Courts have repeatedly upheld convictions and allowed executions to go forward despite evidence of illegal racial discrimination.

In 2016, the State of Georgia executed Kenneth Fults, a Black man who challenged the legality of his conviction and sentence after it was established that one of the jurors held deeply racist views.

The juror told an investigator after the trial, “I don’t know if he ever killed anybody, but that n—– got just what should have happened.”^{1 Fults v. GDCP Warden, 764 F.3d 1311, 1315 (11th Cir. 2014).} And “[o]nce he pled guilty, I knew I would vote for the death penalty because that’s what that n—– deserved.”^{2 Fults, 764 F.3d at 1315.}

Federal courts refused to address the merits of Mr. Fults’s claim because his lawyer did not properly object in state court. The claim was deemed “procedurally defaulted” and dismissed.^{3 Fults, 764 F.3d at 1316-21.}

Keith Tharpe, a Black man with no previous criminal record, was charged with shooting and killing a woman while he was under the influence of drugs. Investigators discovered after his trial that a juror’s racial bigotry informed his decision to sentence Mr. Tharpe to death.

“[T]here are two types of black people: 1. Black folks and 2. N—–s,” the juror said. Because Mr. Tharpe was the latter type, he “should get the electric chair.” The juror said in a sworn statement that “after studying the Bible, I have wondered if black people even have souls.”^{4 Tharpe v. Warden, 898 F.3d 1342, 1348 n.3 (11th Cir. 2018) (Wilson, J., specially concurring).}

Mr. Tharpe appealed his conviction and death sentence, arguing that racial bias had tainted the jury’s deliberations in his case. Every court, including the Supreme Court, refused to consider the merits of the claim because they said his lawyers discovered the juror’s racism too late.^{5 See Tharpe, 898 F.3d at 1347; see also Tharpe v. Ford, 139 S. Ct. 911 (2019).} Mr. Tharpe died in prison in 2020 before the state could carry out his execution.

Napoleon Beazley, Brian Baldwin, Robert Tarver, and Harvey Green are among scores of other condemned prisoners who were executed despite dramatic evidence that racial bigotry contributed to their convictions and death sentences. In each case, federal courts refused to address evidence of racial bias because of procedural defaults.

In November 2020, Orlando Hall was executed by the U.S. government despite significant evidence that illegal racial discrimination during jury selection resulted in an all-white jury.^{6 Debra Cassens Weiss, “Federal Inmate Tried by All-White Jury Is Executed after Supreme Court Lifts Execution Stay,” ABA Journal, Nov. 20, 2020 (noting Supreme Court’s refusal to consider whether racial discrimination in jury selection led to all-white jury).} In December 2020, the federal government executed Brandon Bernard even though one of the prosecutors from his trial acknowledged that the nearly all-white jury may have been influenced by racial bias.^{7 Associated Press, “Brendan Bernard Is 9th Federal Inmate Executed by US in 2020,” Al.com, Dec. 10, 2020 (noting that prosecutor at Bernard’s trial called for review of role racial bias played in his conviction and sentence); Angela Moore, “Op-Ed: I Helped Put Brandon Bernard on Federal Death Row. I Now Think He Should Live,” IndyStar, Nov. 18, 2020 (“Brandon Bernard was seen less for his youth, more for his race.”).}