Excerpted From: Morgan Zamora, Capital Punishment for Latine Populations, 20 Hastings Race and Poverty Law Journal 19 (Winter, 2023) (86 Footnotes) (Full Document)


MorganZamoraRace and its vital and complex role in the creation of the United States has always presented a challenge in the administration of criminal sanction. This problem of race becomes exacerbated in context of the death penalty as punishment for those crimes considered most vile and inhumane. In 1983, the Court in Zant v. Stephens held that race must be “totally irrelevant to the sentencing process” in capital punishment proceedings. This valiant goal has yet to be realized. Succeeding cases and numerous studies of the system show that defendants of color, more specifically Black defendants, are disproportionately sentenced to death compared to their white counterparts. Analysis of the racially disparate effects of the capital punishment system are limited in that they tend to neglect those groups - namely the Latiné community - that do not fit neatly into the black and white dichotomy that permeates American consciousness.

It proves impossible to completely extricate the experiences of racial minority communities in the United States from one another as so many of the stereotypes that burden these groups overlap. However, it is necessary for greater attention to be given to Latiné populations that are often ignored or attributed the same treatment as Black American communities because the reactions that each of these groups elicits from the white majority are distinct in nature and magnitude and result in differing levels of jury bias. Factors distinct to the Latiné experience in the United States - immigration and citizenship status, low-socioeconomic status, gang affiliation, and Spanish language use - intersect in a manner which directly impacts the group's perceived criminality. The uncertainty around and misunderstanding of these associated characteristics gives rise to an inference of future dangerousness in capital punishment proceedings that involve Latiné defendants.

Through an analysis of these enumerated identities in context of the Latiné experience, it becomes clear that American courts remain far from the idealized Zant dream of a capital sentencing process that is untainted by racist paradigms. The presence of the future dangerousness question itself is partly responsible for maintaining a structure that allows for the admission of conscious and unconscious biases against the Latiné population and other communities of color. Only through introduction of active measures aimed at increasing awareness of racial bias in these capital proceedings can the system hope to combat prejudice and move toward genuine justice. Currently obtainable, more moderate procedural changes such as required jury instructions concerning the role of racial bias in sentencing open up the future possibility for a more racially equitable jury selection process that has increasing potential to limit the harm perpetuated against Latiné communities in capital sentencing determinations.

In choosing to analyze a population that has been historically marginalized and drastically underrepresented in United States society, it is necessary to include a few notes on the scope and limitations of this review. This writing actively chooses to make use of the word Latiné as opposed to Latino/a or Latinx. Latiné presents an option that is gender neutral and inclusive but does not present pronunciation difficulty for the native Spanish speaker whose diction does not easily adapt to the enunciation of the word Latinx.

This writing also actively refrains from using the identities of Latiné and Hispanic interchangeably as those who solely identify as Hispanic and not Latiné (i.e., those people with ancestry from Spain) are not meant to be included in this analysis. Generally, the Latiné identity includes those individuals who come from or have ancestors from Mexico, Dominican Republic, Puerto Rico, Cuba, some other Caribbean countries, Central America, and South America. The rich and varying diversity of the Latiné population creates some level of difficulty in analyzing bias and discrimination because the aggregation of so many extraordinary countries cannot possibly do justice to the unique peoples, cultures, and experiences of each. This writing is also limited in its inability to differentiate between those Latinés who identify as Indigenous, Black, White, Asian, Mestizo, or any other ethnic category.

Another difficulty in analyzing the effects of bias and discrimination on the Latiné community, particularly in context of the criminal legal system and capital punishment proceedings is the lack of data. The federal government has consistently collected data on the race of defendants, but some states have been slow to implement such measures and have only recently begun to use the all-to-broad identifiers of “Latino” and/or “Hispanic” to classify victims and defendants. Since more broad and inclusive data on the Latiné population and the various ethnonational identities that fall within its scope is deficient or nonexistent in many areas, this analysis has been supplemented with data collected on the Mexican population residing in the United States. This feels appropriate given that those of Mexican nationality or descent make up a majority of the Latiné population in the United States and many Latiné individuals deriving from other Latin American countries are wrongfully attributed Mexican ethnicity by an American populace largely biased toward that group. Mexican Americans also predominantly represent the Latiné population in capital executions: of the 127 Latiné men executed in the United States in the last fifty years, 103 were of Mexican descent.

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Though today's racism is more subtle than that of the past, it is not any less real or harmful. For American courts to “turn a blind eye to conduct that appears superficially race neutral but that in fact relies on prejudicial stereotypes based on race or ethnicity” illustrates the extreme depths to which racism has become entrenched in United States “justice” systems. American court systems need a major overhaul to ensure that all communities of color, but specifically Latiné communities that have long faced prejudice with so little attention provided to their plight, are given adequate protections where their lives become dependent upon the votes of twelve other human beings. Capital sentencing proceedings cannot hope to become wholly unbiased in a criminal legal system built upon racial inequity that consistently perpetuates and reaffirms societal prejudices.

While the best option for lessening racial bias in future dangerousness jurisdictions remains abolition of the vestigial question altogether, such radical change to the law is likely to remain unattainable and unwelcome by those jurisdictions that have upheld its scheme for so long. More moderate propositions such as race-switching and unconscious bias instructions, while not flawless in their execution, present great potential for bringing awareness to and limiting the role of implicit racial bias in capital sentencing. Ever greater potential exists in the even more progressive proposal to require that all capital defendants are judged by a jury composed of members of their own race - or at least members of other minority communities - who have a better understanding of and respect for the lived experiences of the defendants. Changes to capital sentencing procedures in future dangerousness states and all jurisdictions in which capital punishment is sanctioned will promote a more racially equitable assessment of Latiné defendants. Substantial reform will not only aid those marginalized communities of color but all people who look to United States courts to uphold the law in an honorable and just manner.