Can Mississippi, with its ugly history of racial oppression, administer the death penalty fairly?
In June, Curtis Flowers' attorneys filed an appeal with the U.S. Supreme Court. Their brief focuses on the critical question of whether the prosecutor in the case, Doug Evans, unconstitutionally struck black prospective jurors because of their race.
Flowers' lawyers point to the two instances in the 21-year-long legal drama when judges have already found that Evans excluded jurors because of race — the first during jury selection in Flowers' second trial, the other when the Mississippi Supreme Court overturned Flowers' third conviction. They remind the court that the jury that sentenced Flowers to death in his sixth trial, which was selected from a pool of people that was 42 percent black, the one had only one African-American on it.
But they also point to something bigger: the fact that over his long history as district attorney, Evans and his assistant prosecutors have struck black prospective jurors at a much higher rate than their white counterparts, even more so in capital cases. Based on the race data APM Reports collected over Evans' 26-year tenure, 75 percent of defendants tried have been black, but 68 percent of jurors who have sat in judgment were white. Evans may say he has race-neutral reasons for striking black prospective jurors, but Flowers' attorneys contend that the court should consider Evans' track record when judging whether his reasons for striking jurors were credible. In other words, they argue, history matters.
History can matter a great deal in Mississippi. The troubled legacy of white men standing in judgment of black men, especially in death penalty cases, extends much further back than 26 years and much wider than one court district. It's long been dangerous to be a black man accused of a crime in the American South.
A long legacy of lynching
"Eight negros lynched since last issue," wrote Ida B. Wells in a scorching editorial in her Memphis newspaper, The Free Speech, in May 1892:
"One at Little Rock, Ark., last Saturday morning where the citizens broke ... into the penitentiary and got their man; three near Anniston, Ala., one near New Orleans; and three at Clarksville, Ga., the last three for killing a white man, and five on the same old racket — the new alarm about raping white women. The same programme of hanging, then shooting bullets into the lifeless bodies was carried out to the letter."
Lynchings in America peaked that year, according to Tuskegee University. But they continued well into the next century. Between 1882 and 1968, Mississippi had more lynchings — 581 — than any other state in the country. Of those killed, 539 were African-American.
Lynchings of African-Americans by white Southerners were almost always framed as a deserved punishment for a perceived act of wrong-doing. Those who perpetrated them clung to a veneer of righteousness, though it was well-known that their actions were more a form of terrorism and social control than justice.
"The Afro-American is not a bestial race," Wells wrote. "Nobody in this section of the country believes the old threadbare lie that Negro men rape white women." In fact, that lie would provide cover for decades more violence to come.
In 1905, Charlie Bennett, a black Winona man, was caught fleeing through the window of a white woman's bedroom after her father had walked in on their sexual encounter. The young woman told her father, and later a jury, that "she had crawled into bed one night to find a 'kinky-haired' Negro already lying there," wrote historian David Oshinsky in Worse Than Slavery. "Sex between a black man and a white woman was the ultimate taboo. It could not be described as voluntary in a Southern courtroom; it had to be rape."
After his arrest, Bennett narrowly escaped being lynched. A local judge smuggled him out of town just before a torch-wielding mob descended on the Winona jail where he was being held. Bennett had the luck of making it through a trial before his sentence was meted out. (He ended up serving 30 years at Parchman and then being pardoned — the encounter with the woman had been consensual, it turned out.)
Not all inmates at the Winona jail escaped the mob violence. In 1937, two black men accused of murdering a white shopkeeper were taken from the jail, chained to trees, shot and set on fire. It was one of the first lynchings to be photographed and shown in the national press.
In 1955, 14-year-old Emmett Till walked into a white-owned grocery store in the Mississippi Delta. Inside, Till apparently flirted with the shopkeeper, a married 21-year-old woman named Carolyn Bryant. Three days later, Till's naked body washed up on the shore of the Tallahatchie River. He'd been brutally beaten and shot in the head by Bryant's husband and his half-brother.
Till had entered a white-owned store. He'd looked at a white woman the wrong way. He'd said the wrong thing.
Forty years later, there would be echoes of this in the Curtis Flowers investigation. In the three days Flowers worked at Tardy Furniture, he made the women in the store uncomfortable.
Benny Rigby said that Flowers stared too much at his wife, Carmen. According to Frank Ballard, Bertha Tardy's son-in-law, he didn't stare enough. Flowers wouldn't make eye contact with him when they talked, Ballard said.
On the morning of the murders, Bertha's husband, Tom Tardy, told investigators that Flowers had "a doesn't matter attitude" and had damaged a stack of golf cart batteries. Investigators would fixate on the idea that when Flowers dropped the batteries, he — rather menacingly — laughed. By 11:35 a.m. on the day of the murders, Flowers' purported rudeness had made him a prime suspect.
A legal alternative
The death penalty has existed in Mississippi since the early 1800s. But for a long time, the right to a trial and a sentencing extended only to white people. Before emancipation, slaves were punished by and according to the whims of the whites who controlled them. After the Civil War, change was slow to come.
Between 1882 and 1930, Mississippi had more lynchings and fewer legal executions than any other state in the region, according to Oshinsky. Historians have argued that the threat of federal anti-lynching legislation during that period and after — none of which made it through Congress — deterred the most highly visible forms of the practice and pushed capital punishment into courtrooms. However, Oshinsky notes that in Mississippi, "both lynchings and legal executions rose dramatically in times of racial stress."
After a series of botched hangings in the 1930s, there were calls for an end to the gallows in Mississippi. Electrocution was proposed as a more humane alternative. But Sunflower County, where Parchman prison is located, didn't want the reputation of being home to a "death house," Oshinsky wrote. Local politicians warned that there would be rioting if an execution chamber was built there.
The solution was a traveling electric chair, which decentralized executions and brought them to the audiences most invested in them — the citizens of the county where the crime had occurred, people who knew the victims and the condemned. For fifteen years, from 1940 to 1955, the chair was driven across the state by a former carnival hypnotist. During that period, according to Oshinsky, 73 people were executed — 56 black men, one black woman, and 16 white men.
The traveling electric chair was decommissioned in 1955 after the installation of a gas chamber at Parchman. In the 17-year span beginning in 1955, the state gassed 31 men, 77 percent of them black, according to the Mississippi Department of Corrections, before the U.S. Supreme Court ordered a nationwide halt of the death penalty in 1972.
Arbitrary and discriminatory
The Supreme Court ruling that ended the death penalty came in the cases of William Furman, Luscious Jackson and Elmer Branch. They were all appealing their death sentences, and the court examined their cases together. All were black men. All their victims were white. All had committed crimes for which other men had received lesser sentences. Jackson and Branch were both convicted of rape — they hadn't even killed their victims.
The court issued a brief opinion on the cases, collectively referred to as Furman v. Georgia, ruling simply that "the imposition and carrying out of the death penalty in these cases constitute[s] cruel and unusual punishment." More than 200 pages of concurring and dissenting opinions followed. The five justices in the majority individually explained their reasons for putting a stop to the death practice.
Capital punishment, they said, was not being applied fairly, but in a discriminatory and arbitrary way. The death penalty, as it stood, violated the Eighth Amendment, which banned excessive punishment, and the Fourteenth, which guaranteed due process and equal protection under the law.
"A look at the bare statistics regarding executions is enough to betray much of the discrimination," Justice Thurgood Marshall wrote. "A total of 3,859 persons have been executed since 1930... 2,066 were Negro." He noted that 455 people had been executed for rape, 89 percent of them black. Justice William Douglas quoted a former attorney general. "It is the poor, the sick, the ignorant, the powerless and the hated who are executed," he wrote.
But the court's ruling offered a path forward for states that wanted to pursue capital punishment. If they could come up with a way to make the death penalty less arbitrary, the court might permit the practice in the future. States got to work devising new frameworks for sentencing.
Just a year after Furman, Troy Gregg, a white man, was accused of robbing and killing two people in Georgia. Gregg was given a trial in two parts — a guilt phase and a separate sentencing phase, where the prosecution put on evidence of the particularly depraved nature of Gregg's crimes, and the defense was allowed to present testimony as to why Gregg nonetheless deserved mercy. After this process, a jury had decided that death was an appropriate punishment.
When the Supreme Court considered Gregg's case in 1976, the justices found that because jurors had been presented with these "aggravating" and "mitigating" factors their final decision had been soundly reasoned. They hadn't been "influenced by passion, prejudice, or any other arbitrary factor."
The Gregg ruling ushered in the modern era of capital prosecutions: a bifurcated trial with a separate sentencing phase. Prosecutors must meet a burden of proof that the defendant is indeed the worst of the worst. A defendant can present evidence that might have cut against him during the guilt phase of the trial — that he had a troubled youth, for instance, or was recruited into gang life. He can put people on the stand who can help to humanize him — his mother, his music teacher or a mental health expert, for instance.
Years later, three of the justices in the Gregg majority — John Paul Stevens, Harry Blackmun and Lewis Powell — all turned strongly away from capital punishment.
'This was a legal lynching'
The machinery of death came back to life in states across the country in late 1976. In Mississippi, a man named Jimmy Gray was sentenced to die just five months after the Gregg ruling. It would take him seven years to reach the gas chamber, but he would be the first person to be executed by Mississippi under the new and improved death penalty statute.
Around this time, Stephen Bright was a young lawyer in Georgia representing a man in a death penalty appeal. When Bright read the transcript from his client's trial, he noticed how unprepared the defendant's attorneys were. He saw how prosecutors led black prospective jurors into saying they couldn't be fair, in order to strike them from service.
"It was an all-white jury, there were terrible lawyers, the judge was so pro-prosecution. I said to myself, 'This was a legal lynching. This was nothing but a totally perfunctory process where the outcome was a foreordained conclusion,'" said Bright, who went on to become director of the Southern Center for Human Rights and a law professor at Yale, Georgetown and Georgia State.
"It kept all the essential elements of mob justice, but with this facade of actual justice," Bright said.
In Bright's analysis, not a whole lot had changed since the days of Furman. And it still hasn't. Juries can still be racially skewed and subject to whim, and defense counsel are overburdened and underfunded. The big pro-defendant innovation in Gregg was the opportunity to present mitigating evidence, but it takes time and money to drum that evidence up — to bring in relatives who can say the defendant was abused as a child or to hire experts to testify about a defendant's health or intellect.
Also, there are still no statewide standards about what should or shouldn't constitute a death penalty case. Like so many things, it's largely up to the discretion of the local district attorney whether a murder should be charged capitally.
"The most important decisions that may determine whether the accused is sentenced to die are those made by the prosecutor," Bright wrote in a seminal 1995 paper on race and the death penalty in the Santa Clara Law Review. "For the white men who usually make these decisions in judicial districts all over the country, the crime may seem more heinous or horrible if the victim is a prominent white citizen. As one scholar has observed: 'The life-and-death decision is made on trivial grounds and tends to reflect the community's prejudices.'"
In a famous 1983 study, University of Iowa law professor David Baldus and two colleagues analyzed the death sentences imposed in Georgia in the years following the reinstatement of the death penalty. What he expected to find, if the new bifurcated system was working, was sentences proportionate to the severity of the crime committed. A more aggravated murder should draw a death sentence, while a less heinous one should draw a life sentence.
What Baldus found instead was that the key determinant of whether a defendant was sentenced to death was not the cruelty of the crime, but the race of the victim. If the victim was white, the defendant was four times more likely to be condemned to die.
"Our data strongly suggests that Georgia is operating a dual system, based upon the race of the victim," Baldus wrote. What his study showed is that, even with the new system and stricter guidance, the discretion of the prosecutor and the jurors still tilted the outcomes.
In 1987, Warren McCleskey, a black man convicted of killing a white police officer in Atlanta, appealed his death sentence in the U.S. Supreme Court. He claimed that Georgia's capital sentencing process was inherently unconstitutional. As proof, he cited Baldus' study.
The court ruled against McCleskey in an opinion that today remains the most recent and significant holding on the question of race in the death penalty.
"To prevail," the court found, "petitioner must prove that the decisionmakers in his case acted with discriminatory purpose."
It was not enough to show that the system overall had racially discriminatory results. The condemned man had to prove that the prosecutor or the jurors in his case purposefully meant to discriminate. As intent is hard to prove, McCleskey set an almost insurmountably high bar.
In the ruling, Justice Lewis Powell wrote, "At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system."
The death penalty in modern Mississippi
Doug Evans ran for office four years after McCleskey, as the war on drugs was in full force and public support for the death penalty surged. His tough-on-crime campaign in 1991 was fitting for the times.
Death sentences imposed in Mississippi crested in the early 1990s. The year of the Tardy Furniture murders — 1996 — was a high watermark for capital punishment nationwide when 315 people were sentenced to death.
Since he took office, Evans and his assistant district attorneys have prosecuted 26 capital trials. Only six of those trials had white defendants. In five cases, the defendant was Curtis Flowers.
An APM Reports analysis of the subset of capital trials for which race information was available found that prosecutors in Evans' office struck black prospective jurors at eight times the rate they struck white prospective ones. This is an even more pronounced disparity than the one APM Reports found in the office's record in criminal prosecutions overall.
It's worth noting that these strikes are being exercised on a pool of jurors that already skews white and male. In capital trials, prospective jurors must be "death penalty qualified" at the start of jury selection, meaning they're asked if they have any general beliefs about the death penalty that would "substantially impair" their ability to impose it as a punishment. Studies have shown that women and minorities tend to disproportionately answer this question with a "yes," eliminating themselves from the pool.
It's likely no coincidence that in the only one of Flowers' six trials in which he wasn't facing the death penalty, he ended up with more black jurors (five) than before or since. That jury deadlocked in a vote that split along racial lines.
Black jurors who make it through death penalty qualification and jury selection and actually sit on a capital jury can make a significant difference in whether a defendant lives or dies.
In a 2001 analysis, the Capital Jury Project, a collection of university-based law researchers, found that in black-on-white killings, the presence of a single black male juror reduces the likelihood that the death penalty will be imposed by roughly 30 percent. Conversely, having five white men on a jury drives up the likelihood of a death sentence by 40 percent.
Researchers with the Capital Jury Project have interviewed more than 1,200 jurors from 356 different death penalty cases across 15 states to figure out what factors they consider and how they arrive at a decision about life or death.
"An inescapable conclusion is that as much as we try ... there is just no way to make the decision whether another human being should live or die into a rational, fact-based decision," said Scott Sundby, an interviewer with the project and law professor at University of Miami.
"It is, at bottom, an emotional decision, a moral decision, a religious decision, a world-view decision," he said.
In practice, Sundby has found, jurors have a very hard time making these life or death calculations, even with the court's guidance. They have difficulty understanding what aggravators and mitigators are, they aren't sure how to measure them against one another and they may give certain factors more weight based on their own life experiences. They can also be powerfully swayed by the relatability of the attorneys, the defendant and his family, and the victim.
"Jurors tend to be much more inclined to impose a death sentence when they can identify with the victim. If it's a white victim pulling money out of an ATM, they are going to be much more likely to say 'God, that could've been me.'"
"The average black capital juror has something of a different worldview than the average white juror," Sundby said. "Black jurors, as a whole, tend to be more skeptical of police testimony, tend to be more skeptical of government experts, tend to find mitigating evidence more mitigating."
Why is this? Their history, Sundby said.
The slow death of the death penalty
Since the time of Flowers' first death sentence in 1997, capital punishment has been in steady decline. In 2017, only 39 new death sentences were imposed nationwide. Just one of those was in Mississippi. There are several reasons for this: changes in attitudes, and changes in the law.
Many states gave juries the option of imposing sentences of life without parole, which jurors have chosen over death sentences. The high price tag of death penalty cases also became apparent. In Mississippi, one of the poorest states in the country, the costs borne by rural counties could be devastating. In 2012, then-University of Mississippi law professor Valena Beety contacted the clerks of every Mississippi county with an inmate on death row. She found that an average death penalty trial cost the county at least $50,000 — money that was almost never in the budget — and could run much higher.
Finally, more widespread use of DNA testing also resulted in several high-profile exonerations of people condemned to death row. The idea that innocent people were being executed has been too much for many to bear.
In 2008, just before he left the bench, Mississippi Supreme Court Justice Oliver Diaz wrote a strongly worded dissent in the case of Anthony Doss, a man who'd been prosecuted by Doug Evans and sentenced to death in 1993.
"Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen," wrote Diaz, "these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths."
Nobody has been executed in Mississippi since 2012, in part because the state is being sued over its current method of lethal injection.
Still, a woman and 42 men sit in solitary cells on Mississippi's death row, awaiting execution. Curtis Flowers remains one of them.