The impact of race on the criminal justice system—the death penalty, in particular—will be considered by the 11th Circuit Court of Appeal, as the Justices hear Keith Tharpe’s appeal of a 1990 murder conviction. Death row inmates are beginning to point out blatant anti-black racism in jurors, and the justices will be asked whether the blatant racism tainted proceedings in Georgia and Oklahoma. One of the appeals comes from Georgia inmate Keith Tarpe, after whose trial a juror stated in a sworn affidavit that “I have wondered if black people even have souls.” Other jurors had similarly internalized anti-black sanism, considering Tarpe’s conviction an example “to other blacks who kill blacks“. Marcy Widder, Tarpe’s attorney, urges the Justices to deeply consider how the jurors’ biases coloured his trial and tainted his death sentence.
In 2017, Justice Kennedy crafted an exception to longstanding laws that prevent courts from examining jury deliberations. In Buck v Davis, Justice Roberts acknowledged that “Buck may have been sentenced to death in part because of his race,” noting that “the law [should punish] people for what they do, not who they are.” Weeks later, in Peña-Rodriguez, the Supreme Court said that if a juror makes a clear statement showing they relied on racial stereotypes to convict a defendant, then courts can consider the juror’s statement as evidence of a violation of the right to an impartial jury (Sixth Amendment).
Tharpe and NAACP Legal Defense argue that Peña-Rodriguez should apply, particularly since this is a death penalty case. They also contend that Tharpe’s claim is even stronger than Buck’s, because there the court was concerned with the mere possibility that the jury sentenced Buck to death because he was black (while in this case, it is a compelling argument). The state argues that there is no evidence racial bias was discussed during deliberations, seeking to distinguish Tharpe’s case from Peña-Rodriguez. This decision will not necessarily spare Tharpe from execution; it is a procedural ruling, but will give Tharpe a chance to persuaded the court that he was denied a constitutional right.
This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.