Supreme Court Orders Reconsideration of Racial Bias in Georgia Death Penalty CaseJanuary 11, 2018

On Monday, the Supreme Court followed its recent precedent requiring courts to address racial bias in death penalty cases when it sent a Georgia capital case back to the lower court for further consideration of Keith Tharpe's claim that a juror's racism invalidates his death sentence.

Keith Tharpe, who is black, was convicted of killing his estranged wife's sister, Jacqueline Freeman, who was also black, and the jury voted to sentence him to death. Years later, a white juror, Barney Gattie, signed an affidavit saying:

In my experience I have observed that there are two types of black people: 1. Black folks and 2. Niggers . . . . Because I knew the victim and her husband's family and knew them all to be good black folks, I felt Tharpe, who wasn't in the 'good' black folks category in my book, should get the electric chair for what he did.

Mr. Gattie went on to state that, "[a]fter studying the Bible, I have wondered if black people even have souls."

Mr. Tharpe argued that this juror's racial bias invalidated his death sentence, but the Georgia state courts and lower federal courts all refused to address the claim on the merits because it was not raised earlier and the facts in the case did not establish that Mr. Gattie's presence on the jury prejudiced Mr. Tharpe.

Last fall, Mr. Tharpe asked the federal courts to reconsider that ruling based on two recent decisions from the Supreme Court.

In February, the Court granted relief to Duane Buck, who was sentenced to death in Texas after evidence from an expert was presented that he was more likely to commit criminal acts of violence in the future because he is black. The Court held that "it is inappropriate to allow race to be considered as a factor in our criminal justice system." That Mr. Buck "may have been sentenced to death in part because of his race," the Court continued, "is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are."

And in its March 6 decision in Pena-Rodriguez v. Colorado, the Court held that racial bias is "a familiar and recurring evil" so harmful to the administration of justice that it cannot be ignored."[B]latant racial prejudice is antithetical to the functioning of the jury system and must be confronted," Justice Anthony Kennedy wrote for the Court. Accordingly, "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," the Constitution requires the court "to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee."

Despite these decisions, the United States Court of Appeal for the Eleventh Circuit refused to review Mr. Tharpe's racial bias claim, and the State of Georgia scheduled his execution for September 26. Mr. Tharpe appealed to the Supreme Court, which stayed the execution in order to consider the racial bias claim.

In its per curiam decision on Monday, the Supreme Court rejected the lower court finding that Mr. Gattie's vote to impose the death penalty was not based on Mr. Tharpe's race. "Our review of the record compels a different conclusion," it wrote, holding that, in light of the unusual facts of this case, Mr. Tharpe's racial bias claim must be reconsidered.

Consistent with BuckPena-Rodriguez, and its 2016 decision in Foster v. Chatman, another Georgia capital case in which the Court granted relief after finding that prosecutors illegally excluded black people from the jury on the basis of race, this week's decision demonstrates the Court's ongoing concern about racial bias in the criminal justice system and the especially urgent need to confront racial bias in the administration of the death penalty.