louisiana death-sentenced cases and their reversals, 1976-2015

Electronic copy available at: http://ssrn.com/

abstract=2770761

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LOUISIANA DEATH-SENTENCED CASES AND THEIR

REVERSALS, 1976-2015

FRANK R. BAUMGARTNER

AND TIM LYMAN

ABSTRACT

Since 1976, Louisiana’s experience with capital punishment has

been deeply dysfunctional, with a significantly higher case

reversal rate than the national average, and marked disparities in

sentencing, reversals, and executions depending on the race and

gender of the victim and accused. Our comprehensive analysis of

each of 241 death-sentence cases in the post-Gregg period suggests

that the “modern” death penalty has not resolved the issues of

arbitrariness and bias that concerned the US Supreme Court in

the 1972 Furman decision, which invalidated previous death

penalty statutes throughout the country. Among 155 resolved

death-sentence cases, there have been 127 reversals (of which nine

were exonerations) and 28 executions. Since 2000, Louisiana has

seen 50 reversals of previous death sentences, including seven

exonerations, and only two executions. Not only are these reversal

rates extremely high, but the racial discrepancies are shocking as

well. Death sentences are imposed in 0.52% of cases with black

male offenders and black male victims, but in 15.56% of cases

with black male offenders and white female victims – 30 times

more likely. No matter the race of the offender, killers of whites

are more than six times more likely to receive a death penalty than

killers of blacks, and 14 times more likely to be executed. The

racial disparities even extend into the appeals process, where

cases of killers of whites are clearly less likely to be reversed. No

white person has been executed in Louisiana for a crime against a

black victim since 1752.

Frank R. Baumgartner is the Richard J. Richardson Distinguished Professor of Po-

litical Science at UNC-Chapel Hill (Frankb@unc.edu); he is the co-author of The De-

cline of the Death Penalty and the Discovery of Innocence (Cambridge, 2008).

Tim Lyman is a documentation specialist who has developed procedures and help

systems for such major clients as Computer Associates, Chevron, Dow Jones, and

Quote.com.

Electronic copy available at: http://ssrn.com/

abstract=2770761

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2016] LOUISIANA DEATH-SENTENCED CASES 59

I. I

NTRODUCTION ..................................................................... 59

Table 1. Disposition of Death-Sentenced

Cases in Louisiana since 1976. .................... 61

Table 2. Comparison of Louisiana and US

Death-Sentenced Cases. ............................... 62

II. L

OUISIANA’S HOMICIDE AND DEATH SENTENCE RATES

AND

TRENDS ......................................................................... 63

Figure 1. Louisiana vs. United States

Homicide Rate. ............................................. 63

Figure 2. Louisiana Homicide vs. Death

Sentence Rate. .............................................. 64

Figure 3. Death Sentences and their

Outcomes. ..................................................... 65

A. Changing Rates of Death Sentences and Case

Resolutions .................................................................... 65

Figure 4. Since 2000 – Death Sentences and

their Outcomes. ............................................ 66

B. About Reversals ............................................................ 67

Table 3. Reasons for Death Sentence

Reversals. ..................................................... 68

C. About the Exonerated ................................................... 68

III.

RACE, SEX, AND REVERSAL RATES ...................................... 69

Table 4. Defendant and Victim Race

Combinations in Death-Sentenced Cases. ... 71

A. Comparing Reversal Rates ........................................... 72

B. Female Defendants ....................................................... 72

C. White v. Black Cases .................................................... 72

IV.

CONCLUSION ........................................................................ 73

I. I

NTRODUCTION

The majority opinion of the US Supreme Court in 1972, re-

viewing three death penalties given to poor Southern black males

for crimes that would not be death-eligible today, found the death

penalty unconstitutional. The Court deemed the punishment

“unusual” if it discriminates by “race, religion, wealth, social po-

sition, or class,” and that “the basic theme of equal protection is

implicit in ‘cruel and unusual punishments.’” It concluded that

the Eighth Amendment requires legislatures to write penal laws

that are “even-handed, nonselective, and non-arbitrary, and for

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60 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

judges to see to it that general laws are not applied sparsely, se-

lectively, and spottily to unpopular groups.”

To reduce arbitrariness, a number of states devised stat-

utes of mandatory death for certain crimes, but these laws were

ruled unconstitutional by the US Supreme Court in Woodson v.

North Carolina

and Roberts v. Louisiana in 1976. That same

year the court approved, in Gregg v. Georgia, Georgia’s sentenc-

ing procedures that channeled the jury’s attention onto a case’s

particularities, and this became known as a “guided discretion”

statute, and was quickly adopted by many other states.

Since the death penalty was reinstated with this decision in

1976, through August, 2015, Louisiana juries have delivered sen-

tences of death in 241 cases for various crimes, nearly all of them

homicides. In the years 1976-2011, the Federal Bureau of Inves-

tigation reported 20,942 Louisiana homicides that were classified

as criminal rather than justified. Thus the death penalty has

been imposed in about 1% of criminal homicide cases; and, as

discussed below, an execution has been carried out in about 10%

of these, or 0.1% of all criminal homicide cases.

This study closely examines the facts of these 241 death-

sentenced cases, what has happened to them over time, and

whether they show arbitrariness in their application. It finds

that most death sentences are later overturned, that there are

considerably more reversals than actual executions, that Louisi-

ana has seen approximately one exoneration for every three exe-

cutions carried out, and that in the current century there have

been more exonerations than executions. It also finds that death

sentences are highly dependent on the race and gender of the vic-

tim and of the offender, and that reversal rates are similarly de-

pendent. In all, this statistical review of the outcomes of every

modern death sentence imposed in the state shows such great

flaws in the application of the ultimate penalty that it cannot be

considered to be applied in any manner consistent with the ten-

ets of even-handedness called for when the Supreme Court struck

down capital punishment in 1972. No matter what the intent of

Louisiana’s legislature may have been, the actual application of

1. Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J. concurring).

2. See Frank R. Baumgartner, North Carolina’s Wasteful Experience with

the Death Penalty (Feb. 1, 2015), http://www.unc.edu/~fbaum/Innocence/Baumgartn

er_NC_Death_Reversals-1-Feb-2015.pdf (discussing North Carolina’s statutory his-

tory).

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2016] LOUISIANA DEATH-SENTENCED CASES 61

capital punishment – that is, executions – has been selective and

arbitrary. It has also been extremely rare, even within the

death-sentenced group. Table 1 summarizes the outcomes of all

modern death-sentence cases.

Table 1. Disposition of Death-Sentenced Cases in Louisiana

since 1976.

Disposition

of Defendants

Male

Female

White

Black

Other

Total

On Death Row

Died on Death Row

Subtotal:

Cases Unresolved

Off Death Row

118

Home (Exonerated)

Subtotal:

Sentence Reversed

127

Executed

(Sentence Applied)

Subtotal: Cases Resolved

155

Total:

All Death Sentences

239

148

241

Table 1 shows that 155 of the 241 death-sentenced cases

(64.3%) have been resolved (cases in which inmates have not left

death row or have died while on death row are unresolved since

neither the sentence nor its reversal has been applied). Of these

155 resolved cases, 28 were resolved with executions, and 127

were resolved with the death sentence being reversed. Thus, just

18% of resolved cases were executions, and 82% of resolved cases

were reversals. Nine of these reversed cases (7% of them) were

exonerations, meaning that exonerations have occurred approxi-

mately once for every three executions (9 exonerations, 28 execu-

tions). Table 2 compares these Louisiana results with those of

the USA as a whole.

3. Tracy L Snell, Capital Punishment, 2013 – Statistical Tables, US

DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS (DECEMBER), NCJ

248448, table 16 (2014) http://www.bjs.gov/content/pub/pdf/cp13st.pdf; Death Penal-

ty Info. Ctr. (2016), http://www.deathpenaltyinfo.org/murder-rates-nationally-and-

state#MRord. (US statistics are from Snell covering the period of 1973 through

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62 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

Table 2. Comparison of Louisiana and US Death-Sentenced

Cases.

Louisiana has executed 4.5% fewer inmates than the national

average (11.6% versus 16.1%), yet has 10% more reversals than

the national average (52.7% versus 42.7%), including twice the

national average of exonerations (3.7% versus 1.8%). Thus the

reversal rate, which is all the reversed cases as a percentage of

all the resolved cases, is higher than the national average by a

statistically significant amount (81.9% versus 72.7%; p=0.013).

The reversal rate is only an indicator of how well the law

has been applied, not a clue to any remedies. Following the eight

executions occurring in the summer of 1987, the reversal rate for

Louisiana stood at 72%, but as time to resolution has increased

since then, both in Louisiana and across the nation, the percent

of resolutions that are executions has not. To the contrary, the

reversal rate is 82% in all cases over nine years to resolution,

83% in cases over 10 years, and 92% in cases over 12 years. This

latter percentage, 92%, applies to the 54 inmates currently on

death row today more than 12 years. Also, five of the nine exon-

erations have occurred after 13 years on death row.

2013. The US exoneration number (155) is from Death Penalty Information Center

as of July 2015.)

Disposition of Cases

Cases

Percent

Cases

Percent

Total: All Death-Sentenced

Cases

241 100% 8466 100%

On Death Row

33.2%

2979

35.2%

Died on Death Row

2.5%

509

6.0%

Subtotal: Cases Unresolved

35.7%

3488

41.2%

Off Death Row

118

49.0%

3464

40.9%

Home (Exonerated)

3.7%

155

1.8%

Subtotal: Sentence Reversed

127

52.7%

3619

42.7%

Executed (Sentence Applied)

11.6%

1359

16.1%

Subtotal: Cases Resolved

155

64.3%

4978

58.8%

Reversal Rate

(Reversed/Resolved)

127 /

155

81.9%

3619 /

4978

72.7%

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2016] LOUISIANA DEATH-SENTENCED CASES 63

II. LOUISIANA’S HOMICIDE AND DEATH SENTENCE RATES AND

TRENDS

Louisiana has led all fifty states in homicide rate every

year since 1989.

Generally, its homicide rate is twice the nation-

al average.

Figure 1 shows a comparison of Louisiana’s homicide rate

to that of the nation. Both the Louisiana rate and the National

rate peak around 1980, and again in the early 1990s, peaks that

roughly align with known epidemics in powder and crack cocaine

use.

Figure 1. Louisiana vs. United States Homicide Rate.

At the same time as the Louisiana homicide rate has per-

sisted in recent years, staying above 10 per year per 100,000

population, Figure 2 below shows that the per-year rate of crimes

leading to a death sentence has declined in the new century.

(When looking at the right edge of the Figure 2 graph, note that

there is on average an 803-day, or 2.2 year, gap between crime

date and sentence date. Still, as of mid-2015, juries have chosen

death only four times for crimes post-2008.)

Prosecutors have seemed to seek more death sentences in

reaction to trends in the homicide rate – the peaks and valleys of

the crime-date rate generally trail the peaks and valleys of the

4. Death Penalty Info. Ctr. (2016), http://www.deathpenaltyinfo.org/

murder-rates-nationally-and-state#MRord.

0.0

5.0

10.0

15.0

20.0

25.0

1975 1980 1985 1990 1995 2000 2005 2010 2015

Murders per 100,000 Population

Louisiana vs. National Homicide Rate

Louisiana Homicide Rate National Homicide Rate

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64 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

homicide rate generally by several years. As an aside, the spike

in seeking death for crimes committed in 2006 could have to do

with the upheaval of Katrina refugees newly spread out across

the state; however, the raw number is only seven cases that year.

Figure 2. Louisiana Homicide vs. Death Sentence Rate.

The effect of slowing rates of death sentences and execu-

tions is that the population of death row has actually decreased

to 80 inmates today, down 18% from a peak of 97 inmates in

2000. Figure 3 illustrates that, despite the decline of these rates

recently, reversals of death judgments march upward at a re-

markably steady rate.

0.00

0.50

1.00

1.50

2.00

2.50

5.0

10.0

15.0

20.0

1975 1980 1985 1990 1995 2000 2005 2010 2015

Death-Sentenced Crime-date Rate

Homicide Rate

Louisiana Homicides per 100,000 Population

Louisiana Death Sentenced Crimes per 100 Homicides

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Figure 3. Death Sentences and their Outcomes.

A. Changing Rates of Death Sentences and Case Resolutions

The frequency of death sentences and the rapidity of case

resolutions has been changing over time, as can be seen in Figure

3. Let us note some things about the 1980s here.

 Executions came in waves at the beginning. When the first

execution occurred at the end of 1983, there had already

been 23 reversals, so the reversal rate went from 100% to

96%. Six more executions followed in the next 13 months.

After a 2.5 year hiatus, executions returned with 11 in a

12-month period in 1987-88, and the reversal rate hit an

all-time low of 70%. These 18 executions had taken 4

years on average to come about. The next nine execu-

tions, roughly one per year through the 1990s, took an av-

erage of 11 years from sentence to execution. Since rever-

sals are the one outcome to have a steady rate of increase,

the reversal rate was up to 76% at the end of the century.

100

125

150

175

200

225

250

1975 1980 1985 1990 1995 2000 2005 2010 2015

Case Count

Death Sentences, Reversals, Death Row Population, and Executions

Death Sentences

Handed Down

Reversals

Death Row

Population

Executions

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66 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

 Reversals occurred quickly when the death penalty system

was in startup mode. Of the 40 quickest reversals, occur-

ring within two years of sentencing, 32 happened before

1990. Judges, prosecutors, and defense attorneys were

inexperienced with the new constitutional mandates such

as proportionality review that became refined after the

1976 Gregg decision. As time passed and hard experience

showed what would pass review and what would not, re-

versals no longer occurred so quickly. Of the 31 reversals

that took more than nine years to come about, 24 have

been since 2000.

 Perhaps in response to the 11 executions in 12 months end-

ing in June 1988, only one death sentence was handed

down in Louisiana from that time through to the fall of

1990.

The conclusion is inescapable from these trends that the

rapid resolutions of the early years were not to set a pattern for

the future. Rapid executions, like rapid reversals, are a thing of

the past. After the first seven executions in 13 months, and then

the next 11 executions in 12 months, there have been no more

than one in any year since, and only one in the last 13 years. All

the while, the reversals, and then the exonerations, have mount-

ed monotonically.

Let’s take a closer look at the section of Figure 3 since

2000:

Figure 4. Since 2000 – Death Sentences and their Outcomes.

197

241

127

100

150

200

250

300

2000 2005 2010 2015

Case Count

Death Sentences and Their Outcomes Since 2000

Death Sentences

Handed Down

Reversals

Death Row

Population

Executions

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2016] LOUISIANA DEATH-SENTENCED CASES 67

Here in the new century, death sentence totals have in-

creased from 197 to 241, a gain of 44 cases, or 22%. Reversals

have increased from 77 to 127, a gain of 50 cases, or 65%. Rever-

sals have actually outpaced death sentences since the twenty-

first century began. Since 2010, there have been 10 death sen-

tences and 15 reversals. Meanwhile, executions have only in-

creased from 26 to 28, a gain of two cases, or 8%. The reversal

rate since 2000 has been 96.2 percent (50 reversals out of 52 reso-

lutions).

B. About Reversals

Reversals happen as part of the review established by law

to verify that the ultimate sanction be carried out only after law-

fulness has been assured. To be clear, a reversal does not neces-

sarily denote an error in the assignment of guilt; rather, it de-

notes an error in the lawfulness of the process. It may be

surprising to some that the typical outcome of a death sentence is

reversal, but perhaps more than anything a capital trial is a

highly emotional process; a terrible crime underlies every case.

Of course, to a prosecutor whose final argument has resulted in a

jury returning a sentence of death, any reversal seems a techni-

cality, or may be presented as such. However, by law in Louisi-

ana, there is no such thing – relief cannot be granted unless the

error abrogates the substantial rights of the defendant, and ap-

pellate courts do not vacate death sentences without such abro-

gation. Withheld evidence, improper jury instructions, or other

serious flaws in a trial must be demonstrated. While their cases

were reviewed, inmates whose death sentences were reversed

spent 695 years in solitary confinement.

Table 3 below shows approximate reasons for the 127 Loui-

siana death sentence reversals. They are approximate because

many categories overlap, and each reasoning is unique. Never-

theless, a general classification is presented.

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68 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

Table 3. Reasons for Death Sentence Reversals.

Category Number of Cases

1) Judicial error

38 (15 pre-trial, 8 guilt phase, 11 sentencing,

4 general)

2) Prosecutorial mis-

conduct

25 (2 guilt phase, 7 sentencing, 9 Brady, 4

Batson, 3 confession)

3) Constitutionally

excessive

20 (10 Atkins, 2 Kennedy, 5 Roper, 3 propor-

tionality)

4) Ineffective assis-

tance of counsel

20 (3 guilt phase, 14 sentencing, 3 conflict of

interest)

5) Settlement

14 (negotiated agreement to reduce sentence)

6) General review

10 (evidence/aggravation/record problems,

commutation, etc.)

C. About the Exonerated

In the United States, since 1976, there have been 1,412 ex-

ecutions through July 2015. During this period there have also

been 155 exonerations, findings of innocence in which the death-

sentenced inmate was sent home, after an average time of 11.3

years on death row. That is 1.2 years of an innocent person’s life

spent in the solitary confinement of death row for every execu-

tion, and one exoneration for every nine executions.

In Louisiana, since 1976, there have been 28 executions,

compared to nine exonerations averaging 12 years on death row,

so 3.9 years of an innocent person’s life spent in solitary confine-

ment for every execution. One inmate has been exonerated for

every three executed, three times the national rate. The total

number of years the exonerated have spent in solitary confine-

ment, 108, is unconscionable by any measure. These long stays

for innocent people in solitary confinement raise doubts as to

whether prosecutors in Louisiana feel any duty to look dispas-

sionately at questionable cases. A conviction integrity unit or

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2016] LOUISIANA DEATH-SENTENCED CASES 69

any similar review could screen cases with possible error to re-

duce the exoneration time.

All of the exonerations have come since 1995, with seven of

the nine occurring in the new century. Contrast that with just

two executions since 2000. Not only have reversals become more

common than new death sentences, as discussed above, but in

the new century exonerations have outpaced executions. A better

funded capital defense system in Louisiana allows more of these

errors to be discovered.

III.

RACE, SEX, AND REVERSAL RATES

There have been 270 homicides of white women committed

by black men in Louisiana since 1976, resulting in 42 death sen-

tences, a rate of 15.56%.

If all homicides had this death sen-

tence rate of 15.56%, there would be 2,336 death-sentenced cases

(0.1556 × 15,014 known-race homicides), instead of 241. That is

to say, a rate of 15.56% of homicides leading to a death sentence

case is extremely high. Nationally and in Louisiana, death sen-

tences average about one percent of homicides in the modern era.

Table 4 below shows these death-sentenced-case-per-

homicide rates, including case status breakdowns, for each of the

16 defendant/victim combinations of sex and race among blacks

and whites, plus a row below for cases involving Other races.

Various discrepancies are observable. For example, the column

% DS / Homs reports the total death-sentenced-case-per-

homicide percentage for each demographic. Black Male v. All is

1.42%, but within this group, BM v. BM is 0.52%, and BM v. WF,

as noted above, is 15.56%, about 30 times as much.

Of the 17 defendant/victim combinations of sex and race

here, only six of the combinations comprise 97 percent of the cas-

es, as can be seen in the % DScol column. These are: Black Male

v. BM, BF, WM, and WF (four groups, 61%), and White Male v.

5. Ctr. For Prosecutor Integrity, Conviction Integrity Units: Vanguard of

Criminal Justice Reform, W

HITE PAPER (2014), http://www.prosecutorintegrity.org/

wp-content/uploads/2014/12/Conviction-Integrity-Units.pdf.

6. Homicide statistics are from the FBI, Uniform Crime Reporting Sup-

plementary Homicide Master File Listing. The number of white female victims of

black males in death-sentenced cases is actually 46, but 8 of these cases had both

male and female victims. In these cases, we assign a value of 0.5 to each sex in order

to keep the case count fixed at 241 and thus make meaningful comparisons between

different groups.

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70 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

WM and WF (two groups, 36%). Three groups comprise one per-

cent each: WM v. BM, WM v. BF, and Other. Together, Black

Female v. All and White Female v. All comprise one percent of

death-sentenced cases, but each group individually rounds to ze-

ro percent.

Adding up all the black victim rows and white victim rows,

the last two rows of Table 4 present their death-sentenced-case-

per-homicide percentages, with the Black Victim rate at 0.63%

(66 / 10,530), and the White Victim rate at 3.96% (173 / 4,371),

over six times larger. Killers of white victims (24 / 4,371; 0.55%)

are 14 times more likely to be executed than killers of black vic-

tims (4 / 10,530; 0.04%). That is, a death sentence is six times

more likely if the victim is White, and an execution is more than

14 times more likely.

Not only are death sentences more likely if the victim is

white; white victim cases are less likely to be reversed (79.7%

versus 89.2% in black victim cases). So white victim cases are

both many times more likely to lead to a death sentence or an ex-

ecution than black victim cases, and at the same time less likely

to be reversed for serious error. Race-of-victim effects are power-

ful at each stage of the death penalty system, accumulating as we

move from the original sentence through to execution.

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Table 4. Defendant and Victim Race Combinations in Death-

Sentenced Cases.

Defendants v Victims Homicides %

Death

Sentences

DScol

% DS /

Homs

Executions

Xcol

% X /

Homs

Row+Died

Rcol

% R /

Homs

Off+Home

Ocol

% O /

Homs

% O / (X+O)

Reversal

Rate

Black Male v. ALL 10,247 69% 146 61% 1.42% 13 46% 0.13% 54 64% 0.53% 79 62% 0.77% 85.9%

v. BM 7,362 49% 38.5 16% 0.52% 2.5 9% 0.03% 15.5 18% 0.21% 20.5 16% 0.28% 89.1%

v. BF 1,631 11% 23.5 10% 1.44% 1.5 5% 0.09% 9.5 11% 0.58% 12.5 10% 0.77% 89.3%

v. WM 984 7% 42 18%

4.27% 4 14% 0.41% 15 18% 1.52% 23 18% 2.34% 85.2%

v. WF 270 2% 42 18% 15.56% 5 18% 1.85% 14 17% 5.19% 23 18% 8.52% 82.1%

Black Female v. ALL 1,287 9% 1 0% 0.08% 0% 0.00% 1 1% 0.08% 0% 0.00%

v. BM 1,033 7%

v. BF 206 1%

v. WM 40 0% 1 0% 2.50% 1 1% 2.50%

v. WF 8 0%

White Male v. ALL 2,818 19% 91 38% 3.23% 15 54% 0.53% 28 33% 0.99% 48 38% 1.70% 76.2%

v. BM 229 2% 2 1% 0.87% 2 2% 0.87%

v. BF 32 0% 2 1% 6.25% 2 2% 6.25%

v. WM 1,704 11% 52.5 22%

3.08% 5 18% 0.29% 15 18% 0.88% 32.5 26% 1.91% 86.7%

v. WF 853 6% 34.5 14% 4.04% 10 36% 1.17% 9 11% 1.06% 15.5 12% 1.82% 60.8%

White Female v. ALL 549 4% 1 0% 0.18% 0% 0.00% 1 1% 0.18% 0% 0.00%

v. BM 34 0%

v. BF 3 0%

v. WM 424 3% 1 0%

0.23% 1 1% 0.23%

v. WF 88 1%

BW TOTAL 14,901 100% 239 100% 1.58% 28 100% 0.19% 84 100% 0.56% 127 100% 0.85% 81.9%

Othe

113 2 1% 1.77% 2 2% 1.77%

Unknown 5,928

GRAND TOTAL 20,942 241 1.15% 28 0.13% 86 0.41% 127 0.61% 81.9%

All Black Victim 10530 71% 66 0.63% 4 0.04% 29 0.28% 33 0.31% 89.2%

All White Victim 4371 29% 173 3.96% 24 0.55% 55 1.26% 94 2.15% 79.7%

Notes: 32 cases have victims of both sexes. In these cases, a value of 0.5 has been given to each sex, in order to keep the case count fixed, and thus to keep comparisons of groups in rows and columns meaningful.

These cases are: 9 BM v. B2; 8 BM v. W2; and 15 WM v. W2. Shaded individual cells indicate statistically significant (p=<.05) variance from BW TOTAL row values. Some categories have expected frequencies less than 5,

too small for Chi-Square testing of statistical significance.

Table 4. Defendant and Victim Race Combinations in Death-Sentenced Cases.

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72 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

A. Comparing Reversal Rates

In Table 2, we saw the national reversal rate of death case

resolutions was 72.7 percent (that is, that 72.7 percent of re-

solved cases were reversed), and that Louisiana’s reversal rate is

significantly higher. In the right-most column of Table 5, the re-

versal rate of Louisiana’s White Male v. All cases is similar to the

national rate, slightly but not significantly higher at 76.2 per-

cent.

However, Black Male v. All cases have much higher rever-

sal rates, sending the overall state rate over 81% into the realm

of statistical significance, as compared to the national rate. The-

se Black Male v. All cases, representing 61% of death sentences,

are significantly more likely to be overturned, whether compared

to the Louisiana White Male v. All reversal rate (p=0.04), or to

the national reversal rate (p=0.007). The reversal rate for all

Black defendant cases is 85.9 percent, and Black v. Black cases

are still higher, at 89.2 percent.

On the other hand, White Male v. WF death sentences are

significantly (p=0.012) less likely to be reversed, with only a 60.8

percent reversal rate. Compare this with the reversal rate of

Black Male v. WF cases, which, at 82.1 percent, is nearly the

same as the overall rate of 81.9 percent.

Also, why would there be so many more reversals in Black

Male v. BF cases as opposed to White Male v. WF cases? It is

certainly not because there are more of these cases, though there

are more of these murders. Crimes with black victims are less

serious events, both less likely to lead to a death sentence and

more likely to see those death sentences overturned.

B. Female Defendants

It is remarkable how there have been only two death sen-

tences handed down to female defendants, out of 1,836 criminal

homicides. The overall DS / Homs rate is 0.11%.

C. White v. Black Cases

The reversal rate for white people executed for murdering

black people is not a discriminate statistic because no white per-

son convicted and sentenced to death for killing a black person

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has been executed since 1752

when, under French rule, a 24-

year old soldier was hanged for attempted murder after bayonet-

ing two black slave women (both of whom survived the attack).

Three white inmates are currently on death row for killing black

victims, and another is deceased. However, Louisiana has not

carried out an execution for such a crime in over 260 years.

Of course, there were many white versus black murders

throughout Louisiana’s history, but only some have been counted,

and most counted only recently. Major Lewis Merrill of the U.S.

Army stated the obvious in front of a congressional committee in

1875 when he asserted that “the killing of a black was not con-

sidered as a murder by the whites in. . .[Louisiana], and no local

grand jury would indict a white for such murder.”

Nevertheless

we can count 298 homicides in the modern era, plus a minimum

of 540 lynchings between 1877 and 1950 in the state,

plus 1,472

murders in reconstruction (1865-1878)

, reaching a total of 2,310

to start, before we confront the unknowable numbers from the

145 years of slavery through the clandestine activities of the Jim

Crow era. All this is to say that white-on-black crime has in fact

been quite common throughout the history of Louisiana, but no

white has faced the ultimate judicial consequence for such a

crime since 1752.

IV.

CONCLUSION

In the period since the reinstatement of the death penalty

in 1976, Louisiana has seen 241 death-sentenced cases, of which

28 executions have been carried out and 127 sentences have been

reversed. For every execution, in other words, there have been

almost five reversals. Since 2000, there have been 50 reversals

and two executions. The reasons for these reversals are spread

out across the entire death penalty process, with dozens of errors

each in pre-trial, guilt, and penalty phases, and by judge, prose-

cutor, and defense counsel. The fact that judge error leads all re-

7. M. WATT ESPY & JOHN ORTIZ SMYKLA, EXECUTIONS IN THE UNITED

STATES, 1608-2002: THE ESPY FILE (4

ICPSR ed. 2004).

8. Gilles Vandal, “Bloody Caddo”: White Violence Against Blacks in a

Louisiana Parish, 1865-1876, 25 Journal of Social History 373, 386 n.37 (1991).

9. Equal Justice Initiative,

Lynching in America: Confronting the Legacy

of Racial Terror

(2015), http://www.eji.org/files/EJI%20Lynching%20in%20America

%20SUMMARY.pdf.

10. Vandal, supra note 8 at 375, table 3.

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74 THE JOURNAL OF RACE, GENDER, AND POVERTY [Vol. VII

versal reasons calls into question whether the entire process is

too complex.

There are always voices that say the remedy for a bad re-

versal rate is to speed up review, but that misunderstands rever-

sal rate, ignores justice, and was tried, and failed, in the 1980s,

resulting in all parts of the system working together to create

more rigorous and careful rules of review. The Louisiana exon-

eration rate is more than double the national average, and inno-

cent inmates have spent 3.9 years in solitary confinement for

each execution, more than three times the national average. Six

of the nine exonerations have come after 10 years (five after 13

years) on death row. True innocence could exist in as many as

10% of these death cases, according to the latest research

Finally, there is consistent racial bias in every metric of

black and white death penalty rates, whether measured by

death-sentenced case per homicide, by case disposition, by rever-

sal rate, or by victim race. Perhaps the single most shocking el-

ement of Louisiana’s experience with the death penalty is that no

white individual has been executed for killing a black since 1752.

Race-of-victim effects point to a 14-to-1 difference in the likeli-

hood of execution if the victim is white rather than black. This

difference balloons to 43-to-1 comparing cases with white female

victims to black male victims. For white offenders, the odds of

execution for killing a black male are zero.

We close with words of Justice Anthony Kennedy from the

majority decision of the recent Obergefell v. Hodges case in the

US Supreme Court:

“The nature of injustice is that we may not always

see it in our own times. The generations that wrote

and ratified the Bill of Rights and the Fourteenth

Amendment did not presume to know the extent of

11. Samuel R. Gross, Barbara O’Brien, Chen Hu, & Edward H. Kennedy,

Rate of false conviction of criminal defendants who are sentenced to death.

ROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES, http://www.pnas

.org/content/111/20/7230.abstract. (The Gross study applies survival analysis statis-

tical techniques developed in medical research to the national exoneration rate of

1.6%, and concludes that, primarily due to the nature of reversals, wherein cases are

no longer heavily scrutinized after sentence reduction, the actual innocence rate is

conservatively estimated to be 4.1%. A simple extrapolation of this methodology to

Louisiana, with its elevated reversal and exoneration rates and starting points,

yields a similarly conservative estimate of actual innocence at around 10%.)

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freedom in all of its dimensions, and so they en-

trusted to future generations a charter protecting

the right of all persons to enjoy liberty as we learn

its meaning. When new insight reveals discord be-

tween the Constitution’s central protections and a

received legal stricture, a claim to liberty must be

addressed.”

12. Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (2015).