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Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 SANTA CLARA LAW REVIEW 433 (1995)


Capital punishment, one of America’s most prominent vestiges of slavery and racial violence, is flourishing once again in the United States. After a moratorium on executions in the 1960s and ‘70s, the execution of human beings by the state has become “routine.” Over 3,000 men, women and children are on death rows throughout the nation waiting to be electrocuted, injected, shot, hung or gassed.

Those being executed and awaiting their deaths are no different from those selected for execution in the past: virtually all are poor; about half are members of racial minorities; and the overwhelming majority were sentenced to death for crimes against white victims. Many suffer from severe mental impairments or limitations and many others were the victims of the most brutal physical, sexual and psychological abuse during their childhoods.

The death penalty was declared unconstitutional in 1972 due to arbitrariness and discrimination against racial minorities and the poor. New capital punishment laws, supposedly designed to prevent arbitrariness and discrimination, were upheld by the Supreme Court in 1976. But race and poverty continue to determine who dies. The poor are frequently represented by inept court-appointed lawyers, who often fail to protect the rights of their clients and fail to provide juries with critical information needed for the sentencing decision, leaving the accused virtually defenseless. Prosecutors are given wide discretion in deciding whether to seek the death penalty and juries are given great discretion in deciding whether to impose it. This discretion provides ample room for racial prejudice to influence whether the accused lives or dies.

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