Prosecutors take capital cases to federal court to avoid state jurisdictions with large minority populations

Federal prosecutors often seek the death penalty in federal court in cases that otherwise would be tried in state jurisdictions with substantial minority populations.   Because the federal districts are much larger – they are made up of many counties – they are predominately white.  Crimes that are usually prosecuted in state courts can be prosecuted in federal courts based on any “federal interest” such as a carjacking.  Federal prosecutors have repeatedly sought the death penalty in New Orleans, Richmond, St. Louis and Prince Georges County, Maryland, where African Americans make up the majority of the population in the county and the jury pools.  The decision to prosecute federally in these jurisdictions alters the racial makeup of the jury pools from predominantly black to predominantly white.  Those same federal prosecutors seldom seek the death penalty for crimes that occur in counties with largely white populations.

For example, the decision to federally prosecute three men for a murder that occurred during a bungled bank robbery in Orleans Parish in January of 2004, transformed the jury pool from one that was predominantly African American to a jury pool that was predominantly white.   Indeed, ten of the jurors that sentenced John Wayne Johnson to death in that case were not from Orleans Parish, but from the white-flight parishes that gave rise to the election of white supremacist David Duke to the state legislature, the re-appearance of the Ku Klux Klan, and the appointment of a Justice of the Peace who refused to certify interracial marriages.

These parishes included Jefferson Parish, which sent Duke to the legislature and where armed police prevented citizens fleeing New Orleans during Hurricane Katrina from crossing the bridge to safety, and St. Bernard Parish, which after Katrina refused to permit the construction of rental housing in order to keep black citizens from living there.

However, a similar case involving murder during in a bank robbery by three men in Napoleonville, Assumption Parish was tried in state court – where one defendant, James Dunn, was sentenced to death by an all-white jury selected on change of venue from Caddo Parish, another, Anthony Scott, was sentenced to death by a jury of 11 whites and one black selected from Calcasieu Parish on a change of venue.  The third defendant, Kendall Breaux, was allowed to plead guilty and received a sentence of life imprisonment.

This use of prosecutorial discretion, which requires approval by the Attorney General of the United States, is documented in The Racial Geography of the Federal Death Penalty by G. Ben Cohen and Robert Smith published in volume 85 of the Washington Law Review (2010).

As a result of these practices, more death sentences have been imposed in the U.S. District Courts for the Eastern District of Louisiana, the Eastern District of Virginia, the Eastern District of Missouri and the District of Maryland than in federal districts that include New York, Chicago, California, and Florida, where far more murders occur.

Although oversight by the Attorney General is supposed to ensure the evenhanded application of the federal death penalty, Attorneys General have failed miserably in that regard.  About half of all federal death row inmates are black, though black men constitute only 6% of the population.  (All of those under federal death sentence on September 2, 2010, were men: 27 were black, 8 Latino, 1 Native American and 24 white, according to the Death Penalty Information Center).

Just six of the 94 federal districts are responsible for one third of all federal death sentences.  Fewer than 20% of the districts have returned more than one death sentence.  Differences in offense rates do not explain the disparities.  The article describes the four federal districts with disproportionately high numbers of federal death sentences and the dramatic difference in jury participation by racial minorities that occurred when federal prosecutors selected juries from the respective federal district that surrounds New Orleans, Richmond, St. Louis and Prince Georges County, rather than allowing the cases to be tried in the state courts before jurors from the counties where the crimes occurred.

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