Kennedy v. Louisiana Brief Amicus Curiae in Support of Petitioner

    07-343

IN THE

xxpvtxnt (Einxxi af tljp ^ntteh inies

Pa t r ic k  K e n n e d y , 

L o u is ia n a ,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI 
TO THE LOUISIANA SUPREME COURT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL 
LIBERTIES UNION, THE ACLU OF LOUISIANA, AND 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., IN SUPPORT OF PETITIONER

T h e o d o r e  M. S h a w  
Director-Counsel 

J a c q u e l in e  A. B e r r ie n  
Ch r is t in a  Sw a r n s  
NAACP Legal Defense and 

E ducational Fund, Inc.
99 H udson S treet 
16th Floor
New York, New York 10013 
(212) 965-2200

J o h n  H o l d r id g e  
(Counsel o f Record) 

Ch r is t in e  D e M a s o  
A m erican Civil L iberties 

Union Foundation 
201 West M ain S treet 
Suite 402
Durham, North Carolina 27701 
(919) 682-5659

(Counsel continued on inside cover)



K a t ie  M. S c h w a r t z m a n n  
ACLU Foundation of 

Louisiana 
P.O. Box 56157 
New Orleans, Louisiana 70156 
(504) 522-0617

S t e v e n  R. S h a p ir o  
D e n n is  D. Pa r k e r  
Am erican Civil L iberties 

Union Foundation 
125 Broad S treet 
New York, New York 10004 
(212) 549-2500



TABLE O F C O N TEN TS

TABLE OF AUTHORITIES........................................... ii
INTEREST OF AMICI........................................   1
SUMMARY OF ARGUMENT................   2
ARGUMENT.................................................................... 4
APART FROM THE HISTORICAL WILLING­
NESS OF SOUTHERN STATES TO EXECUTE 
BLACKS FOR RAPING WHITE WOMEN AND 
CHILDREN, AMERICAN SOCIETY HAS LONG 
VIEWED DEATH AS A DISPROPORTIONATE 
PENALTY FOR THE RAPE OF A VICTIM OF 
ANY AGE.......................................................................... 4

A. Historically, prosecutors and jurors 
have been unwilling to authorize 
the death penalty for rape,
including child rape............................................  5

B. Historically, the death penalty for rape was
reserved for blacks in the South, especially 
those convicted of raping white women and 
children................................................................... 7

C. Stark racial biases and tensions continue to
affect Louisiana and other parts of the 
nation....................................................................14

CONCLUSION.........................    20

i



TABLE O F A U T H O R IT IE S

Cases
Adarand Constructors Inc., v. Pena,

515 U.S. 200 (1995)...................................................  15
Alexander u. Louisiana, 405 U.S. 625 (1972)............. 2

A tkins v. Virginia, 536 U.S. 304 (2002)............ ......... 4
Batson u. Kentucky, 476 U.S. 79 (1986).......... . 2
Buford v. State, 403 So.2d 943 (Fla. 1981)..................6
Kimbrough v. U.S., 128 S.Ct. 558 (2007)..................  18
Coker v. Georgia, 433 U.S. 584 (1977)............ 2, 4, 5, 6
Dorsey v. State, 108 Ga. 477. 34 S.E. 135 (1899)...... 9
Furman v. Georgia, 408 U.S. 238 (1972)........... ......... 2
Ham v. South Carolina, 409 U.S. 524 (1973)............ 2
In  re Ellender, 889 So.2d 225, 227 (La. 2004)..........18
Johnson v. California, 545 U.S. 162 (2005)......... ......2
Leatherwood v. State, 548 So.2d 389 (Miss. 1989).... 6
McClesky v. Kemp, 481 U.S. 279 (1987)...................... 2
Miller-El u. Cockrell, 537 U.S. 322 (2003)..................2
Miller-El v. Dretke, 545 U.S. 231 (2005)...............2, 17
Parents Involved in Community Schools v. Seattle

School District No. 1 ,__U .S .__ ,
127 S.Ct. 2738 (2007)..............................................  15

l i



Penry v. Lynaugh, 492 U.S. 302 (1989)....................... 4
Roper v. Simmons, 543 U.S. 551 (2005)..................2, 4
Swain v. Alabama, 380 U.S. 202 (1965)..................... 2
Thompson v. Oklahoma, 487 U.S. 815 (1988)............ 4
Trop v. Dulles, 356 U.S. 86 (1958)................................4
Upshaw v. State, 350 So.2d 1358 (Miss. 1977)..........6
Washington v. State, 138 Ga. 370,

75 S.E. 253 (1912).......................................................9

Statutes
Ga. Acts of 1816 No. 508 § 1 ..........................................9
Ga. Penal Code of 1816, §§ 33-34..................................8
La. Sess. Acts 1857.........................................................8
Miss. Code Ann. § 97-3-65 (Supp. 1976)..................... 6

Other Authorities
Katharine K. Baker, Once a Rapist? Motivational 

Evidence and Relevancy in Rape Law,
110 Harv. L. Rev. 563 (1997)...........................  13, 16

Stuart Banner, THE DEATH PENALTY: An AMERICAN 
History 139-42 (2002)...................................... 7, 8, 9

Ralph Blumenthal, New Investigation in Texas E- 
mail Case, N.Y Times, January  9, 2008......... 18

Ralph Blumenthal, Prosecutor, Under Fire,
Steps Down in Houston, N.Y. Times,
February 16, 2008...................................................... 19

William J. Bowers, LEGAL HOMICIDE: DEATH AS 
Punishment in America 1864-1982 (1984)..........8

iii



S u san  B row nm iller, AGAINST OUR WILL: MEN, 
Women, and Rape (1975).............................................9

Leslie Casimir, e t al., Black Leaders Urge Rosenthal 
to Step Down, Houston Chronicle, Jan. 12, 2008.19

Deborah Denno, Getting to Death: Are Executions 
Constitutional1?, 82 Iowa L. Rev. 319 (January-
1997) ....... ................................................. ............ ..........10

Stanley Elkins, SLAVERY (1976)...................... .............. 9

Burk Foster, Struck by Lightning: Louisiana’s 
Electrocutions for Rape in the Forties and Fifties, 
available at
http://www.burkfoster.com/StruckbyLightning.htm 
......... ....... .................. ........................ ............... ................... 11

John Hope Franklin  & Alfred A. Moss., Jr., FROM 
Slavery to F reed om  (1988)................................8, 9

Brandon L. G arrett, Judging Innocence, 108 Colum. 
L. Rev. 55 (2008)........................................................  15

Robert J. H unter, et al., The Death Sentencing of 
Rapists in Pre-Furman Texas (1942-1971):
The Racial Dimension, 20 Am. J. Crim. L. 313 
(1993)................... .................................... . 11, 12, 14

Bud Kennedy, Ghosts From Yesterday’s Gaffes 
Spookier in Writing, Fort Worth Star-Telegram, 
Jan. 13, 2008............................................................... 19

Lamar, Compilation of the Laws of Georgia, 571 
(1821).......................................................................... ...9

Jam es W. M arquart, et al., The Rope, THE CHAIR, 
and the Needle (1994)............ .................... 5,12, 13

IV



Jeffrey J. Pokorak, Rape as a Badge of Slavery: The 
Legal History of, and Remedies for, Prosecutorial 
Race-of-Victim Charging Disparities, 7 Nev. L.J. 1 
(2007)................................ ......................................... .10

Bill Quigley & M aha Zaki, The Significance of 
Race: Legislative Racial Discrimination in 
Louisiana, 1803-1865, 24 S.U. L. Rev. 145 (1997). 8

Michael L. Radelet, Executions of White for Crimes 
Against Blacks: Exceptions to the Rule?, 30 Soc. Q.
529 (1989)..................................................................... 7

Hilary Russ, McCowen Jurors Face Bias Complaints, 
Cape Cod Times, Jan . 10, 2008................................ 17

J u d ith  K elleher Schafer, SLAVERY, THE CIVIL WAR, 
and  the  Su prem e  Court of Louisiana  (1994)..... 9

Devona Walker, Oklahomans to Protest Sentences, 
The Daily Oklahoman, Sept. 20, 2007.................. 19

U.S. Department of Health & Human Services,
Child Maltreatment 2005 (2007)..............  13

U.S. Dep’t of Justice, Bureau of Prisons, National 
Prisoner Statistics, Bulletin No. 45, Capital 
Punishment 1930-1968 (1969)................................. 10

U.S. Sentencing Commission, Report to Congress: 
Cocaine and Federal Sentencing Policy (May 2002), 
available at http://www.ussc.gov/r_congress/ 
02crack/2002crackrpt.pdf..................................... ....18

Marvin E. Wolfgang & Marc Riedel, Race, Judicial
Discretion, and the Death Penalty, 407 Annals of 
the Am. Acad, of Pol. and Soc. Sci. (1973) .....passim

v

http://www.ussc.gov/r_congress/


INTEREST OF AMICI1

The American Civil Liberties Union (ACLU) is 
a nationwide, nonprofit, nonpartisan organization 
with more than 500,000 members dedicated to the 
principles of liberty and equality embodied in the 
Constitution and the nation’s civil rights laws. The 
ACLU of Louisiana is one of its statewide affiliates. 
Amici respectfully submit this brief to assist the 
Court in resolving serious questions regarding the 
constitutionality of the use of the death penalty as a 
punishm ent for child rape. Given its longstanding 
in terest in the protections contained in the 
Constitution, including the Eighth Amendment’s 
prohibition against cruel and unusual punishment, 
the proper resolution of those questions is a m atter of 
substantial importance to the ACLU and its 
members.

The NAACP Legal Defense and Educational 
Fund, Inc. (LDF), is a non-profit corporation formed 
to assist African-Americans in securing their rights 
by the prosecution of lawsuits. Its purposes include 
rendering legal aid without cost to African- 
Americans suffering injustice by reason of race who 
are unable, on account of poverty, to employ legal 
counsel on their own. For many years, its attorneys 
have represented parties and it has participated as

1 P ursuant to Rule 37.3, letters of consent from the parties have 
been submitted to the Clerk of the Court. Pursuant to Rule 
37.6, counsel for amici states that no counsel for a party 
authored this brief in whole or in part, and no counsel or party 
made a monetary contribution intended to fund the preparation 
or submission of this brief. No person other than amici curiae, 
their members or their counsel made a monetary contribution 
to its preparation or submission.

1



amicus curiae in th is Court, in the lower federal 
courts, and in state courts.

The LDF has a long-standing concern with the 
influence of racial discrimination on the criminal 
justice system in general, and on the death penalty 
in particular. Accordingly, LDF represented the 
defendants in, inter alia, Furman v. Georgia, 408 
U.S. 238 (1972), Coker v. Georgia, 433 U.S. 584 
(1977), McClesky v. Kemp, 481 U.S. 279 (1987), 
Swain v. Alabama, 380 U.S. 202 (1965), Alexander v. 
Louisiana, 405 U.S. 625 (1972), and Ham v. South 
Carolina, 409 U.S. 524 (1973), and appeared as 
amicus curiae in Batson v. Kentucky, 476 U.S. 79 
(1986), Miller-El v. Cockrell, 537 U.S. 322 (2003), 
Miller-El u. Dretke, 545 U.S. 231 (2005), Johnson v. 
California, 545 U.S. 162 (2005), and Roper v. 
Simmons, 543 U.S. 551 (2005).

SUMMARY OF ARGUMENT
In this brief, amici explore the historical 

record of the use of the death penalty for rape. This 
record establishes a longstanding societal consensus 
th a t the death penalty is a disproportionate penalty 
for the rape of victims of all ages. The sole exception 
has been the historical willingness of southern states 
to execute blacks for rape, especially those convicted 
of raping white women and children.

Historically, the use of the death penalty for 
rape, far more than  any other crime, has been driven 
by obvious racial discrimination. Apparently, no 
white man has ever been executed in the U.S. for the 
non-homicide rape of a black woman or child. Capital 
punishm ent for rape has its roots in the antebellum 
South, where even the attem pted rape of a white

2



female by a slave m andated a death sentence, but 
where a slave woman could not be raped by her 
master, and where her rape by another white man 
was merely a trespass against her master. The end 
of the Civil War saw an extraordinary rise in the 
frequency of lynching, and the most common 
justification was that white women needed protection 
from black rapists and attem pted rapists.

The scourge of racial bias continued unabated 
through much of the 20th century, when black men 
convicted of rape in the South received death 
sentences in grossly disproportionate numbers, 
especially when they were convicted of raping a 
white woman or child. Between 1930 and 1972, 455 
people were executed for rape in the United States; 
405, or 89.1 percent, were black, and 443 were 
executed in former Confederate states. During this 
period, Louisiana, Mississippi, Oklahoma, Virginia, 
West Virginia, and the District of Columbia did not 
execute a single white m an for rape, but together 
these jurisdictions executed 66 blacks. Arkansas, 
Delaware, Florida, Kentucky, and Missouri each 
executed one white man for rape during this period, 
but together they executed 71 blacks.

This blot on the historical record, particularly 
in light of the stark racial biases and tensions tha t 
continue to affect Louisiana and other parts of the 
nation, is yet another compelling reason for this 
Court to refuse to countenance the use of the death 
penalty for rapists, including child rapists.

3



ARGUMENT
APART FROM THE HISTORICAL 
WILLINGNESS OF SOUTHERN STATES TO 
EXECUTE BLACKS FOR RAPING WHITE 
WOMEN AND CHILDREN, AMERICAN 
SOCIETY HAS LONG VIEWED DEATH AS A 
DISPROPORTIONATE PENALTY FOR THE 
RAPE OF A VICTIM OF ANY AGE.

Under the Eighth Amendment, death is an 
excessive penalty for a crime when its imposition is 
contrary to “‘civilized’” or ‘“evolving”’ ‘“standards of 
decency.’” Roper v. Simmons, 543 U.S. a t 561 (2005) 
(quoting Thompson v. Oklahoma, 487 U.S. 815, 830 
(1988) (plurality opinion)); Penry v. Lynaugh, 492 
U.S. 302, 331, 335 (1989) (citing Coker v. Georgia, 
433 U.S. a t 593-97, and Trap v. Dulles, 356 U.S. 86, 
101 (1958) (plurality opinion)). This Court has 
consistently held tha t “[t]he clearest and most 
reliable objective evidence of contemporary values is 
the legislation enacted by the country's legislatures.” 
Penry, 492 U.S. a t 331. This Court has also made it 
clear that, in addition to legislative enactments, 
courts should look to the “[jfrequency of [the death 
penalty’s] use even where it rem ains on the books,” 
and the direction of any change on the issue. Roper, 
543 U.S. at 567; Atkins v. Virginia, 536 U.S. 304, 
313-16 (2002). Finally, this Court has held tha t it 
m ust exercise its “own judgment” w hether the death 
penalty is a disproportionate punishm ent for 
juveniles. Coker, 433 U.S. a t 597; Roper, 543 U.S at 
563.

In his brief, petitioner Patrick Kennedy 
persuasively demonstrates tha t contemporary data

4



regarding both the number of states th a t authorize 
the death penalty for child rape and the infrequency 
of its imposition reveal an overwhelming national 
consensus tha t the death penalty is a 
disproportionate punishm ent for this crime. Here, 
amici examine the historical record of the use of the 
death penalty for rape, which shows a longstanding 
societal consensus th a t the death penalty is a 
disproportionate penalty for the rape of victims of all 
ages—except when a black defendant raped a white 
woman or child in the South.

A. Historically, prosecutors and jurors have 
been unwilling to authorize the death penalty 
for rape, including child rape.

The historical record demonstrates that 
prosecutors and juries have been singularly 
unwilling to impose death on rapists, including child 
rapists.

In its 1977 decision in Coker, this Court 
reviewed the available evidence concerning the 
willingness of prosecutors to seek and juries to 
re tu rn  death sentences in rape cases. 433 U.S. at 
596-97. This Court found that “in the vast majority 
of cases, at least 9 out of 10, juries have not imposed 
the death sentence,” and concluded th a t this factor 
weighed heavily in favor of finding capital 
punishm ent a disproportionate penalty for rape. Id. 
Other analyses have confirmed this finding. See, 
e.g., Jam es W. M arquart, et al., THE ROPE, THE 
Ch a ir , and the N e ed le  64 (1994) (“Between 1923 
and 1971, prison records reveal, 2,308 persons were 
convicted of rape in the state of Texas. Among those 
offenders, only 5 percent (118) received the death 
penalty; the rest served a prison sentence.”); Marvin

5



E. Wolfgang & Marc Riedel, Race, Judicial 
Discretion, and the Death Penalty, 407 Annals of the 
Am. Acad, of Pol. and Soc. Sci. 119, 129 (1973) 
(among the 1,265 persons convicted of rape in 
Alabama, Arkansas, Florida, Georgia, Louisiana, 
South Carolina, and Tennessee between 1945 and 
1965, less than  9.5 percent received a death 
sentence).

Evidence from Mississippi after 1972 also 
suggests th a t jurors and prosecutors view death as a 
disproportionate penalty for child rape. At the time 
Coker was decided, Mississippi had a statu te  
authorizing capital punishm ent for the rape of a 
child.2 See Coker, 433 U.S. a t 595 (citing Miss. Code 
Ann. § 97-3-65 (Supp. 1976)). In 1989, the 
Mississippi Supreme Court ruled tha t a defendant 
convicted under this sta tu te  could be sentenced to 
death only if, in addition to committing rape, he or 
she killed, attem pted to kill, intended to kill, or 
contemplated using lethal force. Leatherwood v. 
State, 548 So.2d 389, 402-03 (Miss. 1989). In the 
intervening thirteen years when child rape by itself 
was punishable by death, Mississippi juries returned 
only two death sentences. See id.; Upshaw u. State, 
350 So.2d 1358 (Miss. 1977).

In short, both the contemporary and the 
historical evidence demonstrate that prosecutors and 
juries have been, and remain, singularly unwilling to 
authorize the execution of rapists, including child 
rapists.

2 Mississippi was one of only two states tha t authorized the 
death penalty for child rape. The other was Florida, and four 
years after Coker the Florida Supreme Court declared its state 
law unconstitutional. Buford v. State, 403 So.2d 943 (Fla. 
1981).

6



B. Historically, the death penalty for rape was 
reserved for blacks in the South, especially 
those convicted of raping white women and 
children.

There is, however, one profoundly unsettling 
exception to th is otherwise nearly universal refusal 
by prosecutors and juries to authorize death as a 
punishm ent for rape: the historical willingness of 
prosecutors and juries in the South to impose the 
death penalty on black men convicted of rape, 
especially those convicted of raping white women and 
children.

Historically, the use of death as a penalty for 
rape, far more than  any other crime, has been driven 
by obvious racial discrimination. Apparently, no 
white man has ever been executed in the U.S. for the 
non-homicide rape of a black woman or child. See 
Michael L. Radelet, Executions of White for Crimes 
Against Blacks: Exceptions to the Rule?, 30 Soc. Q. 
529, 537-41 (1989) (describing all white-on-black 
cases th a t have resulted in an execution); see also 
Wolfgang & Riedel, supra, at 125 (reporting on a 
study by the Florida ACLU of sentences imposed in 
Florida for rape between 1940 and 1964, which found 
th a t “none of the eight white offenders who raped 
black females received the death penalty”).

As petitioner noted in his petition for a writ of 
certiorari, “executing people for rape has its roots in 
the Southern antebellum practice of hanging slaves 
believed to have committed this crime.” Petition for 
a Writ of Certiorari at 21, Kennedy v. Louisiana, No. 
07-343 (U.S. Sept. 2007) (citing S tuart Banner, THE 
Death  P enalty : An  Am erican  H istory  139-42 
(2002)). The “rape of a white woman ... [was a]

7



cap ita l c rim e□ in  all s lavehold ing  s ta te s .” Jo h n  Hope 
F ra n k lin  & A lfred  A. M oss., J r ., FROM SLAVERY TO 
FREEDOM 115 (1988). However, “[njo w h ite  ra p is ts  
a re  know n to have  been  h anged  in  th e  an teb e llu m  
S o u th .” B anner, supra, a t 139; see also W illiam  J. 
Bow ers, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN 
AMERICA 1864-1982 139-40 (1984); B anner, supra , a t 
140-43 (under th e  s ta tu te s  of two s ta te s  c ap ita l 
p u n ish m en t w as reserved  solely for b lack  rap ists).

In much of the antebellum South, even 
“[attem pted  rape of a white woman was a capital 
crime for blacks,” although not for whites. Banner, 
supra, at 140-41. Louisiana’s legal provisions 
m andated capital punishm ent for both the rape and 
the attem pted rape of a white female by a slave. See 
La. Sess. Acts 1857 p. 230 (death penalty mandatory 
for rape or attem pted rape of any white female by a 
slave); Bill Quigley & Maha Zaki, The Significance of 
Race: Legislative Racial Discrimination in Louisiana, 
1803-1865, 24 S.U. L. Rev. 145, 147-53 (1997) 
(detailing Louisiana’s Black Code of 1806, which 
made the “rape or attem pted rape of any white 
woman or girl” by a slave punishable by death); see 
also Bowers, supra, a t 139-40 (describing nineteenth- 
century “rape sta tu tes th a t specified punishm ent 
according to the race of both offender and victim / ’ 
and which “underscored restrictions on the kinds of 
interracial contact th a t could be tolerated”); Ga. 
Penal Code of 1816, §§ 33-34.3

3 In 1816, the Georgia penal code expressly provided tha t rape 
committed by a white man would be punished by a term  of 
imprisonment of not more than  twenty years, and attempted 
rape by not more than  five years, but tha t slaves and “free 
persons of color” were to be put to death for the crimes of rape 
or attem pted rape of a free white female. Ga. Penal Code of

8



A slave woman could not be raped by her 
master, and her rape by other white men was merely 
a trespass against her m aster’s property. Susan 
Brownmiller, AGAINST OUR WILL: M e n , WOMEN, AND 
RAPE 153-70 (1975) (rape of black female slaves by 
their m asters was not recognized because the women 
were the m asters’ property); Franklin & Moss, supra, 
114 (“The rape of a female slave was regarded as a 
crime, but only because it involved trespassing.”); 
Stanley Elkins, SLAVERY 59 (1976) (describing slaves 
as absolute possessions of their masters). “No 
Louisiana law made rape of a black woman, slave or 
free, a crime. Rape was specifically limited to white 
women under the sta te’s law.” Judith  Kelleher 
Schafer, Slavery, Th e  Civil  War , and the  Su prem e  
Court  of Louisiana  85-87 (1994).

With the end of the Civil War and 
emancipation came an appalling increase in the 
lynching of blacks, “a form of unofficial capital 
punishm ent, adjudication of guilt and execution by 
groups lacking the formal authority for either.” 
Banner, supra, at 229; see also Franklin & Moss, 
supra, a t 312-13 (describing the rise of the Klu Klux 
Klan, which “stimulated the lawlessness and violence

1816, §§ 33-34; Ga. Acts of 1816 No. 508 § 1, Lamar, 
Compilation of the Laws of Georgia, 571, 804 (1821). At the end 
of the century, the Georgia Supreme Court explained th a t race 
might properly be considered “to rebut any presumption that 
might otherwise arise in favor of the accused tha t his intention 
was to obtain the consent of the female upon failure of which he 
would abandon his purpose to have sexual intercourse with 
her.” Dorsey v. State, 108 Ga. 477, 480, 34 S.E. 135, 136, 137 
(1899). Soon thereafter, the court ruled that no Dorsey charge 
was necessary when both persons were “of color, and there was 
no evidence as to difference in their social standing.” 
Washington v. State, 138 Ga. 370, 370, 75 S.E. 253, 253 (1912).

9



th a t characterized the postwar period in the United 
S tates”). Studies have estimated th a t between 1880 
and 1950 nearly 5,000 people were lynched, which 
means tha t “nearly six people were lynched every 
month for seventy years.” Jeffrey J. Pokorak, Rape 
as a Badge of Slavery: The Legal History of, and  
Remedies for, Prosecutorial Race-of-Victim Charging 
Disparities, 7 Nev. L.J. 1, 23-24 (2007). Three- 
quarters were black. Id. The racial biases found in 
slavery-era rape laws continued during this period as 
“[t]he most common public reason for lynching was 
th a t White women needed to be protected from Black 
rapists and attem pted rapists.” Id.

Even as the frequency of lynching decreased in 
the early 20th century, the scourge of racial bias 
continued unabated. Between 1930 and 1972, 455 
people were executed for rape; 405, or 89.1 percent, 
were black. U.S. Dep’t of Justice, Bureau of Prisons, 
National Prisoner Statistics, Bulletin No. 45, Capital 
Punishment 1930-1968 (1969). Moreover, 443 of the 
455 were executed in former Confederate states. 
M arquart, et al., supra, a t 39.4

In Alabama, Arkansas, Florida, Georgia, 
Louisiana, South Carolina, and Tennessee between 
1945 and 1965, “among the 823 blacks convicted of 
rape, 110, or 13 percent, were sentenced to death; 
among the 442 whites convicted of rape, only 9, or 2 
percent, were sentenced to death.” Wolfgang & 
Riedel, supra, a t 129; see also Deborah Denno, 
Getting to Death: Are Executions Constitutional?, 82 
Iowa L. Rev. 319, 365 n.278 (January 1997). “In

4 All of the executions took place in southern or border states or 
the District of Columbia. U.S. Dep’t of Justice, Bureau of 
Prisons, National Prisoner Statistics, Bulletin No. 45, Capital 
Punishment 1930-1968 (1969).

10



Louisiana, Mississippi, Oklahoma, Virginia, West 
Virginia, and the District of Columbia not a single 
white man was executed for rape over the forty-two- 
year period from 1930 to 1972. Together, these 
jurisdictions executed 66 blacks. Arkansas, 
Delaware, Florida, Kentucky, and Missouri each 
executed 1 white m an for rape since 1930, but 
together they have executed 71 blacks.” Wolfgang & 
Riedel, supra, a t 125-26.

Louisiana has executed only fourteen 
defendants for rape since 1941, and all fourteen were 
black. Burk Foster, Struck by Lightning: 
Louisiana’s Electrocutions for Rape in the Forties and 
Fifties, available at http://www.burkfoster.com/ 
StruckbyLightning.htm.. tbl. 1. All fourteen raped 
whites save one -  a serial rapist of black women. Id. 
Since 1941, Louisiana has executed only one 
defendant for raping a child under twelve; the 
defendant was black and the child was white. Id.

These stark figures lead inexorably to the 
conclusion tha t “racial differentials are most clear 
among death sentences for rape.” Wolfgang & 
Riedel, supra, at 125; Robert J. Hunter, et al., The 
Death Sentencing of Rapists in Pre-Furman Texas 
(1942-1971): The Racial Dimension, 20 Am, J. Crim. 
L. 313, 326 (1993) (“[Comparison of [term-sentenced 
and death-sentenced offenders] confirms tha t a 
substantial difference exists in the sentencing of 
rapists based on race.”).

In the 20th century, as before, capital 
punishment for rape was generally reserved for black 
defendants whose victims were white. A 
comprehensive study of the death penalty for rape in 
the South, including in Louisiana, from 1945 to 1965

11

http://www.burkfoster.com/


found tha t “black defendants whose victims were 
white were sentenced to death approximately 
eighteen times more frequently than defendants in 
any other racial combination of defendant and 
victim.” Wolfgang & Riedel, supra, at 126-33.

A study of all of the executions for rape carried 
out in Texas between 1924 and 1972 concluded:

The majority of [death-sentenced rapists] were 
uneducated, young African-American males 
without lengthy records of property or violent 
crime convictions. Most had no prior prison 
record. ...

The victims of 95 percent of the death- 
sentenced offenders were Anglo women, 
compared with 62 percent among the prison- 
sentenced cases. Even more dramatically, 
when a black offender was convicted of raping 
a white woman, he was virtually assured of a 
death sentence.

M arquart, et al., supra, a t 64-65 (emphasis added). 
When the authors compared Texas inmates 
sentenced to death for rape with those sentenced to 
prison between 1942 and 1971, they found that 
“[w]hen males from an African-American background 
raped an Anglo female, the case was approximately 
thirty-five times more likely to result in capital 
punishm ent than  a prison sentence.” Id. a t 56; see 
also Hunter, et al., supra, a t 337 (“[B]lacks who 
raped whites stood the greatest chance of being 
sentenced to death.... This variation under any 
circumstance is extreme, and disparity based on the 
race of the victim was explicit.”).

The Texas study also found that, in the sta te ’s 
rape cases th a t resulted in a death sentence between

12



1924 and 1972, 95.6% of the victims were white, 2.6% 
were black, and 1.8% Hispanic. M arquart, et ah, 
supra, a t 47-48, tbl. 3.3.5 The study determined tha t 
during the same time period “[i]n only one case did 
the rape of a black female result in a death sentence 
and actual execution. Roscoe Gibson..., a black male, 
was sentenced to death in June 1962 for raping a 
nine-year-old black girl in Houston. He was executed 
on October 6, 1962.” Id., at 58.

In their study, Wolfgang and Riedel 
considered “[o]ver two dozen possibly aggravating 
nonracial variables,” including the age of the 
victim(s), th a t might have accounted for the vastly 
divergent sentences received by black and white 
defendants. Id. at 132. The authors concluded tha t 
none of the variables accounted for the racial 
discrimination:

It cannot be said that blacks are more 
frequently sentenced to death because they 
have a longer prior criminal record than  
whites, because they used more force on the 
victim, because they entered premises without 
authorization, because they used a weapon or 
threatened the victim with a weapon, because 
they had an accomplice in the commission of 
the rape, because they impregnated the victim,

5 These figures are all the more startling because “the 
percentage of interracial rape is a rem arkably small fraction of 
all rapes in our society....” Katharine K. Baker, Once a Rapist? 
Motivational Evidence and Relevancy in Rape Law, 110 Harv. 
L. Rev. 563, 594-95 (1997). Nearly seventy percent of victims of 
child rape are abused by parental figures, family members, day­
care providers, or a friend or neighbor. See U.S. Departm ent of 
Health & Human Services, Child Maltreatment 2005, a t 59 tbl. 
3-17 (2007).

13



because they more frequently attacked persons 
under age sixteen, and so forth. All the 
nonracial factors in each of the states analyzed 
“wash out,” th a t is, they have no bearing on 
the imposition of the death penalty in 
disproportionate numbers upon blacks. The 
only variable of statistical significance that 
remains is race.

Id. a t 132-33 (emphasis added); see also H unter, et 
al., supra, a t 333 (“[T]he youth of the victim did not 
appear to be an extra-legal factor tha t influenced the 
sentencing decision.”).

Thus, the contemporary evidence and the 
historical evidence demonstrate tha t prosecutors and 
juries have been, and remain, singularly unwilling to 
authorize the execution of rapists, including child 
rapists. The only exception has arisen from the 
historical scourge of racial animus. This animus, 
particularly in light of the stark racial biases and 
tensions which, as described below, continue to affect 
Louisiana and other parts  of the nation, is one of 
many compelling reasons for this Court to refuse to 
countenance the use of the death penalty for rapists, 
including child rapists.

C. Stark racial biases and tensions continue to 
affect Louisiana and other parts of the nation.

Contemporary evidence of persistent racial 
biases and tensions in Louisiana and elsewhere in 
the nation, including in the criminal justice system, 
raises the unacceptable possibility tha t the historical 
pa ttern  of reserving the death penalty prim arily for 
black-on-white rape will return  if this Court declines 
to declare capital punishm ent unconstitutional for all 
rapists, including child rapists.

14



Race still m atters in American society. See 
Parents Involved in Community Schools v. Seattle
School District No. 1, __ U.S. __, 127 S.Ct. 2738,
2788, 2791 (2007) (Kennedy, J., concurring) (“The 
enduring hope is th a t race should not m atter; the 
reality is th a t too often it does”; noting th a t “our 
[nation’s] highest aspirations” with regard to race 
relations “are yet unfulfilled”); id. at 2800, 2833, 
2837 (Breyer, J., dissenting) (highlighting nation’s 
“serious problems of increasing de facto segregation, 
troubled inner city schooling, and poverty correlated 
with race”). Cf. id. a t 2738, 2768 (Thomas, J., 
concurring) (disparate treatm ent by government 
based on race “is precisely the sort of government 
action th a t pits the races against one another, 
exacerbates racial tension, and ‘provoke [s] 
resentm ent among those who believe that they have 
been wronged by the government’s use of race’”) 
(quoting Adarand Constructors Inc., v. Pena, 515 
U.S. 200, 241 (1995) (Thomas, J., concurring in part 
and concurring in the judgment)).

One arena th a t continues to experience racial 
bias and racial disproportionality is the criminal 
justice system, where racial discrimination persists 
in jury selection, the exercise of prosecutorial 
discretion, and sentencing.

The criminal justice system continues to 
discriminate against both black defendants convicted 
of rape and black rape victims. Black defendants are 
subjected to a disproportionate number of wrongful 
convictions for rape. See Brandon L. Garrett, 
Judging Innocence, 108 Colum. L. Rev. 55, 66-67 
(2008) (“Many more exonerees were minorities (71%) 
than  is typical even among average populations of 
rape and m urder convicts. Most strikingly, 73% of

15



innocent rape convicts were Black or Hispanic, while 
one study indicates th a t only approximately 37% of 
all rape convicts are minorities.” (footnotes omitted)).

Moreover, “black men are punished far more 
harshly than  their white counterparts who are 
convicted of rape.” Katharine K. Baker, Once a 
R apist? Motivational Evidence and Relevancy in 
Rape Law, 110 Harv. L. Rev. 563, 586, n.126 (1997) 
(citations omitted); see also id. a t 594 (“[BJlack men 
still receive more severe penalties for rape. One 
study in Dallas found tha t the median sentence for a 
black man who raped a white woman was nineteen 
years, whereas a white man who raped a black 
woman received a ten-year sentence. Black men who 
rape white women receive much greater penalties 
than  do other men who rape white women.” (citations 
omitted)).

“The legal system also clearly discriminates 
against black women.... Today, men of all races who 
are convicted of raping black women are sentenced 
less severely than  men convicted of raping white 
women.” Id. at 594-95. As one commentator 
concludes:

The disparate treatm ent of the black rapist 
and the legal indifference to black women 
victims helps solidify a belief th a t rape is only 
heinous if a black man rapes a white woman.

Id. a t 594-95.

Additionally, racial discrimination at the 
critical stage of jury selection6 rem ains a widespread

6 This Court has often recognized the harm  caused by 
discriminatory jury selection:

16



problem. Miller-El v. Dretke, 545 U.S. a t 268-69 
(2005) (Breyer, J., concurring). Discriminatory jury 
selection is the issue in Snyder v. Louisiana, No. 06- 
10119 (U.S. Dec. 4, 2007) (pending in this Court), a 
case tha t arose in Jefferson Parish and came before 
this Court last fall. An amicus brief filed by nine 
m inisters from the parish details the Jefferson 
Parish District Attorney’s Office’s “historical record 
of racial discrimination and animus in capital jury 
selection,” and states th a t “the frequent use of 
peremptory challenges to exclude African Americans 
from criminal jury service has greatly undermined 
[their] confidence in Jefferson Parish’s criminal 
justice system.” Brief of Nine Jefferson Parish 
M inisters as Amici Curiae Supporting Petitioner at 
2-3, Snyder v. Louisiana, No. 06-10119 (U.S. 2007). 
The amicus brief also decries the racial
insensitivities of prosecutors in Jefferson Parish, 
including a prosecutor who joked about wanting “to 
seat Nazis on capital juries” and prosecutors who 
wore ties “depicting a grim reaper and a hangman’s

Defendants are harmed, of course, when racial 
discrimination in jury  selection compromises the right 
of trial by im partial jury, ... but racial minorities are 
harmed more generally, for prosecutors drawing racial 
lines in picking juries establish “state-sponsored group 
stereotypes rooted in, and reflective of, historical 
prejudice.”

Miller-El v. Dretke, 545 U.S. 231, 237-38 (2005) (citations 
omitted). Recently, an issue of racism within a jury arose in 
M assachusetts, where a judge is considering what effect racist 
statem ents made by jurors during deliberations had on the 
verdict. Hilary Russ, McCowen Jurors Face Bias Complaints, 
Cape Cod Times, Jan . 10, 2008, available at
http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20080 
110/NEWS/801100336/-1/SPECIAL02.

17

http://www.capecodonline.com/apps/pbcs.dll/article


noose” during capital trials. Id. at 7-14.7 Race 
clearly rem ains a significant problem in Louisiana’s 
criminal justice system.

Louisiana is not alone in continuing to 
experience problems with racial bias in the 
adm inistration of criminal justice. Cf. Kimbrough v. 
U.S., 128 S.Ct. 558, 568 (2007) (noting Sentencing 
Commission report tha t crack/powder sentencing 
differential “‘fosters disrespect for and lack of 
confidence in the criminal justice system’ because of 
a ‘widely-held perception’ tha t it ‘promotes 
unw arranted disparity based on race’” (quoting U. S. 
Sentencing Commission, Report to Congress: Cocaine 
and Federal Sentencing Policy 103 (May 2002), 
available at
http://www.ussc.gov/r_congress/02crack/2002crackrpt 
.pdf)). Indeed, other states that impose the death 
penalty on child sex offenders experience similar 
difficulties.

For example, recent litigation in Texas has 
uncovered racist emails and jokes sent and received 
by the H arris County District Attorney Chuck 
Rosenthal on his government computer.8 Bud

7 In yet another parish in Louisiana, Terrebonne, a judge in 
2004 was suspended from office after he attended a Halloween 
party “dressed as a prisoner, wearing an orange prison 
jum psuit and handcuffs..., as well as a black afro wig” and 
black facial makeup. In re Ellender, 889 So.2d 225, 227 (La. 
2004).

8 Among the emails was “a photograph titled, ‘Fatal Overdose,’ 
of a black man lying on a sidewalk amid watermelon peels and 
Kentucky Fried Chicken containers.” Ralph Blumenthal, New 
Investigation in Texas E-mail Case, N.Y Times, January  9, 
2008, a t A12. Another included a “joke” th a t “Bill Clinton was 
like ‘having a black m an as President’ because ‘he smoked weed’

18

http://www.ussc.gov/r_congress/02crack/2002crackrpt


Kennedy, Ghosts From Yesterday’s Gaffes Spookier in 
Writing, Fort Worth Star-Telegram, Jan. 13, 2008, at 
B l. As a result, many local African American 
leaders demanded and obtained the District 
Attorney’s resignation. Ralph Blumenthal, 
Prosecutor, Under Fire, Steps Down in HoustonJ N.Y. 
Times, February 16, 2008; Leslie Casimir, et al., 
Black Leaders Urge Rosenthal to Step Down, 
Houston Chronicle, Jan. 12, 2008, a t A l. Local 
pastors and a Houston City Councilwoman have 
suggested th a t the emails and the District Attorney’s 
attitude reveal latent institutional racism in the 
DA’s office. Id. One pastor wondered “‘[h]ow many 
black kids have been locked up while they laugh at 
us?,”’ while another said th a t “‘[t]he overpopulation 
of our jails and prisons is in some cases due to the 
way [they] were prosecuted.... And [the DA] has a 
negative attitude toward minorities, which makes it 
easier to prosecute blacks and Latinos.’” Id.

Oklahoma’s criminal justice system also 
experiences racial problems. In 2005, the Oklahoma 
Criminal Justice Resource Center found that 
“[s]tatewide, a disproportionate num ber of black 
people are prosecuted,” with black people “20 percent 
less likely to receive a community sentence... [,] 40 
percent less likely to be diverted to drug court... [,] 
30 percent less likely to receive a warning during 
traffic stops.... [,] 60 percent more likely to be 
stopped for record checks,” and “four times more 
likely to be searched without consent.” Devona 
Walker, Oklahomans to Protest Sentences, The Daily 
Oklahoman, Sept. 20, 2007.

and ‘he gets a check from the government every month.’” Bud 
Kennedy, Ghosts From Yesterday’s Gaffes Spookier in Writing, 
Fort Worth Star-Telegram, Jan. 13, 2008, a t B l.

19



In short, racial biases and tensions continue to 
exist in this nation and its criminal justice system, 
including Louisiana and the other states th a t have 
authorized the death penalty for child rapists. This 
contemporary racial animus presents a plainly 
unacceptable risk th a t the historical pa ttern  of 
imposing the death penalty primarily for black-on- 
white rape will re tu rn  unless this Court holds that 
capital punishm ent is unconstitutional for all rapists, 
including child rapists.

CONCLUSION
For the reasons stated herein, the judgment 

below should be reversed.

Respectfully submitted,
John Holdridge 
(Counsel of Record) 
Christine DeMaso 
American Civil Liberties 

Union Foundation 
201 W. Main St., Suite 402 
Durham, N.C. 27701 
(919) 682-5659

Steven R. Shapiro 
Dennis D. Parker 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, N.Y. 10004 
(212) 549-2500

20



Dated: February 2008

Theodore M. Shaw 
Director- Counsel 

Jacqueline A. Berrien 
Christina Swarns 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th FI. 
New York, N.Y. 10013 
(212) 965-2200

Katie M. Schwartzmann 
ACLU Foundation of 

Louisiana 
P.O. Box 56157 
New Orleans, LA 70156 
(504) 522-0617

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