Study after study shows that juries are far more likely to convict a black person for murder and far more likely to give them the death penalty, but the Supreme Court has done almost nothing to help fix that. But they did grant a reprieve in a case where a juror said some horribly racist things.
The summary decision came in the case of Keith Tharpe, who in 1991 was sentenced to death for the murder of his sister-in-law. Seven years later, Tharpe’s attorneys obtained an affidavit from one of the jurors who had convicted him; among other things, the juror used racial slurs to refer to black people, and he told the attorneys that he had “wondered if black people even have souls.” But the state post-conviction court would not consider any evidence of potential racial bias, and a federal district court also declined to consider that evidence. Tharpe tried to have the district court’s ruling reopened and reconsidered, but the U.S. Court of Appeals for the 11th Circuit rejected his request. Today the Supreme Court threw Tharpe a lifeline by sending his case back to the lower courts.
Tharpe was originally scheduled to die on September 26, but the justices – over a dissent from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – blocked his execution to give them time to consider his appeal fully. In an unsigned opinion that runs just over two pages, the court acknowledged today that the state court’s conclusion – that the juror’s “vote to impose the death penalty was not based on Tharpe’s race” – was “binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.” But, the court continued, the affidavit (which the court described as “remarkable”) nonetheless “presents a strong factual basis for the argument that Tharpe’s race affected” the juror’s vote for the death penalty. “At the very least,” the court reasoned, “jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.”
But it isn’t just him. The Supreme Court has applied such a high standard to such cases that it’s virtually impossible for anyone to get granted a retrial or a commutation of their sentence even when there is clear evidence of racial discrimination on the part of the prosecutor, judge or jury. Almost nothing short of an admission that they hate black people and knew that this defendant was innocent but they railroaded them anyway is good enough to meet that standard. We can hope that this action signals a new course, but I’m highly doubtful that will be the case.