America’s death penalty always has been haunted by the specter of racial prejudice and discrimination. The Reverend Jesse Jackson captured this disturbing fact in the title of his 2003 book, Legal Lynching: the Death Penalty and America’s Future.
Since then, other commentators have argued that the Supreme Court’s death penalty jurisprudence has been animated by a desire to scrub capital punishment clean from the historical legacy Jackson’s title references. Yet throughout that jurisprudence, judges have focused only on problems in the criminal justice system, including prosecutorial charging decisions, jury verdicts, sentencing decisions, and the government’s choice of whom to execute.
At each stage of the death penalty process, lawyers and judges have noted disturbing differences correlated with the defendant’s race, the victim’s race, or both. And they have argued about whether such differences present constitutional difficulties.
But in two cases now working their way through the Arizona court system, defense lawyers from the Capital Unit of the Maricopa County Office of the Public Defender are offering a truly innovative argument, one that promises to broaden and transform the conversation about race and capital punishment. They are calling attention to systemic racism in all aspects of American life and showing how it manifests itself in the life-and-death decisions made throughout the death penalty system.
Theirs is a bold effort to get courts to widen their lens to better understand why racism in the death penalty process is pervasive, hard to eradicate, and incompatible with constitutional commitments.
If they succeed, they may alter the legal landscape across the nation.
Before looking more closely at that effort, let’s look at the particular cases in which they are making their argument and at the way race usually has been discussed in death penalty jurisprudence.
First, the cases.
Arizona wants to execute Chazmon Washington and Alan Milan Ross. But their lawyers have filed motions asking the Maricopa County Superior Court to dismiss the state’s notice of intention to seek the death penalty on the grounds that capital punishment is unconstitutional in the way it is applied.
According to a report in AZCentral, Washington faces multiple charges, including “first-degree murder, assisting a criminal street gang, seven counts of aggravated assault and 28 counts of endangerment” arising from a drive-by shooting in 2021 that killed a 1-year-old boy and injured six others.
Ross was arrested in 2017 for the murder of his ex-wife and their two children. He was taken into custody after exchanging gunfire with officers following a six-hour standoff at his Phoenix home. He was charged with three counts of first-degree murder, two counts of aggravated assault, 19 counts of aggravated assault on an officer, and one count of discharging a firearm within city limits.
Washington and Ross are Black men accused of interracial killings.
For the past half-century, the question of how racial minorities fare in capital cases has played a central role in constitutional challenges to capital punishment. Those challenges have alleged that Black defendants are more likely than White defendants to get death sentences, even when they commit comparable crimes.
In 1972, the United States Supreme Court’s Furman v. Georgia decision halted capital punishment. It struck down state laws that left the decision of whether someone convicted of a capital crime should receive a death sentence to the untrammeled discretion of judges or juries. Such laws created a constitutionally unacceptable risk that judges or juries would exercise their discretion in a racially discriminatory way.
As Justice William Douglas famously wrote, “Discretion is pregnant with discrimination.”
Note that Furman focused on defects in legal procedure and treated the problem of discrimination in capital sentencing as arising from the leeway those procedures gave to individual racists.
According to sociologist David Garland, the Court in Furman agreed that the states’ death penalty processes were “often summary, arbitrary, and perhaps even racist, but it insisted on drawing a distinction. Legal lynching was illegal, even unconstitutional, but its constitutional flaws went to procedure and not to substance.”
Four years later, in Gregg v. Georgia, the Court decided that a set of procedural tweaks were sufficient to guide jury discretion and ensure, as Justice Potter Stewart wrote, that “no longer can a jury wantonly and freakishly impose the death sentence.”
In 1987, the Supreme Court was again presented with a challenge to the constitutionality of the death penalty on the ground that guided discretion statutes had failed to eliminate racism from death sentencing. The challenge relied on law professor David Baldus’ extensive empirical analysis of all death sentences imposed under Georgia’s guided discretion statute.
The Baldus study showed that people accused of murdering a White victim in the state of Georgia were more than 4.3 times as likely to get a death sentence as those whose victims were persons of color.
But the Court was unpersuaded that this was a sufficient reason to strike down the death penalty. Because the defendant “could not prove that purposeful discrimination” existed in his trial, there was no constitutional violation.
Since then, many studies have replicated Baldus’ conclusions in one death penalty jurisdiction after another, and new evidence has emerged that racial bias is present elsewhere in the system, including in decisions about which death row prisoners are actually executed.
But, with few exceptions, judges have treated racial discrimination in capital sentencing as a problem caused by a few bad apples and used procedural fixes to address it. Death penalty litigation seems to have run into a log jam in which the same kinds of arguments and data are repeatedly offered with little effect.
Enter Maricopa County’s Office of Public Defender.
Their motions to dismiss in the Washington and Ross cases once again rely on social science evidence to document a pattern of racial discrimination in capital sentencing in Arizona.
But, in a Brandeis-brief-like move, the defense lawyers were not content to let their case rest there.
They want to get beyond a focus on proceduralism and on individual acts of discrimination to highlight, instead, the systemic racism that manifests itself in capital cases.
The public defenders contend that courts will never come to terms with the persistence of racially disparate outcomes in capital cases unless they, as the lawyers put it in their motions, understand “how the color of skin is given meaning by the culture within which we live.”
They cite study after study and offer page after page of evidence documenting racial discrimination in all major American institutions, including education, banking, housing, health care, employment, and policing. In so doing, they demonstrate that our culture and our law continue to be burdened by a history that made “Black skin” a badge of inferiority and a target of animus.
In the end, the lawyers rightly note that those studies and that evidence “far exceed[] the Baldus study.” They show that an “unacceptable risk of racial prejudice” continues to burden the application of death penalty statutes.
It is, of course, far too early to know whether the Arizona public defenders will succeed in derailing the state’s capital prosecutions. But it is not too early to applaud them for insisting that judges (and the rest of us) remember that law does not exist in a vacuum.
Their carefully crafted and extensively documented motions call on judges to confront the reality of America’s racist past and continuing institutional racism before they allow the government to carry out any more legal lynchings.
