The Supreme Court Stays Keith Tharpe's Execution At The Last Minute

Critically important decisions about who gets to live and who dies are being made — often along racial lines — by an almost uniformly white group of prosecutors.
Mr. Tharpe with his granddaughter.
Mr. Tharpe with his granddaughter.

Last night, after an agonizing four-hour wait while a last-minute appeal was being considered, Keith “Bo” Tharpe’s execution was temporarily stayed by the United States Supreme Court. Justices Thomas, Alito and Gorsuch dissented.

Mr. Tharpe, 59, was convicted of murder in Jones County, Georgia, in 1991. Tharpe’s prosecutor, Joseph Briley, had earned a reputation for favoring peremptory strikes in jury selection, and his strategy was no different in Tharpe’s case: He successfully got rid of five out of eight competent black jurors. A white juror, Barnie Gattie, sailed through Briley’s selection process.

In a sworn affidavit, Gattie (who is now deceased) displayed clear racial animus, saying, among other things, that, “After studying the Bible, I have wondered if black people even have souls. For example,” he continued, “look at O.J. Simpson. That white woman wouldn’t have been killed if she hadn’t have married that black man.” In describing black people “hanging around” his store, Gattie said:

I tell them, ‘n*gger, you better straighten up or get out of here fast.’ My wife tells me I am going to be shot by one of them one day if I don’t quit saying that.

In Georgia, the only entity within the state with the power to stay an execution is the five-person Georgia Board of Pardons and Parole. Georgia is one of only three states where a governor does not have the authority to grant clemency (though the governor appoints the new members of the board to staggered, renewable seven-year terms). The board rarely stay executions. Among the letters expressing support of Mr. Tharpe at his clemency hearing yesterday was one from the NAACP, which read: “A juror who doubts whether Black people have souls cannot make a reasoned, moral judgment about whether a Black defendant such as Mr. Tharpe should face the ultimate sanction.” The board disagreed and denied clemency. The Georgia Supreme Court then denied clemency.

The death penalty in the United States has never truly evolved from our nation’s original sin. It is not coincidental that the states which execute their citizens with the most regularity — Georgia, Oklahoma, Texas, Alabama, Louisiana and Virginia — were also hotbeds of lynching activity during Reconstruction. Lynching was a tool meant to reinforce racial inferiority and subordination, and it never went away: it just evolved, into a more sterile, less-transparent version of itself. The death penalty as we know it today is a direct scion of lynching and other forms of racial violence in America, primarily in the South.

There are thousands of murders that take place in this country every year, and the unlucky individuals who are sentenced to death for their crimes are not, typically, the most egregious offenders. Yes, Mr. Tharpe shot and killed his sister-in-law. It was a terrible crime, and he has spent the past few decades of his life atoning for it. He has expressed deep remorse. In prison, he overcame his addictions to crack cocaine and alcohol, accepted full responsibility for his choices and actions and found God. The facts of Mr. Tharpe’s crime are not being disputed. But similar crimes take place across the country by the thousands every year, and those individuals are not summarily condemned to die for the worst mistake they ever made.

Critically important decisions about who gets to live and who dies are being made — often along racial lines — by an almost uniformly white group of prosecutors. Black people have been and still are systematically barred from serving on juries. Black people are frequently executed for murdering whites, but white people are seldom executed for murdering blacks.

When the Supreme Court reinstated the death penalty in 1976, it was done with the (altogether unrealistic) premise that death sentences and executions would be handed down and carried out justly, that they would deter future crime, and that they would inflict meaningful and fair punishment upon our worst offenders. “Instead,” wrote Justice Thurgood Marshall 27 years ago, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue.

A pall of shame continues to hang over our country, but perhaps our collectively defeatist attitude about who is executed — and why — is starting to change. The Supreme Court made the right decision last night.