Last October, the LWVOR and several other local organizations joined with Tennesseans for Alternatives to the Death Penalty (TADP) in sponsoring a virtual forum on Race, Wrongful Conviction and the Death Penalty. Focused on the current status of the death penalty both nationally and in Tennessee, the forum raised significant questions.
According to the Death Penalty Information Center, numerous polls across the country indicate the death penalty is steadily losing support. A 2019 Gallop poll, for example, found a record high of 60 percent of respondents opting for life without parole, compared to only 36 percent favoring the death penalty—a 15-percentage point shift in just five years. Twenty-two states have abolished capital punishment and fifteen states with the death penalty have pending legislation to abolish it.
Of particular concern, a long line of studies indicate that the death penalty unjustly targets minorities, especially Blacks. According to the Equal Justice Initiative, the death penalty is disproportionately reserved for Blacks and other minorities, the poor, and those who suffer from mental illness. In 2012, the Equal Justice Initiative looked at jury selection procedures in eight Southern states, including Tennessee. It found shocking evidence of racial discrimination in each state, including counties where prosecutors excluded nearly 80% of Blacks qualified for jury service, majority Black counties where defendants were tried by all-white juries, and some prosecutors who were actually trained to exclude people from juries based on race and to cover up the fact they were doing so.
Tennessee has a long history of executions, but it had a 40-year hiatus from 1960 to 2000. Since then, Tennessee has put 13 people to death and delayed four executions because of the COVID crisis. In the decade from 2007 to 2017, eight of nine new death sentences in Tennessee were given to Black defendants.
A recent study of Tennessee's death penalty concludes that the state's capital- punishment system is "a cruel lottery" that is "riddled with arbitrariness." Published in the Tennessee Journal of Law and Policy, the study examined first-degree murder cases in Tennessee since 1977, seeking to determine whether the state had addressed the arbitrariness that led the U.S. Supreme Court in 1972 to declare the nation's death- penalty laws unconstitutional. Entitling the study Tennessee's Death Penalty Lottery, the authors concluded that the odds "are close to nil" that a person supplied with a description of the 2,514 first-degree murder cases prosecuted in the state in the last forty years could identify the 86 death sentences which have been sustained on appeal. Nor is it likely that anyone looking at the details of the cases could distinguish the six cases that actually resulted in executions. The facts of the crime, the study concluded, did not predict whether a death sentence would be handed down. Arbitrary factors, such as the county in which the trial took place and the race and income level of the defendant were, on the other hand, decisive.
The 1987 Supreme Court ruling in McCleskey v. Kemp opened the doors for the resumption of executions despite solid statistical evidence that those convicted of killing white rather than black victims were four times more likely to be given the death penalty. Justice Lewis Powell, who wrote the majority decision, later spoke to the regrettable legacy of that 5/4 decision. Asked upon retirement if there was a decision he would like to go back and change, he indicated he would like to change his vote in McCleskey v Kemp. Similarly, Justice John Paul Stevens, who had dissented from the ruling, stated after his own retirement, “That the murder of Black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once- prevalent Southern lynchings.” Anthony Amsterdam, law professor at NYU, added his voice to those of many others who spoke of the decision to resume executions as “the Dred Scott decision of our time. It is a declaration that African-American life has no value which white men are bound to respect. It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them.”
The Death Penalty Information Center’s Enduring Injustice report released in September confirms and carries forward charges of “the outsized role” race plays in the death penalty. Not only, it finds, are persons killing white persons rather than black four times more likely to be sentenced to death. It is also the case that persons sentenced to death for killing whites are seventeen times more likely to have their sentence carried out. The center’s online Fact Sheet incorporates the report in its summary of the plighted status of race and the death penalty. “It’s not necessarily that the death penalty has a race problem,” observes University of Denver Law Professor Scott Phillips, one of two authors of the Enduring Injustice report. “It’s more that the United States has a race problem that happens to infect the death penalty.”
In its current Guide to Public Policy, the national League of Women Voters states its position on the death penalty as adopted at its 2006 Convention: “The League of Women Voters of the United States supports the abolition of the death penalty” (p. 90). Accordingly, concern and responsible action by league chapters and members on the state and local level is indicated.
As we discovered in last fall’s virtual forum, Tennesseans for Alternatives to the Death Penalty (TADP) is a valuable resource for keeping informed and actively involved in addressing the death penalty in TN. Go to the TADP home page to sign up to receive newsletters and action updates on current cases. While there, click on the link to view TADP’s To Honor Life film, and follow the home page links to learn more about Pervis Payne, whose case is claiming nationwide scrutiny. On death row for 33 years, Mr. Payne is scheduled to die despite the fact that he suffers from an undisputed intellectual disability, which in and of itself makes him ineligible for the death penalty. Approaching execution last month, he was given a reprieve until April 9, 2021, putting him in a race with the clock as the current legislative session considers HB0001 which would allow those with intellectually disability, whose conviction is final, to petition the trial court for a determination of whether the defendant is ineligible for the death penalty because of intellectual disability. (Read the The Innocence Project’s “8 Things You Need to Know about Pervis Payne” to learn more about the multiple issues in the case).
The League of Women Voter’s support of abolition of the death penalty is timely, particularly when we recognize the grievous extent to which its current practice is fraught with inequity. The good news is that we can join our voices with the increasing number of citizens across the nation demanding change. We can inform ourselves of the issues involved in current death row cases and speak up on their behalf. Timely and well informed letters to the editor and to members of Congress and the State Legislature and Governor are certainly in order. Silence in the face of the inequities of the death penalty enables the death penalty. Raising our voices, on the other hand, is the means for making the death penalty in our state and country a thing of the past. We should make certain our voices are heard.
~Submitted by Carolyn Dipboye