Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

Jones County Courthouse
Wikimedia Commons

Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

In 1991, a jury in Jones County, Georgia, sentenced Keith Tharpe, a Black man, to death for the murder of his sister-in-law. Seven years later, Tharpe’s defense counsel met with a white juror from Tharpe’s trial as part of their routine investigation of the case. The juror explained to the lawyers why he voted for Tharpe’s death, and then reviewed, edited, and signed a sworn statement, which set out his views of race and Tharpe:

I have observed there are two types of Black people: 1. Black folks and 2. Niggers. For example, some of them who hang around our little store act up and carry on. I tell them, “nigger, you better straighten up or get out of here fast.”

I felt Tharpe who wasn’t in the “good” black folks category in my book, should get the electric chair for what he did. . . .

After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they are wrong. For example, look at O.J. Simpson. That white woman wouldn’t have been killed if she hadn’t married that black man.

The defense lawyers filed the juror’s signed statement in court the next day.

Only a unanimous jury can convict and impose a death sentence in Georgia, and the law has long recognized that misconduct by a single juror requires reversal. The juror’s stunning admission of racially biased views, including his view of the defendant, should have led to a hearing and a new trial. Instead, Tharpe faces possible execution next Tuesday, September 26, 2017.

In what threatens to be a grave miscarriage of justice, no court has ever considered the testimony about this misconduct. The federal courts must act now under the law’s constitutional promise of equality and fairness and reopen his case so that his claim of racial bias can finally be heard.

What should have happened in 1998 is that the then-elected prosecutor for the Ocmulgee District, Joseph Briley, and the Georgia Attorney General should have responded to the juror’s affidavit by announcing they would not tolerate racial bias in capital sentencing and agreeing that Tharpe should get a new trial.

Instead, counsel from the Georgia Attorney General’s office responded by trying to minimize the juror’s statements and asking the court to ignore the bias. First, they went to see the juror the next day after reading his statements of racial bias and obtained a new statement. In this new statement, the juror did not deny what he said about Black people or Tharpe. Instead, he complained that the lawyers were not clear enough about their purpose in talking with him and that he had been drunk when he talked with the lawyers.

The state attorneys then came to court and argued that the racial bias of the juror should be irrelevant to Tharpe’s death sentence because the law should not permit investigation into racial bias by jurors after the verdict. Unfortunately, this response was hardly surprising. Georgia’s Attorney General’s office had years of practice defending racially tainted capital cases from Mr. Briley’s office.

How do we know that capital prosecutions in Briley’s office were contaminated by racial discrimination? He put it in writing.

In 1978, Briley wrote an “infamous” handwritten memo instructing the clerk’s office on how to reduce the number of Black people and women on juries without detection. In other words, he explained how to discriminate and get away with it. He also repeatedly removed qualified Blacks from jury service in violation of the constitutional prohibition of using race in jury selection. Although it is notoriously difficult to show purposeful discrimination in jury selection because of the wide deference afforded to prosecutors, courts found that Briley’s actions in fact met the high burden of proof required.

During his 20-year tenure between 1974 and 1994, Briley tried 33 capital cases — 24 of which were against Black defendants like Tharpe. In the cases with Black defendants, 90 percent of the jurors Briley removed from serving in these capital cases were Black.

In Tharpe’s case, the state court ruled that the noxious statements by the juror were inadmissible because the law protects jury verdicts as unimpeachable. In other words, even where there is smoking-gun proof that one or more jurors used racially biased decision-making, courts will not reopen jury verdicts. The state court denied the claim on the wrong theory that jurors should not be permitted to testify about how their racial bias affected the verdict.

This question — whether courts should revisit jury verdicts when presented with proof of racial bias by a juror in decision making — was answered with a resounding yes earlier this year in the Supreme Court case, Pena-Rodriquez v. Colorado. In a 5–3 decision, the justices ruled that it “must become the heritage of our Nation to rise above the racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”

Tharpe’s appeals proceeded through state and federal courts without any court ever considering whether the juror’s profoundly troubling remarks violated the Constitution. Even though Pena-Rodriguez makes clear that Tharpe should receive a hearing, halting his execution and reopening his federal case requires that he show extraordinary circumstances. The Supreme Court ruled in another case this year, Buck v. Davis, that the “noxious strain of racial prejudice” constituted extraordinary circumstances that required the reopening of federal habeas proceedings.

Halting Tharpe’s execution today should be an easy call. Reopening his case and allowing a court to rule on the proof of racial taint by the juror in Tharpe’s case is the only path forward commensurate with recognition of equal dignity of all. Keith Tharpe deserves a new trial before a jury of his peers. Otherwise, we will condone a criminal justice system that allows racial animus to influence matters of life and death.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Sessions scales back federal reform as police-community relations continue to crumble

Sessions scales back federal reform as police-community relations continue to crumble

In what can be seen as a natural extension of Jeff Sessions’ already-evident disdain for Obama-era criminal justice policies, the Attorney General announced Friday that the Department of Justice would scale back its Office of Community Oriented Policing Services (COPS). The COPS program was known in part for investigating the work of local police departments and issuing reports on problematic practices or broader misconduct. Sessions’ move reflects the Trump administration’s unequivocally pro-police stance, as well as the Attorney General’s clear contempt for federal oversight of local law enforcement.

“The DOJ is basically saying to police departments, ‘You guys are doing a great job, and you’re on your own now,’” former Boston police officer and criminal law professor Tom Nolan told In Justice Today. “Whatever COPS is going to engage in now is going to be a radical departure from what happened under Obama, or even Bush.”

The DOJ’s announcement was vague, promising “technical assistance and support” from the updated version of the COPS Office without specifying what that might mean in practice. It was clear, however, that the program will no longer investigate local police departments and promote reform as it had increasingly done under Obama, and local police administrators will no longer be able to seek reform-based guidance from the DOJ.

“Changes to this program will fulfill my commitment to respect local control and accountability, while still delivering important tailored resources to local law enforcement to fight violent crime,” said Sessions in a statement.

The COPS program was well-received by some of the local departments it engaged with, while other collaborations were less successful. Advocates hailed the Office’s work as a less-intrusive alternative to court-ordered reforms. Darrell Stephens, executive director of the Major Cities Chiefs Association, an alliance of Chiefs and Sheriffs representing the largest cities in the U.S. and Canada, noted by email to In Justice Today that for the Las Vegas Police Department, the “experience [with COPS] was a good one … It was helpful in making significant changes to their training and investigations of officer involved shootings.” Stephens noted that other departments had a less positive experience, specifically citing San Francisco and Milwaukee.

At Chief of Police Edward Flynn’s request, the Milwaukee Police Department began working with the COPS Office in late 2015 following the fatal shooting of Dontre Hamilton by a police officer. A draft report from the Department of Justice delivered to Flynn in mid-2016 was met with frustration with what Flynn called “factual errors,” and his department had since been collaborating with the DOJ to clarify and finalize the report and recommendations so that it could begin implementing reforms.

Notwithstanding those frustrations, in a letter published following Sessions’ announcement, Flynn lamented the scaling back of the COPS program, noting that it would cut short his efforts to work with the DOJ to improve police-community relations and that his department would never receive a finalized draft. Further, the letter seemed to criticize Sessions’ choice to separate the goals of improving police-community relations and combatting violent crime.

“To separate concerns about violence from concerns about police efforts risks making each discussion disingenuous,” wrote Flynn.

The DOJ’s decision to dramatically scale back the work of the COPS Office comes as fractured police-community relations have once again taken center stage in St. Louis, Missouri. On Sunday night, officers in riot gear chanted, “Whose streets? Our streets!” as they boxed in peaceful protesters and arrested roughly 80 people, some of them violently. The arrests included a St. Louis Dispatch reporter who was pepper sprayed in the face after being pinned to the ground.

“We should be concerned about the message that rank and file police officers are receiving — that the Feds are adopting a hands-off attitude pertaining to local law enforcement practices,” says Nolan. “What we saw in St. Louis was a new low.”

More in Explainers

Baltimore body camera controversy grows

Flickr user northcharleston. Photo was modified for this article.

Baltimore body camera controversy grows

In the last month, the Baltimore Police Department has been rocked by accusations that officers are staging or “reenacting” the discovery of drugs for the benefit of capturing, after the fact, the seizure of evidence on their body cameras. In response, Baltimore County State’s Attorney Marilyn Mosby has decided to drop the charges in those cases — and possibly hundreds of others linked to the officers involved. Mosby’s decision has prompted a backlash from Police Commissioner Kevin Davis and police union officials, and this controversy is raising substantial issues about the integrity of Baltimore drug enforcement operations and the future of body cameras.

The City of Baltimore has spent millions of dollars in the last two years to outfit officers with body worn cameras. The initiative is part of a program to instill public confidence in law enforcement in the wake of the 2014 death of Freddie Gray. Unlike many cities, Baltimore has a clear set of policies about the use of these cameras: officers are required to turn their cameras on whenever they respond to calls for service or undertake investigatory or enforcement action.

But, as has been clear for some time, this is not happening. In the three cases currently under review, officers failed to have their cameras on as required. This discovery comes on the heels of numerous prior incidents, 62 of which have resulted in low level disciplinary action against officers for failure to follow policy. In the words of Commissioner Davis, “In 2016 we were dealing with some police officers who are [sic] reluctant to use it as our policy required them to use it…some of those arrests from 2016 are now making their way into courtrooms.”

Body camera programs have been adopted by thousands of police departments in the last three years in response to growing concerns about excessive use of force, racial profiling, and other forms of police misconduct, especially in communities of color. The use of cameras raises profound concerns about potential invasions of privacy, but many feel it is worth that invasion if it enhances police performance, reduces frivolous complaints against police, and improves public confidence in the police. Increasingly, however, it appears that the use of these new systems is not furthering these intended objectives.

Time and again, those who appear in body camera videos and feel they have been mistreated by law enforcement are unable to get access to the footage. Video footage has been suppressed by departments in high profile cases, often for years, and criminal defense lawyers often experience long delays in getting access to this crucial evidence — sometimes with the result being that their clients languish in jail for months longer than necessary. I and othershave called for taking control of footage away from police and prosecutors and turning it over to an independent body with clear rules for providing access to those affected by a given incident, without sacrificing anyone’s privacy.

The staging or re-creating of drug seizures by officers in Baltimore for the purposes of recording them on body cameras is a violation of evidentiary rules, body camera regulations, and possibly criminal law. The State’s Attorney was correct in dropping the charges in cases involving these officers. If nothing else, these incidents will make it close to impossible to convince a jury beyond a reasonable doubt of someone’s guilt when the body camera apparently was turned on after the fact — and when, in some instances, the “staging” was not disclosed in the officer’s probable cause statement. These troubling and unprecedented practices simply cannot promote community trust or confidence in the actions of law enforcement. As State’s Attorney Mosby noted in a statement she issued explaining her actions, these revelations “undermine public trust and create indefensible doubts in the minds of the general public, judges and jurors.”

Chief Davis and police union officials have defended their officers, claiming that the officers were only seeking to document the legitimate discovery of drugs, and that they were doing an important service for the people of Baltimore.

To be sure, there is no evidence that the continual arrest of people for low level drug charges is doing anything to make Baltimore safer or reduce the negative impacts of drugs. Former Baltimore police officer Peter Moskos, in his book Cop in the Hood, describes in infuriating detail the utter futility of this approach. No matter how many times he and his colleagues arrest people for drugs, it has had absolutely no impact on the use or availability of drugs. All anyone has to do is just walk over a few blocks or wait a few minutes for someone else to sell them.

Even more concerning, these are the exact kinds of drug cases that have led to substantial erosions of Fourth Amendment standards protecting us from unreasonable searches and seizures. In his book Unwarranted, law professor Barry Friedman describes case after case where the War on Drugs has led to police practices and judicial decisions that allow for ever greater invasions by police. There is a real risk that body cameras will become a part of this dynamic. Officers in Baltimore should not be allowed to misuse this new technology just because they’re “getting drugs off the streets.”

These revelations make clear that body cameras are not going to be a panacea of improving policing or restoring public trust in the police. Worse, when used as part of this post-hoc “reenactment” manner, they run the risk of deepening public distrust and suspicion. Mosby was correct in responding definitively and unambiguously in rejecting these practices. Policy makers and local police need to follow suit.

Alex S. Vitale is Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College and author of The End of Policing. The views and opinions expressed in this article are Prof. Vitale’s and do not necessarily reflect the views of the Fair Punishment Project.
Thanks to Josie Duffy Rice.

More in Podcasts