(Also posted on Daily Kos.)

Last week, South Carolina pardoned two great-uncles of radio personality Tom Joyner, both executed in 1913 for a murder they did not commit. The two African-American men had been falsely accused and wrongfully convicted of killing a white Confederate Army veteran. Historical records demonstrate that the authorities probably declined to prosecute the most likely suspects to avoid revealing that the victim was having an affair with a young black woman in the community.

This was 1913. This was South Carolina. But even with a black president governing in a purportedly post-racial world, race still plays a major role across the country in who lives, who dies and even who gets charged with a capital crime.

In the United States, each death-penalty state, as well as the federal government, has its own capital-sentencing statute and procedure. But what proves consistent throughout these various systems is the insidious influence of race on the decisions about who lives and who dies. Race looms large north and south, in the past and now, and whether the accused is innocent or guilty.

Nationally, studies consistently demonstrate that, everything else being equal, a defendant is approximately four times more likely to get the death penalty for killing a white person than for a black person. The racial configuration by far the more likely to result in a death sentence is a black defendant and a white victim. Studies of jurors from across various death penalty states demonstrate that in "black on white" murder cases with six or more white male jurors, juries issue a death sentence 78.3 percent of the time. But if three or more jurors were black males, the overproduction of death sentences disappears.

Under Connecticut's capital sentencing statute, black defendants have received death sentences at three times the rate of white defendants in cases with white victims. From 1995 to 2001 in New York (which has since abolished the death penalty) the state sought the death penalty twice as often when the victim was white as when the victim was black Historically, New York's numbers mock the principle of equal justice under the law: From 1890 to 1963 (when New York last performed an execution), 90.4 percent of executions were for the killing a white person, and 80 percent of those executed were black.

Under modern federal death penalty statutes as well, a majority of those sentenced to death have been people of color, a majority of those receiving a life plea have been white, and the government has sought the death penalty at an increased rate when the victim was white. (See the ACLU's 2007 report, The Persistent Problem of Racial Disparities in the Federal Death Penalty.)

The evidence of race's role takes definitive shape in individual cases also. For example, an Ohio case shows that the life of a black person has less value than that of a white person when deciding if a crime is capital. Gregory McKnight, a black man, was convicted of the separate murders of a young white woman and a young black man. Based on an extraordinarily tenuous theory that could have applied to either murder, the State charged McKnight with the aggravated kidnapping murder of the young white woman (but not of the young black man), and thereby obtained a death sentence

During the last two years, three men, including ACLU client Levon "Bo" Jones have been exonerated from North Carolina's death row: All three were falsely convicted of killing white victims. Jones was convicted and sentenced to death by an all white jury.

In a Texas case, a federal appeals court ruled that the State must grant a new trial to a Latino defendant who was sentenced to death based upon "expert" testimony that Latinos pose a greater threat of future dangerousness than whites.

As Justice Anthony Kennedy recognized in a recent Supreme Court case regarding school integration, race still matters in American society. Regrettably, race will likely still matter a century from now. The only surefire way to avoid further fatal mistakes like these, and to eradicate the role of race in the death penalty, is to abolish the death penalty itself.

On Wednesday, Texas Gov. Rick Perry dismissed three members of the Texas Forensic Science Commission, including the chairperson.

His timing was extremely suspicious, to say the least.

The commission was set to hear testimony today from an arson expert it had hired, Craig L. Beyler, who reviewed the “expert” arson testimony used in 1992 to convict Cameron Todd Willingham of killing his three children by setting their house on fire. In a detailed report (PDF), Beyler recently criticized the “expert” arson opinions used to convict Willingham as "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation." Beyler’s conclusions, which echo the findings of eight forensic arson specialists who have looked at the case, make it abundantly clear that Willingham, executed by the State of Texas in 2004 under Gov. Perry’s watch, was almost certainly innocent.

The governor had compelling information back in 2004 that Willingham’s conviction was based on junk science, but he ignored it and allowed the execution to go forward. Last month, he expressed confidence that Willingham was guilty and disparaged Beyler and the other experts who have reached a different, science-based conclusion.

Then on Wednesday, he announced he was replacing three of the commission’s members, and chose a Texas prosecutor as the new chairperson. This change delays Beyler's testimony and any other expert findings from his investigation until after the upcoming gubernatorial election.

Gov. Perry said that the change was “business as usual.” Unfortunately, his words ring all too true. Willingham is not the first likely innocent person executed by the State of Texas. Others include Carlos De Luna and Ruben Cantu. But the state has never acknowledged any of these tragic mistakes.

Business as usual, all right.

— By Matt Simpson, Policy Strategist, ACLU of Texas and Christopher Hill, State Strategies Coodinator, ACLU Capital Punishment Project

On Friday, the Houston Chronicle ran an op-ed by John Holdridge and Chris Hill of the ACLU's Capital Punishment Project. John and Chris wrote how the execution of Cameron Todd Willingham, who was almost certainly innocent, has "shocked the conscience of many Americans." But those of us who oppose the death penalty know that the risk of executing an innocent person is all too real: since 1973, 135 people have been exonerated from death row. Those exonerees lived to see freedom, but for some, exoneration came too late. Willingham's case should not be viewed as an anomaly. John and Chris write:

[The] publicity should not mislead Americans into thinking Willingham has been the only innocent victim of our error-prone system of capital punishment. There have almost certainly been at least nine others, and possibly many more given the flaws in our criminal justice system revealed by the recent explosion in DNA exoneration. These include Carlos DeLuna, Ruben Cantu, Gary Graham, Larry Griffin and, perhaps, Sedley Alley — names no doubt unfamiliar to most Americans.

On Monday, Ohio's execution team was unable to find a suitable vein in Romell Broom's arm so it could not inject poison into his body and put an end to his life. The failed attempts took so long that Ohio Gov. Ted Strickland finally gave Broom a reprieve until next week. Ohio has not done well with lethal injections.

Although the United States Supreme Court ruled in Baze v. Rees that Kentucky's three-drug cocktail did not create a substantial risk of causing unnecessary pain, the fact of the matter is that the lethal injection process is fraught with problems.

One big problem is finding a suitable vein. The Broom case demonstrates this, as do a number of others. After Angel Diaz was executed in Florida in December of 2006, an autopsy showed that the chemicals burned through his soft tissue indicating that the needles went through his vein rather than in his vein. Then-Gov. Jeb Bush instituted a moratorium to find out why the Diaz execution went so wrong.

Six years earlier, Florida had problems executing Bennie Demps by lethal injection because the execution team had difficulties finding a suitable vein. Demps claimed that he was "butchered" and he was bleeding "profusely" before the lethal drugs were administered. According to the warden, a "surgical procedure" had to be performed to find a suitable vein.

Botched executions in the quest to find a suitable vein transcends location, gender and infamy. Ricky Ray Rector made national news in 1992 when Arkansas governor and then-presidential candidate Bill Clinton left the campaign trail to ensure Rector's execution took place. The execution took 55 minutes because a suitable vein could not be found. In 2000, Arkansas had a problem finding a vein to insert into the arm of Christina Riggs. The team finally put the lethal needles in her wrists.

In Georgia, the execution team could not find veins for Jose High in 2001, John Hightower in 2007, or Curtis Osborne in 2008. Texas's problems include at least two inmates assisting the team with finding usable veins. In 1998, Texas executed Joseph Cannon. His vein collapsed and the needle came out during his execution causing Cannon to shout "it's come undone."

Execution teams come up with many excuses about the trouble they have. They say that suitable veins are hard to find in a person with a history of intravenous drug use. They also say that it is difficult to place needles in the arms of overweight inmates. Whatever the excuses, the inability to find a suitable vein creates an excruciating experience for the condemned, and sometimes the witnesses.

The fact of the matter is that there are no suitable veins. There is no humane way to end a person's life. When ruling Nebraska's electric chair was cruel and unusual punishment, Judge Connolly said "[w]e recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it." The only way we can punish cruelty without practicing it is to abolish capital punishment.