Death Penalty for Hate Crimes??

Yesterday the Senate passed four amendments to the Matthew Shepard Hate Crimes Prevention Act, including a provision that would allow the death penalty to apply to hate crimes.  This amendment, added by Senator Jeff Sessions, R, AL (a vocal opponent of the Act itself), adds nothing to the justice the bill seeks for victims of gender and sexuality-based hate crimes. 

The goal of the Matthew Shepard Act (which is itself attached to the 2010 Defense Department authorization bill) is to allow the investigation and prosecution of some hate crimes based on the victim’s actual or perceived sexual orientation, gender, gender identification, or disability. The person for whom it is named was a 21-year old college student from Colorado who was tortured and murdered in Laramie, Wyoming in 1998 by two other young men. As an openly gay young man, Matthew Shepard was the victim of much discrimination and violence. During the trial for his murder, witnesses stated that he was victimized that night by Aaron McKinney and Russell Henderson because of his sexuality.

After McKinney’s conviction the jury began deliberating the death penalty, but Matthew’s parents were able to broker a last-minute deal so that McKinney was sentenced to life in prison instead. Matthew Shepard’s dad was quoted as saying to him:

“I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process. To show mercy to someone who refused to show any mercy. Mr. McKinney, I am going to grant you life, as hard as it is for me to do so, because of Matthew.”

This profoundly difficult and heart-wrenching decision to show mercy after such a terrible crime may mean nothing to Senator Sessions, but his amendment can still be removed when a House-Senate conference committee meets to reconcile the differences between the two bills, or when the entire House and Senate vote on the bill after that.

Obama, the Federal Death Penalty, and Race

The death penalty is a difficult issue for just about any politician.  Most prefer to avoid it as much as possible.  But the time may soon come when President Obama will have to take a stand on this question.  In a recent article on, Josh Gerstein outlines the challenges that President Obama may face in the near future regarding the federal death penalty, as several cases inch a little closer to crossing his desk. Obama has previously stated that he supports the death penalty in cases that involve “heinous” crimes, but has not made it clear exactly where he draws the lines between which crimes are heinous and which are not. Attorney General Eric Holder has likewise given few clues about his specific stance on this issue. He has stated that he personally opposes capital punishment, but he has also authorized federal prosecutors to seek the death penalty in four cases since he has taken office. 

Compared to some states, the federal death penalty has been used relatively sparingly, and executions at the federal level have been halted for several years due to challenges to the constitutionality of lethal injection. In April, 2008 the Court ruled that lethal injection is constitutional, clearing the way for some pending executions to go forward. There are several cases making their way through the federal appeals process now, including the cases of 6 African Americans from the Washington area all of whom are nearing the end of their appeals. 

That all six of the inmates involved in these cases are African-American is sadly symbolic of the racial disparities inherent in the federal death penalty.  Currently there are 57 prisoners on federal death row, 35 of which are people of color, and 28 of which are African-American. According to a recent survey of the Federal Death Penalty  System, during the years 1995-2000 U.S. Attorneys recommended that the death penalty be sought in 44.3% of cases involving a black defendant, but only 26.2% of cases involving a white defendant. Also, in a 2007 report titled The Persistant Problem of Racial Disparities in the Federal Death Penalty the ACLU found that the death penalty is reduced to life sentences during plea bargaining almost twice as often for white defendants as for black defendants.

These statistics not only reflect serious racial bias on their own, but they are also disproportionate to the rest of the nation: in 2003 the United States Government, and the U.S. military, had higher percentages of non-white prisoners on their death rows (77% and 86% respectively) than any single state except Colorado.   At the beginning of this year, those figures still stood at 60% and 78%, way out of proportion with the population as a whole.