Abstract

Excerpted From: John Nidiry and Ruth Friedman, Long Overdue: The Need for an Examination of the Specter of Racial Bias in the Federal Death Penalty System, 67 Howard Law Journal 225 (Spring, 2024) (103 Footnotes) (Full Document Requested)

Persistent criticism of and commentary on the racially disparate application of the death penalty in this country have focused almost exclusively on state capital punishment systems, leaving the indicia of racial bias and the evident racial disparities in the federal government's administration of the death penalty largely unexamined. This Article contends that such an examination is long overdue.

While the population of the federal death row is not as large as that of states like California and Texas, the federal government is a highly visible actor, whatever the issue; its role on the capital punishment stage recently became more prominent when it briefly led the nation in the pace of executions. Yet many aspects of the federal death penalty remain largely unexplored. In particular, although racial disparities are among the system's most salient features, the role of race in the implementation of the federal death penalty has yet to be scrutinized.

The primary focus on state capital punishment systems is not surprising. Most death sentences and executions have taken place in the states, historically and throughout the “modern era” of the death penalty. In 1972, when the U.S. Supreme Court held in Furman v. Georgia that capital punishment statutes across the country were unconstitutional because they were arbitrarily and capriciously administered in violation of the Eighth and Fourteenth Amendments, many states--in contrast to the federal government-- pressed forward immediately and aggressively with revamped death penalty schemes. These new statutes led the Court to reverse course just four years later in Gregg v. Georgia. Within months of the Court's decision in Gregg, states once again began pursuing death sentences and conducting executions, ushering in the “modern era” of the death penalty.

By comparison, it was not until 1988 that the United States Congress reinstated the federal death penalty, initially only for certain drug-related offenses under the Anti-Drug Abuse Act. Congress then significantly expanded the use of capital punishment for numerous federal offenses in 1994 when it passed the Federal Death Penalty Act. The first federal death sentence of the modern era was imposed in 1991, and the first federal execution was carried out in 2001, over two decades after Gregg.

Since Congress reinstated the federal death penalty more than thirty-five years ago, the specter of racialbias in its implementation has proven both chronic and pervasive. The enduring racial disparities of the modern era, the emerging evidence of similar disparities in the administration of the federal death penalty pre-Furman, and federal practices leading to less diverse jury pools and sitting juries all suggest a need for careful examination of the impact of race in our federal capital system.

Scholars have studied the disproportionate impact of state capital punishment systems on Black Americans and linked those disparities to racialized violence at both the state and county level, tracing their roots to the institution of slavery, Black Codes, convict leasing, and racial terror lynchings. The body of academic work about the federal death penalty, on the other hand, especially that which concerns the appearance of bias in its administration, is “surprisingly thin.” The unprecedented string of thirteen executions carried out by the federal government in a six-month period in 2020 and 2021--the most under one presidential administration in a century--brought renewed public, and scholarly, attention to the federal death penalty. But, with rare exceptions, little of it has focused on race.

Scholarship related to federal capital punishment in the modern era has tended to focus on its purported uniqueness--that is, the special features built into the federal capital case review process or issues peculiar to the federal system. In addition, scant attention has been paid to the federal administration of capital punishment prior to Furman. In the rare instances where scholars have examined it, they have for the most part done so with a narrow focus on its legislative history.

This emphasis on the federal system's uniqueness has obscured the extent to which it mirrors the state systems, particularly when it comes to its disproportionate impact on people of color. This Article urges scholars of race and criminal justice as well as the federal government itself to address these apparent inequities. Although the federal system has been described as a “'bit player’ in the larger drama of capital punishment” playing out in the states, the federal death penalty carries outsized importance, implicating executive presidential powers, the nation's highest level law enforcement agency (the Department of Justice) and Congress. It also has, as a result of the spate of executions in 2020 and 2021, been thrust more recently into the national spotlight. For those studying the disproportionate impact of our nation's penal system on Black Americans and people of color generally, and especially for policymakers, an examination of the role race has historically played, and plays today, in the federal government's use of the ultimate punishment is imperative.

This Article proceeds in four parts. Following this Introduction, Part II describes the racially disparate patterns that have become entrenched in the administration of the federal death penalty in the modern era as well as some of the federal policies and practices that contribute to the persistence of those patterns. Part III discusses recent findings that suggest the roots of present-day disparities run deeper than previously acknowledged. Part IV describes the lackluster efforts undertaken to date by the federal government and others in examining how the federal death penalty has come to be imposed so disproportionately on people of color and in cases involving white victims. The Article concludes with a call for a serious inquiry on the part of both scholars and policymakers into issues that have long garnered attention at the state level.

[. . .]

Most commentary and scholarship on the death penalty understandably focuses on the states. This necessarily includes inquiries into what role race may be playing in the administration of the ultimate punishment. Scholars, practitioners, and some lawmakers who have examined these issues at the state level have rooted persistent racial disparities as well as practices that exclude people of color from juries in the jurisdiction's history of racial violence and discriminatory policies sometimes dating back centuries.

It is well past time for the federal government to be subject to the same scrutiny. Its implementation of capital punishment cannot be divorced from history, and too many questions about potential racialbias and the federal death penalty, as this Article demonstrates, remain unanswered. The federal government must undertake its own close examination of the role race of both defendant and victim play in the federal capital case selection and review process and should consider making available currently inaccessible information relating to those procedures. This includes data related to what factors drive a decision to decline the death penalty in one case but not another; how the decision is made to prosecute federally when state prosecution is available; and why some districts impose the death penalty so disproportionately, and sometimes only, against people of color. By doing so, scholars and practitioners might begin to understand how people of color, and Black men especially, end up chronically overrepresented on federal death row. The Department of Justice should also review and reconsider the federal practices that drain capital juries of people of color in light of the history of racial discrimination in jury participation. And, critically, scholars must delve into the underexamined history of the federal death penalty, unique and otherwise, that shaped the development of the racially skewed system we have today.

John Nidiry is a Visiting Professor of Legal Writing at the University of Maine School of Law.

Ruth Friedman is the Director of the Federal Capital Habeas Project, a program administered by the Federal Public Defender system that recruits and assists lawyers for federal death row prisoners, represents defendants in post-conviction proceedings, and collects relevant data for attorneys and the courts.