A Criminal Enterprise

The Death Penalty in New Orleans: The Latest Sentence Further Conceals the Truth About the Government’s Charging Practices

Posted in News by Bidish J. Sarma on August 31, 2009

On August 29th – the notorious anniversary of Hurricane Katrina’s landfall in southeast Louisiana – an Orleans Parish jury handed down a death sentence for the first time in over twelve years.  The sparse use of the death penalty in Orleans Parish invites different reactions.  Some believe that juries in the jurisdiction are “soft on crime,” and claim that their unwillingness to impose the death penalty only emboldens criminals in one of the most dangerous cities in the country.  Others believe that these juries are sensitive to the complex realities that undergird the city’s deplorable crime rate.  While many speculate about what Michael Anderson’s death sentence means for the DA’s charging practices, in this post I want to explore a hidden issue that influences capital cases out of New Orleans.

People often say that, on a national level, Hurricane Katrina exposed racism that quietly resided under the surface of the popular national consciousness.  People from all over the country expressed shock and horror when they heard, for example, about the Danzinger Bridge Incident or the anti-African American violence in Algiers Point.  Unconscious/aversive/implicit racism still flourishes in our country, and it is an issue we must address.  But, as Katrina made obvious, racism in the South is not always so thinly-veiled.   One alarmingly common local response to the fact that Orleans juries rarely hand down death sentences is essentially that “they” “protect their own” without regard to public safety.  This crude view makes almost no effort to cover its racial undertones.  (When called out, a proponent of the view may claim that “they” simply means “the residents of Orleans Parish.”  But, we all know whom “they” really refers to: the African Americans living in the city.  Even if it is true that juries with greater African American representation give out fewer death sentences, the view implies that African Americans should not serve on capital juries, and should not make decisions about the crime that affects their lives and their community.).  Nevertheless, one may still expect locally-elected public officials and federal lawyers to decry racism as obvious as the kind entailed by the crude view.  Instead, those responsible for prosecuting crimes in the area actually embrace it.  In the process, they undermine the Fifth, Sixth, Eighth, and Fourteenth Amendment Amendments to the US Constitution.

Before this Saturday, an Orleans Parish jury had not sentenced a defendant to death in 12 years.  But, that does not mean that criminals convicted for crimes committed in Orleans have not received death sentences in that time.  Indeed, several have.  In federal court.

When cases are prosecuted in federal court – here, the Eastern District of Louisiana (which encompasses Orleans Parish) – the jury is culled from the district as a whole, not just the county or parish where the crime occurred.  Not surprisingly, this larger pool of potential jurors in the Eastern District has a far lower percentage of African Americans.  The decision to prosecute an Orleans case federally results in the transformation of the jury demographics from a parish that is predominantly (61%) African-American to a venire that is predominantly (65%) white.

My colleague and mentor, Ben Cohen, currently represents a capital defendant in federal court.  The case arises out of a homicide committed during an armed robbery.  His research has revealed some eye-opening information:

  • every single defendant sentenced to death in the Eastern District of Louisiana has been black;
  • every single defendant authorized as death-eligible in the Eastern District has been black;
  • every single defendant sentenced to death in federal court for a murder occurring during the course of a bank robbery has been black;
  • in every single one of these instances in which a black defendant has been sentenced to death for a killing during the course of a bank robbery, the victim has been white.

Ben’s client is the latest of 42 African-American and Hispanic federal capital defendants alleged to have committed a crime within the jurisdictional confines of Orleans Parish that has been prosecuted federally and have been certified as eligible for the death penalty.  His research initially indicates that no person has been charged with a federal capital crime for an offense that occurred within the Eastern District, but outside of Orleans Parish.  Not surprisingly, the predominantly white parishes outside of Orleans have had little trouble sentencing defendants to the death penalty, particularly African American defendants. (For example, we can look to neighboring Jefferson Parish.  Out of twenty-nine capital cases that have been indicted since 1998 and subsequently proceeded to a capital trial in Orleans, only one has resulted in a death sentence (less than 4%).  In Jefferson during the same period, fourteen cases have gone to trial and ten have resulted in death sentences (71%)).

Of course, the government may have legitimate reasons to prosecute some of these cases in the federal jurisdiction rather than in the parish.  But, the statistics raise serious questions about what really motivates prosecutors to take cases from Orleans to the federal level in the majority of these cases.

Lawyers need to think about what this practice means under the Constitution.  The Fifth Amendment protects due process, the Fourteenth Amendment ensures equal protection of the laws, and the Eighth Amendment prohibits death sentences based on the influence of arbitrary factors such as race.  The unprincipled (or, worse yet, the race-based) decision to prosecute in federal court arguably encroaches on all these constitutional rights.  Most interestingly, there is the Sixth Amendment.  Our laws are rooted in the belief that a defendant should be tried by representatives of the community in which the crime was committed – this is called the vicinage presumption.  Prosecutors in Orleans frequently trample that presumption and take the case to federal court, in the hopes of securing a less representative and more pro-death jury.

Since Katrina struck, the fear that crime will spread out from New Orleans to neighboring communities has only intensified.  This fear – rational or not – is unfairly exploited when jurors from those outside communities determine the punishment that an individual who committed a crime in Orleans should receive.

The sentence in Michael Anderson’s case certainly makes me wonder how the DA will allocate his limited resources across the tragic number of homicide cases in his office.  But, the sentence, along with the conventional wisdom about juries in Orleans Parish, conceals something much more invidious below the surface.  Cases that belong in the hands of Orleans Parish community members have been taken from them.  Prosecutors have stripped a community that must honestly and openly struggle with the ramifications of rampant crime of its right to decide its own cases.  The ideas that galvanize self-righteous prosecutors to dilute the local voices that would speak on capital cases must be confronted, and must be rejected.  Four years have passed since Katrina, but all that haunted southeast Louisiana before the storm continues to wreak havoc unabated.

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