On Tuesday evening, the Texas court of criminal appeals denied Kimberly McCarthy's motion to stay her execution paving the way for the African American woman to become the 500th person the state puts to death. Although Texas has long been the most execution prone state in the union, there has been some encouraging signs in the recent past that it is growing less comfortable with this dubious distinction. This decision by the court to deny McCarthy's appeal is a victory for those who support "ultimate justice" at any cost, however, and a major setback for those who believe that justice served with a racist tinge, is no justice at all.
In addition to becoming the 500th person the state will execute, McCarthy will also be the 185th black person. This is significant because it means that in a state where African Americans make up just 12.2% of the population, they account for around 37% of those who are executed. This is disturbing of itself, but all the more so because McCarthy's application for a stay was based on claims that her conviction and death sentence were the result of a process that was infected by racial discrimination.
McCarthy was convicted in 2002 of killing her 71-year-old neighbor, Dorothy Booth. The crime was heinous by any standards, but defendants charged with heinous crimes still have the right to a fair trial in which their race, and the race of their alleged victim, play no part. This does not appear to have been the case for Kimberly McCarthy. According to the application filed by her attorney, Maurie Levin, only four non-whites made it through to the final jury selection, three of whom were struck off by prosecution lawyers. As a black defendant with a white victim, McCarthy was statistically far more likely to be sentenced to death than if she were white or if her victim were black. The fact that she was faced with an almost all white jury in a state with a miserable history of segregation and lynching can only have made her death sentence that bit more inevitable.
It would be nice to think that the selection of an almost all white jury to try a black defendant was just an unhappy coincidence but Texas' track record in this area makes this highly improbable. Back in the good old days (for some) when it was more acceptable to be openly racist, a training manual from 1963 instructed prosecutors in Dallas, Texas to "not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated".
Such obvious discrimination is not possible in this allegedly post-racial society we're supposed to be living in, but the practice of training prosecutors to exclude people based on their race is still very much in play. In 2005 the Supreme Court set aside a murder conviction handed down by a Texas court when it became apparent that prosecutors had engaged in what is known as the "Texas Shuffle", where the order of prospective jurors is rearranged so that people of color are sent to the back of the line.
This not so hidden bias in the Texas criminal justice system was acknowledged by Dallas County District Attorney Craig Watkins earlier this year when he announced plans to advocate for a new state law that would prohibit seeking or proposing the death penalty on the basis of a person's race. The law, known as the Racial Justice Act is modeled after similar laws that have been passed in North Carolina and Kentucky and would allow death row inmates to appeal their conviction and sentencing if they could demonstrate that racism had infected the process. The bill was introduced to the Texas state legislature in April but was left pending in committee when the legislature adjourned.
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One can only hope that the state legislature will take this bill and the problems it's attempting to address seriously because the indications are that the racial bias in the state's criminal justice system is getting worse not better. In 2005, a bill was signed into law that allowed juries in death penalty cases the option of sentencing a defendant to life without parole. Since then the number of death sentences being awarded in the state has dropped considerably, which would be encouraging if it were not for the fact that the percentage of people of color being sentenced to death is going up. According to an analysis by the Texas Coalition to Abolish the Death Penalty, nearly 75% of death sentences awarded over the past 5 years have been imposed on people of color, 46% African Americans and 28% Hispanic.
Meanwhile Texas Governor Rick Perry, who has presided over more executions than any governor, in any state, ever, remains a staunch advocate of the death penalty. In 2011, during his failed bid to win the Republican presidential nomination he made it clear that he has complete faith in the state's system of sending people to their deaths:
The state of Texas has a very thoughtful, a very clear process in place of which when someone commits the most heinous of crimes against our citizens – you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas and that is that you will be executed.
Unfortunately, the state's very thoughtful, very clear process appears to send black defendants to their deaths far more readily than white ones. This makes the execution of an African-American woman, after rejecting to review her claim that the process that led to her sentencing and conviction was racially biased, an all too fitting way to mark the grim 500 milestone. Whether or not the "ultimate justice" that has been dispensed in this case was actually justice is another matter.