty
Prior to the U.S. Supreme Court’s reinstitution of the death penalty in 1976, which began the modern death penalty era, the Court had found the application of the death penalty unconstitutional in Furman v. Georgia.[4] Racial disparities in the application of the death penalty—in Virginia and elsewhere—in addition to other concerns about the unfettered discretion afforded to juries in determining outcomes in death penalty cases, led to the invalidation of existing capital punishment statutes in 1972.[5] Notably, during the fifty-four year period preceding the Furman decision, Virginia’s executions were associated with “stark racial disparities.”[6] Specifically, in Virginia
[o]f the 236 persons who were executed from 1908 to 1972, 86 percent were black []. Moreover, executions for the capital crimes of rape, attempted rape, and armed robbery, appear to have been reserved exclusively for the punishment of blacks. In particular, of the 41 persons executed for rape, none were white. Yet, over this same time period, 45 percent of all persons who were incarcerated for rape were white []. Additionally, each of the 14 persons executed for attempted rape was black. Finally, all five armed robbery cases that resulted in executions involved black defendants.[7]
B. Race in the Modern Death Penalty Era
After Furman, the Virginia General Assembly amended the Commonwealth’s capital punishment statutes to comport with the rulings of the U.S. Supreme Court,[8] and the constitutionality of the Commonwealth’s 1977 capital punishment statute was subsequently upheld by the Supreme Court of Virginia in 1978.[9] Several of the death-eligible offenses which appeared to be reserved, in practice, for black offenders before Furman—such as rape, attempted rape, and robbery—are no longer punishable by death.[10]
After Furman, the issue of racial and ethnic discrimination in the administration of capital punishment was brought to the forefront by the U.S. Supreme Court’s decision in McCleskey v. Kemp.[11] Relying on a study conducted by David Baldus, Charles Pulaski, and George Woodworth, McCleskey challenged the constitutionality of Georgia’s capital sentencing process by arguing that it was applied in a racially discriminatory manner.[12] Specifically, after controlling for 230 variables, the Baldus study showed that blacks convicted of killing whites faced the greatest likelihood of receiving the death penalty, while whites convicted of killing blacks were rarely sentenced to death.[13] The Court rejected McCleskey’s claims, finding that the data showing racial discrepancies in the administration of the death penalty generally did not prove the existence of intentional racial discrimination in McCleskey’s case.[14]
The McCleskeydecision invited legislatures to develop remedies for eliminating race from the capital sentencing process.[15] While Virginia has not enacted any legislation specifically addressing racial discrimination or disparity in capital sentencing, the Commonwealth has conducted a review of its modern death penalty system—published in 2002—part of which examined whether race affected prosecutors' decisions to seek the death penalty.[16] This is discussed in greater detail, under Protocol #3 in the Analysis section of this Chapter.[17]
II.Analysis
Below are the ABA Benchmarks, or “Protocols,” used by the state assessment team in its evaluation of its state’s death penalty system. Each protocol is followed by the Assessment Team’s analysis of the state’s compliance with the Protocol and, where appropriate, the Assessment Team’s recommendation(s) for reform.
A. Protocol #1
Jurisdictions should fully investigate and evaluate the impact of racial discrimination in their criminal justice systems and develop strategies that strive to eliminate it.
Racial Discrimination in Death Penalty Cases
Two reviews of the effect of racial and ethnic discrimination on Virginia’s capital punishment system have been conducted since the reinstatement of the death penalty in 1976. The first was conducted in 2000 by the American Civil Liberties Union of Virginia and concluded that, in capital cases, "death sentences in Virginia continue to be influenced by the location of the crime, the poverty of the defendant and the race of the victim."[18] The Joint Legislative Audit and Review Commission (JLARC) conducted a second, more detailed study in 2002. JLARC’s final report, while recognizing that those accused of killing whites received the death penalty more than those accused of killing blacks,[19] ultimately concluded that race was not a significant factor in prosecutors’ decisions to seek a death sentence once researchers controlled for additional factors.[20] These studies are discussed in detail under Protocol #3.[21]
Current data reveal general patterns that race or ethnicity may be affecting the administration of the death penalty in Virginia. While these data are not conclusive evidence that racial discrimination affects death penalty case outcomes, they do suggest that the issue needs to be examined further. For example, since reinstating the death penalty through May 31, 2013, Virginia has carried out 110 executions.[22] As illustrated in Table 1, below, of those 110 executions, eighty-nine inmates were executed for the murder of a white victim. Four white offenders were executed for killing a black victim; by contrast, thirty-seven black offenders have been executed for killing a white victim:
Table 1 – Virginia Executions by Race of Offender/Race of Victim (as of April 25, 2013)[23]
Race of VictimWhite / Black / Hispanic / Asian / Other / Total
Race of Executed Offender / White / 49 / 4 / – / 1 / 2 / 56
Black / 37 / 13 / – / – / – / 50
Hispanic / 2 / – / – / – / – / 2
Asian / 1 / – / – / – / – / 1
Other / – / 1 / – / – / – / 1
Total / 89 / 18 / 0 / 1 / 2 / 110
According to 2010 census data, blacks appear to be overrepresented among Virginia’s executed inmates: although only 20.7% of Virginia’s population,[24] blacks constitute 45.5% of the state’s executions.[25] In general, minorities are also overrepresented among the current death row population in comparison to their population in the Commonwealth: four of the ten inmates on death row in Virginia are black and one is Latino.[26]
Jury Selection
There is also evidence of potential racial bias in jury selection for capital murder cases. At least four black defendants have been sentenced to death by all-white juries since the death penalty was reinstated in Virginia.[27] One of those defendants, Johnny Watkins, Jr., was sentenced to death in Danville for the murder of two white convenience store clerks and both juries that sentenced him to death were comprised of all-white jurors.[28] In his clemency petition, Watkins argued he “was sentenced to die by juries from which all black citizens had been systematically excluded.”[29] He stated that “[t]he six defendants sentenced to death by Danville juries have been black and only five of the 72 jurors involved in seven trials were black.”[30] In Danville, where until 2001 only black defendants had been sentenced to death, blacks comprised 6.9% of jurors in those cases while blacks comprise 48.6% of the city’s population.[31]
Other Areas of the Criminal Justice System
It does not appear that any entity in Virginia has undertaken a review of whether racial or ethnic discrimination is affecting the criminal justice system at large.[32]
Conclusion
Commendably, entities in Virginia have examined the effect of race on prosecutorial discretion to seek a capital murder indictment and to seek the death penalty. However, Virginia has not fully investigated the impact of racial discrimination in the criminal justice system as a whole. Thus, the Commonwealth of Virginia is in partial compliance with Protocol #1.
B. Protocol #2
Jurisdictions should collect and maintain data on the race of defendants and victims, on the circumstances of the crime, on all aggravating and mitigating circumstances, and on the nature and strength of the evidence for all potential capital cases (regardless of whether the case is charged, prosecuted, or disposed of as a capital case). This data should be collected and maintained with respect to every stage of the criminal justice process, from reporting of the crime through execution of the sentence.
Several Virginia agencies collect and maintain data on some of the areas described in Protocol #2.
Since 1974, the Department of State Police has maintained a uniform crime reporting system “for the purpose of receiving, compiling, classifying, analyzing and publishing crime statistics of offenses known, persons arrested, and persons charged and other information pertaining to the investigation of crime and the apprehension of criminals.”[33] The uniform crime reporting system collects data on the race, age, and gender of victims and offenders; however, the data is listed in aggregate, and does not include a separate category for capital offenses.
In addition, Virginia law requires the clerk of the circuit court in which a capital indictment is returned to file a certified copy of the indictment with the clerk of the Supreme Court of Virginia that is to be “maintained in a single place . . . and . . . available to members of the public upon request.”[34] While this requirement covers all capitally charged cases, it does not include cases in which the Commonwealth could have but chose not to charge the offense as a capital offense. Furthermore, the type of information included in an indictment may relate to the circumstances of the crime, but is unlikely to include data on race or aggravating and mitigating circumstances. The Supreme Court of Virginia also maintains a database that includes records of all appeals in capital cases where a death or life sentence was imposed since 1978, and all capital cases that resulted in a sentence of life imprisonment that were first appealed in the Virginia Court of Appeals beginning in 1986.[35] The types of data available from appellate opinions, however—such as information on the defendant or victim’s race and the circumstances of the offense—vary with each case.
Virginia law also states that “the [trial] court shall, before imposing a sentence, direct a probation officer . . . to thoroughly investigate the history of the defendant and any and all other relevant facts, to the end that the court may be fully advised as to whether the sentence of death is appropriate and just.”[36] The specific content of post-sentence reports is unknown because the reports are sealed after sentencing and available only by court order.[37] However, they are made available “at any time to any criminal justice agency…[and] to any agency where the accused is referred for treatment by the court or by probation and parole services.”[38]
Furthermore, Washington and Lee University School of Law’s Virginia Capital Case Clearinghouse (VC3) has also voluntarily collected data on capital trials throughout the Commonwealth, including “the defendant’s name, race, sex, case citation, aggravating factor, predicate felony, race and sex of the victim, county of conviction, and current status.”[39] This information, while not complete in each case, is available to the public on VC3’s website.[40]
Importantly, the unavailability of accurate and complete data affects the ability of the Commonwealth to undertake a comprehensive review of its death penalty system. JLARC researchers who conducted such a review recounted the difficulty they encountered, reporting that "[s]electing a universe or sampling frame for the study was complicated by the unique data problems associated with this subject."[41] JLARC researchers noted that “Virginia does not maintain a centralized database containing information on murder cases that can be prosecuted as capital cases.”[42] Thus the researchers had to examine files maintained by State Police and the Sentencing Commission, match data from the Sentencing Commission against cases in the Supreme Court of Virginia’s database, review indictments for persons arrested for murder, interview local prosecutors, and consult other sources in order to complete their review of death penalty cases that was released in 2002.[43] Additionally, staff visits were required in order to compile the necessary information on each case included in the study.[44] Perhaps due in large part to the difficulty of obtaining the necessary data to conduct a comprehensive review of the capital punishment system, JLARC limited the scope of its review to a sample of localities in the Commonwealth during a five-year period (1995-1999).[45]
Conclusion
Some data on the race of defendants and victims, the circumstances of the crime, and aggravating and mitigating circumstances is collected and maintained by various Commonwealth entities. However, this information is not maintained in a centralized database and may not include important and relevant data for each case. Therefore, the Commonwealth of Virginia is in partial compliance with Protocol #2.
Recommendation
Virginia should develop and maintain a centralized database that contains detailed information about all cases that can be prosecuted as capital cases. To achieve this end, Virginia should designate an appropriate entity to collect, analyze, and make publicly available salient facts on all death-eligible cases in Virginia, regardless of whether the case was resolved at trial or through a plea negotiation.[46] As discussed in Chapter Seven on Proportionality Review, it is imperative that the collection of this data be sanctioned by the Supreme Court of Virginia to ensure its reliability, trustworthiness, and admissibility.
While JLARC noted the challenges it faced in data collection of its 2002 study on capital cases, prior study commissions also have made recommendations to improve the collection of data: a 2007 report by the Supreme Court of Virginia recommended that Virginia “[e]quip[] courts of record with computer assisted transcription capability to produce text transcripts that can be searched and transmitted electronically and include links to evidence.”[47] Creation of a data collection tool would provide a mechanism through which the Commonwealth could determine whether race or ethnicity inappropriately influences outcomes in capital cases.
C.Protocol #3
Jurisdictions should collect and review all valid studies already undertaken to determine the impact of racial discrimination on the administration of the death penalty and should identify and carry out any additional studies that would help determine discriminatory impacts on capital cases. In conducting new studies, states should collect data by race for any aspect of the death penalty in which race could be a factor.
Jurisdictions and independent researchers confront considerable difficulty in isolating race of the defendant or victim from other variables that may affect outcomes in death penalty cases. As a general matter, investigations and evaluations into the impact of racial discrimination in a criminal justice system vary in scope, specificity, and reliability. These investigations may, for example, encompass several decades or only a handful of years.[48] Some may select a sample size for analysis while others rely on statewide data.[49] The explanatory power of a study depends largely on the depth of statistical analysis. In their more basic forms, studies might only compare the percentages of capitally-convicted persons sentenced to death across racial categories; alternatively, they might control for a wide variety of non-racial factors that could explain variances in capital case outcomes in an effort to isolate the effect of racial factors.[50]
Existing Studies
In 2000, the American Civil Liberties Union of Virginia undertook a review of the Commonwealth’s capital punishment system, including an examination of race and the death penalty.[51] The report analyzed murders and death sentences over a twenty-year period using the FBI’s Supplemental Homicide Reports, and found that “41 percent of victims of apparently capital crimes in Virginia were black” and “that of the 131 crimes for which a death sentence was imposed during that same period, only 20 percent involved black victims.”[52] The report summarized:
In rape-murder incidents involving whites or blacks, the probability that the offender will be sentenced to death in Virginia is about 19% if the victim is black. If the victim is white, the probability is 42%—over two times greater . . . . In robbery-murder incidents involving both white or black offenders, the probability that the offender will be sentenced to death is about 2.5% if the victim is black. If the victim is white, the probability is about 8.5%—over three times greater.[53]
The 2000 report represents an important step in examining the intersection between race and the death penalty in the modern death penalty era in the Commonwealth; however, the study did not attempt to isolate the effect of race by controlling for other factors that may influence whether a defendant will be sentenced to death.[54]