JONES V. OKLAHOMA BEFORE SCOTUS

Does Risk of Racial Bias Make a Death Sentence Unconstitutional?

By Gerald Kogan

The National Law Journal
September 20, 2018

The U.S. Supreme Court, this term, will conference an extraordinary case, Jones v. Oklahoma, that asks a “big question” on racial bias and death sentencing in Oklahoma. If the risk of racial bias in Oklahoma can be statistically proven, does that make a death sentence unconstitutional? The high court previously found that racial bias is a “constitutionally impermissible” factor in death sentencing.

Julius Jones was an honors student and a college athlete when he says he was wrongfully convicted and sentenced to death because of unreliable informant witnesses and inherent racial bias in the Oklahoma criminal justice system. Jones has two important sources of evidence that racism impacted his case. First, there are multiple, direct examples of racial bias in his case, including a juror who used the “n-word” about him. His attorneys also cite a 22-year, first-of-its kind statistical analysis of all capital sentences in Oklahoma. The results are conclusive.

The researchers who authored “Race and Death Sentencing for Oklahoma Homicides 1990-2012” studied sentencing for every homicide that occurred in Oklahoma from Jan. 1, 1990 through Dec. 31, 2012. Correcting for multiple factors, the study found that a black defendant like Jones, accused of killing a white male victim in Oklahoma, is nearly three times more likely to receive a death sentence than if his victim were a nonwhite male. (Study at 747.)

Looking at every homicide and resulting penalty across more than two decades in Oklahoma, the researchers found that only 1.88 percent of homicides involving nonwhite victims result in a capital sentence. When the victim is white, that number more than doubles to 3.92 of all homicides leading to a death penalty decision. It’s extremely troubling to think that a crime with a white victim is twice as likely to end in a death sentence than a crime with a black victim, and casts serious doubt on the fairness, reliability and objectivity of capital punishment, argue attorneys for Mr. Jones.

Apart from larger sentencing trends, Jones’ case contains multiple specific examples of racism. One of the most disturbing instances has never been considered by any court. A juror stated that another juror said, during court proceedings, that the trial was a waste of time and “they should just take the (n-word) out and shoot him behind the jail.’’ Another juror was concerned and told the trial judge. The Judge took no action.

Decision makers in Jones’ case also repeatedly used racially charged and coded language to present Jones as embodying “black dangerousness,” using dehumanizing words like “thug,” “prowl,” and “drugs,” despite the fact that there was no evidence of the case being drug-related. Jones and his family have always maintained his innocence and that he was at home eating spaghetti with the family when the tragic crime occurred. The state’s star witnesses against Jones were an informant and the co-defendant, who admitted they were involved in the crime. One wasn’t charged with the murder and the other got out after 15 years. Jones awaits his execution. The jury never heard the full extent of the deals that these witnesses and another informant received for testifying against Jones.

The only eyewitness to the crime saw a half-inch to an inch of hair sticking out of a hat on the shooter’s head, but photos prove Jones had short-cropped hair at the time of the crime. Jones’s appearance was documented in an official government photograph taken a week before the crime. However, one of the state’s star witnesses, who admitted to being in the shooter’s car at the time of the shooting, matched that description.

In his petition to the Supreme Court, attorneys for Jones argue that racial prejudice played an unconstitutional role in Jones’ case. They argue that there is reasonable doubt about Jones’ guilt, but that the inherent racial bias in Oklahoma’s capital sentencing scheme, as proven by the study, prevented that reasonable doubt from determining the outcome of the case.

Jones v. Oklahoma presents an important opportunity for the court to address racism in the criminal justice system and in application of Oklahoma’s death penalty head-on. The court should insist, at the very least, that Jones receives a hearing where all the evidence, including that of racial bias, can be heard. Fairness requires it.