Volume 56

Valuing Procedure Over Substance: Racial Bias in the Capital Jury Room

by Grace Manning

Keith Tharpe is an African American inmate on Georgia’s death row. Nearly thirty years ago, a jury found him guilty of capital murder and sentenced him to death.  Over seven years later, Tharpe’s attorneys discovered that one of his jurors, who was white, harbored deeply racist views in connection with his vote for Tharpe’s death. Since then, Tharpe has attempted to challenge the “familiar and recurring evil”  that tainted his death sentence: racial bias. However, his claim has never been evaluated due to procedural bars. Earlier this year, Tharpe made a final request for the Supreme Court to reverse the procedural rulings of the lower courts, but the Court denied certiorari.

Death is a punishment that differs from all others not in degree, but in kind. Accordingly, the Constitution requires that capital juries consider defendants as “individual human beings” rather than “members of a faceless, undifferentiated mass.”  Tharpe’s juror contravened this principle. In a signed affidavit, he stated that “there are two types of black people,” using a racial slur to categorize one, and calling the other “good black folks.” In his view, Tharpe did not belong in the “good black folks” category and “should get the electric chair for what he did.” In contrast to the Constitution’s mandate that capital juries contemplate the “compassionate or mitigating factors stemming from the diverse frailties of humankind,” Tharpe’s juror explicitly wondered whether black people have souls

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