While the Supreme Court rejected the use of the death penalty in cases involving aggravated rape of child victims in Kennedy v. Louisiana in 2008, there was no suggestion in the Court’s decision that overall support for capital punishment within the Court and the country had significantly diminished. In fact, one of the rather amazing aspects of the 2008 presidential election was that Democratic Party nominee Barack Obama agreed with Justice Alito’s dissent, expressing his belief that capital punishment should be authorized for certain rapists who have committed violent sexual offenses against child victims. The effect—regardless of intent—of Obama’s statement, supported by his prior writings, was to neutralize any Republican attacks that would have cast him as soft on crime, a lesson learned by Democrats in the failed 1988 candidacy of Michael Dukakis. Perhaps the most interesting and undiscussed aspect of Obama’s declared support for the application of capital punishment to child rape is the fact that his view contrasts so sharply with attitudes held by a majority of African Americans.
In considering the broad question of whether the administration of the death penalty is tainted, perhaps inherently so, by the continuing existence of racially discriminatory attitudes in American society, a complete assessment requires that virtually all aspects of the operation of the criminal law and criminal justice system be reviewed. A comprehensive examination would almost necessarily include inquiry about the root causes of violent crime, persistent effects of lingering racism in social attitudes, disparate impact of certain public policies on members of ethnic minority groups, the roles of poverty and drug abuse within various communities in influencing behavioral choices, and the responses of law enforcement officials and prosecutors to violent crime—in this context murders—that may qualify for treatment as capital offenses. A thorough, overall assessment of capital punishment and its administration as it impacts ethnic minorities and American society, generally, is beyond the scope of any single discipline. Perhaps more significantly, for the purposes of legal analysis, it is almost certainly beyond the expertise and scope of authority vested in the judicial system. If addressed at all, it would seem to be a matter of investigation that must be undertaken with serious commitment to fact finding by the legislative branch.
This Article focuses on the disparity in support for the death penalty among black and white Americans and the dilemma created by this disparity in any meaningful effort to combat influences and perceptions of racial discrimination in the administration of the death penalty. The dilemma involves a problem created when lack of support for the death penalty among African Americans compromises the composition of capital juries in such a way that the capital sentencing process threatens to become a system in which minority jurors are excluded from this critical aspect of the criminal justice process altogether.
