The death penalty has a racist past. In SC, evidence shows that hasn't changed.

Thirty-five men sit on South Carolina’s death row while the state enters civil litigation to implement the firing squad and default to using the electric chair – methods hardly used in modern history – against a backdrop of growing opposition to capital punishment nationwide.

The death penalty has a well-known racist past. It has historically been used disproportionately against Black men, and most often when victims are white. The number of people sentenced to death who are later exonerated continues to grow, sometimes even after the irreversible punishment has been carried out.

Further, the death penalty in South Carolina and other states is often pursued by a small number of prosecutors and driven by false narratives or a desire to appear tough on crime.

Not to mention that 50 years ago, the U.S. Supreme Court decided in a landmark decision, Furman v. Georgia, that the use of the death penalty was unconstitutional, a short-lived ruling that evolved into decades of controversy and injustice.

The Greenville News reviewed the cases of the 35 men on death row to find the following:

• More than half of the men on death row are people of color.

• Nearly half the 35 cases on death row were tried in four counties. Ten counties in the state have never tried a death penalty case in the modern era.

• Fourteen of the 35 people on death row were prosecuted by four solicitors.

• Most of the men on death row were sentenced during the early and mid-2000’s. Only three men have been added to death row since 2010.

• Fourteen of the 35 men on death row have been there for 20 years or more. One has been on death row for 38 years, roughly half his 77 years.

In 1972, the high court was posed with deciding whether carrying out the death penalty was cruel and unusual punishment under the Eighth and Fourteenth Amendments.

With a one-page joint opinion, the court held the answer was yes. Hundreds of pages of individual concurring opinions and dissents discussed complicated views on the historically controversial method of punishment.

The justices concurred the death penalty was arbitrarily and discriminatorily used, and often racially biased toward Black defendants. They could find no rational explanation for why some defendants were sentenced to death and others were not. Justices Thurgood Marshall and William Brennan wrote the method was unconstitutional in any circumstance.

The death penalty itself was dead.

But in response, states restructured sentencing schemes and capital punishment statutes to attempt to implement the death penalty in less capricious ways. It was revisited only four years later in Gregg v. Georgia.

Georgia’s new statute specifically implemented a two-fold process where the criminal trial and sentencing are conducted separately, and the state Supreme Court’s new procedures compared death sentences to similar cases to determine whether capital punishment was disproportionate. With a 7-2 majority, the Supreme Court ruled the death penalty did not violate the Constitution when applied in a judicious manner.

What criminal justice experts call the “modern era” of the death penalty began and the method was reinstated.

South Carolina adopted a similar two-fold process and updated guidance for the death penalty in 1977. The state Supreme Court upheld the statute and further noted the mandatory appeals process served as “an additional check against the random imposition of the death penalty.”

Since 1985, South Carolina has executed 43 people and none in the past decade as the South Carolina Department of Corrections struggles to obtain drugs for lethal injection. Even so, the state is pushing to keep the death penalty alive in its legal fight to implement the firing squad and default to the electric chair for the remaining men on death row.

Death Row’s Persistent Roots in Racial Bias

During slavery, capital punishment was used to control Black populations and during the post-Civil war era was frequently carried out in public in Southern states, often indistinguishable from lynchings, according to a report from the Death Penalty Information Center.

The last public execution occurred in August 1936 in Kentucky when Rainey Bethea, a 26-year-old Black man, was hanged after being accused of raping and murdering an elderly white woman. Roughly 20,000 people were in attendance.

According to the Equal Justice Initiative, a nonprofit that provides legal representation to people who have been unfairly sentenced or illegally convicted, between 1910 and 1950, 75% of people executed in the South were Black despite African Americans making up only 22% of the population over that time.

The NAACP’s Legal Defense Fund (LDF) began a campaign in the 1940s and 50s to challenge the death penalty as racially-biased and unconstitutional. This effort ultimately led to U.S. Supreme Court’s Furman decision in 1972.

Though racial discrimination was noted as a concern in justice opinions for Furman, the primary issue was arbitrary application and unguided discretion in the judicial procedure of capital punishment.

At least 35 states reworked capital punishment statutes to appeal to the court. Changes to appear less arbitrary introduced in state legislatures included separate trials for convictions and sentencing, requiring aggravated circumstances to seek the death penalty and permission for defense teams to present mitigating factors in court, such as a history of mental health problems or abusive family backgrounds.

In the Gregg v. Georgia decision in 1976, the Supreme Court ruled the concerns outlined in Furman could be addressed with these new statutes and sentencing schemes.

“Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction,” wrote Justice Potter Stewart in his opinion in Gregg.

"The real desire after Furman was to create somehow a death sentencing scheme that could be fair. I think that’s a legal fiction,” said Alexis Hoag-Fordjour, professor and co-director of the Center for Criminal Justice at Brooklyn Law School. “When you have human beings involved in making decisions, you’re always going to have some sort of bias or prejudice seep in.”

A decade after Gregg, the Supreme Court was presented with a direct challenge that the death penalty was racially biased in McCleskey v. Kemp.

Defense for Warren McCleskey, a Black man convicted of the murder of a white policer officer, argued that an empirical study of over 2,000 murder cases in Georgia found race was a significant indicator for who received the death penalty. The author, David Baldus from the University of Iowa, found a murder defendant was 4.3 times greater to be sentenced to death if the victim was white.

The high court rejected the claim 5 to 4. The justices acknowledged the evidence, but it wasn’t enough for McCleskey’s case specifically. Justice Lewis Powell wrote in the decision “if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”

The McCleskey decision effectively ended future opportunities to challenge sentencing with patterns of racial bias, even as those patterns continue today.

According to state sentencing data provided by Justice 360, a nonprofit organization in SC working to reform policies and practices in capital cases, Black defendants make up 46.9% of those sentenced to death in the modern era, while white defendants make up 51.9%. However, only 16.9% of defendants have been sentenced to death for killing a Black victim, while 80.9% of defendants have been sentenced for killing a white victim.

“That's a pattern that persisted since the beginning of the modern era, and that has also persisted in the pre-modern era, throughout the history of the death penalty in South Carolina from colonial times forward,” said John Blume, former director of South Carolina Death Penalty Resource Center and professor at Cornell University. “It was almost all exclusively reserved for people that kill white people, and primarily Black people that kill white people.”

Almost half of the men currently sitting on death row in South Carolina are Black, though Black people make up only 27% of the state’s population.

“That translates to an undervaluation of victims who are not white,” Hoag-Fordjour said. “Lawmakers wanted to hang on to the death penalty for political reasons and convince themselves that they can carry it out in a constitutional way and you just can’t.”

Even in the recent state Supreme Court decision denying relief to death row inmate Richard Moore, a Black man from Spartanburg convicted for the murder of James Mahoney, the dissent of Justice Kaye G. Hearn noted the role race played in his case.

“From 1985 to 2001, there were 21 cases in Spartanburg County where a death notice was filed, and in all but one the victim was white. As Moore highlights in his petition for habeas relief, during the first eight years of that timeframe, the solicitor's office sought the death penalty in 43% of death eligible cases involving a white victim but not once in a case with a black victim,” Hearn wrote.

“I fully acknowledge the Supreme Court has held that general patterns of racial discrimination are not enough to prove an arbitrary sentence,” she wrote, acknowledging the McCleskey decision. “But it is disingenuous to discount the factor race plays.”

When The Greenville News inquired about racial disparities and arbitrary use of the death penalty to Gov. Henry McMaster's office, spokesperson Brian Symmes simply pointed to previous statements from the Governor including tweets regarding the legislation to implement a firing squad.

"This weekend, I signed legislation into law that will allow the state to carry out a death sentence," Gov. McMaster tweeted last May when the legislation passed. "The families and loved ones of victims are owed closure and justice by law. Now, we can provide it."

Wrong place, wrong time?

Majority of the men currently on South Carolina’s death row were sentenced during the early and mid-2000s and many trials were concentrated in a handful of counties and judicial circuits. Experts and researchers say this has much more to do with political influence than judicial guidance.

Of the 35 cases on death row, five were tried in Lexington County, four in Spartanburg County, three in Greenville County and three in Horry County. Three other counties have at least two defendants on death row currently and the others are a county’s sole case.

Like the concentration of sentences in a few counties, a handful of solicitors have prosecuted a concentrated number of cases for the men on death row. Four were prosecuted by former 13th Circuit Solicitor Bob Ariail, four by former 15th Circuit Solicitor and current state senator Greg Hembree, three by former 7th Circuit Solicitor Trey Gowdy and three by former 1st Circuit Solicitor Walter Bailey.

Solicitor Barry Barnette, the current 7th Circuit solicitor representing Spartanburg and Cherokee County, has prosecuted one of the 35 men on death row and recently issued a notice to seek the death penalty for Duane Leslie Heard for the murder of Deputy Austin Aldridge. Solicitor Barnette declined to be interviewed for this story.

Research by Blume and Justice 360 director Lindsey Vann on South Carolina’s death penalty published in the Duke Journal of Constitutional Law & Public Policy in 2016 found that four solicitors are responsible for a third of the state’s death sentences since 1976. Of the 233 death sentences reviewed in that research, a quarter were from Lexington or Horry counties.

Vann is also one of the attorneys representing Richard Moore and three other men on death row in the civil litigation challenging the state’s execution methods.

“There's some counties in the state where nobody's been sentenced to death,” Blume said. “There's this kind of geographical arbitrariness. It's where you commit the crime, in a place, at a time when you have a prosecutor who's seeking death.”

Blume said the number of death sentences and executions in the 90s is in response to national politics – the myth of the super predator, harsh sentencing laws and a higher amount of public support.

“That has a half-life, which kind of goes down into the 2000s,” he said. “Then it starts to go the other way, which I think is part of a variety of different things.”

Blume said one factor leading to fewer death sentences is the opportunity to sentence people to life without the possibility of parole, which wasn’t available in South Carolina until 1996. Another is the number of exonerations and more people eventually found innocent during the modern era which is now shaping public opinion on capital punishment.

According to DPIC, 186 death-row inmates have been legally exonerated since 1973. The data represents one exoneration for every 8.3 people who have been sentenced to death in the modern era. In South Carolina, 60% of death sentences have been reversed since 1976, according to data from Justice 360.

“It should disturb us that 60% of the time that we convict someone and say we're going to execute them that it later gets overturned,” Madalyn Wasilczuk, assistant professor at the University of South Carolina School of Law said. “I mean, that's worse than a coin flip.”

Fourteen of the 35 men on South Carolina’s death row have been there for 20 or more years, some in various stages of the appeals process and some deemed incompetent by the courts for a new trial or to be executed at all.

"There are very few people coming on the row," said Blume. "Some of these people are going to win in their appeal, or some of them aren't going to be executed because they're incompetent. Probably some of them will be executed. But eventually I think the number's going to become so small, at some point somebody's gonna go, ‘Why are we doing this?’”

Only three of the men currently on South Carolina's death row were sentenced after 2010.

In 2015, the U.S. Supreme Court questioned the constitutionality of the death penalty again in Glossip v. Gross, a case brought by Oklahoma death row inmates that said the state’s one-drug lethal injection protocol caused severe pain and violated the Eighth Amendment. While the high court rejected the claim 5-4, a dissent written by Justice Stephen Breyer argued the death penalty needed to be evaluated on current social and legal standards.

Breyer noted research has continuously proven factors other than the crime, such as race and gender, location, and political pressure have had influence on the use of capital punishment and that arbitrariness “results in the punishment being unconstitutionally cruel.”

“In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed, the Court in effect delegated significant responsibility to the states to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed,” Breyer wrote.

Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel. 

This article originally appeared on Greenville News: In SC, the death penalty's history of racism continues, evidence shows