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U.C.L.A. Review

Capital , Latinos, and the Legal System: Doing Justice or an Illusion of Justice, Legitimated Oppression, and Reinforcement of Structural Hierarchies

Martin Guevara Urbina & Ilse Aglaé Peña

ABSTRACT

As the twenty-first century progresses, the influence of race, ethnicity, gender, and class in and punishment continues to be a pressing and polemic issue. With various antisocial control movements taking place, particularly in response to the Trump administration, the nature of crime and punishment is once again being redefined nationally and abroad. As in the past, this new punitive cycle of social control has revived support for what many consider to be the sanction of last resort: . But executions, and capital punishment in general, are not directly governed by crime trends. Rather, the simultaneous interaction of historical and contemporary legacies, conflictive race and ethnic relations, and the influence of various extralegal factors like citizenship, nationality, language, accent, skin color, and economics influence the use of such punishment. The history of the penalty in the United States is a story shaped and reshaped by the race and ethnicity of the offender and victim, and further fused by other intertwining factors at different points in time and geography. But because of the traditional adoption of a racially dichotomous black/white approach in investigating capital punishment, little is actually known about the experiences of executed and other Latinos. As such, to debunk historical myths about the effects of race and ethnicity in capital punishment in the United States one needs to document the Mexican and Latino experiences which have been left out of the pages of history.

AUTHORS

Martin Guevara Urbina, PhD, is author, coauthor, or editor of over seventy scholarly publications on a wide range of topics, including twelve academic books. Visit his website (http://www. martinguevaraurbina.com) for a complete list of Urbina’s research and publications and his Author Page on Amazon (http://amazon.com/author/martin.guevara.urbina) for his books.

Ilse Aglaé Peña, MA, has coauthored book chapters and refereed journal articles. Currently, Peña is working on a book, Hispanic Soldiers: The Latino Legacy in the U.S. Armed Forces, documenting the role, significance, and contributions of Latinos in the U.S. armed forces over the years.

66 UCLA L. Rev. 1762 (2019) TABLE OF CONTENTS

Introduction ...... 1764 I. The Color of Justice: How Many Mexicans Is a Horse Worth? ...... 1765 II. The Historical Contours of Crime and Punishment Over Time...... 1766 A. Mexicans/Latinos Executed, 1977–2018 ...... 1769 B. National Origin, Citizenship, and Ethnic Identity ...... 1770 C. Characteristics of Executed Mexicans and Other Latinos ...... 1773 III. The Significance of Commutations in Capital Punishment ...... 1779 A. The Stories of Three Mexican Nationals on ...... 1781 IV. Deadly Mistakes in Capital Punishment: A Question of Justice ...... 1784 A. The Stories of Clarence, Ricardo, and Christopher: The Quest for Justice ...... 1787 V. Female Executions in the United States ...... 1788 A. The Stories of Juanita and Chipita ...... 1789 VI. The Machinery of American Justice: Who Lives, Who Dies, Who Decides? ...... 1791 VII. The Global Nature of American and Social Control ...... 1793 VIII. Capital Punishment as Social Control: Past, Present, and Hope for the Future ...... 1794 A. Symbolic Justice ...... 1799 B. Capital Punishment in America: Underneath It All ...... 1800 Conclusion ...... 1804 Appendix ...... 1804

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INTRODUCTION

As noted by scholars like Adalberto Aguirre and David Baker, to provide a more holistic examination of capital punishment in America, one needs to look beyond the traditional black/white approach, which excludes not only Mexicans, but also the various other ethnic groups that constitute the Latino community, like Cubans and Puerto Ricans. As a result of adopting a dichotomous approach in theorizing, investigating, and publishing, little is known about executed Mexicans and other Latinos in the United States since 1976, when the U.S. Supreme Court held that the death penalty did not violate the Eighth and Fourteenth Amendments in Gregg v. .1 What were the experiences and characteristics of the individuals executed during this time period—the most crucial death penalty era in modern times? And of what ethnic group were those Latinos who were executed after Gregg in 1976? Based on capital punishment studies and the history of conflictive race and ethnic relations between whites and Mexicans,2 we would expect that most, if not all, of the Latinos who were executed from 1977 to 2018 were of Mexican heritage. Further, considering the historical legacy of hate in and the high volume of executions which occur in the —the “capitol” of capital punishment—we would predict that most, if not all, of the post-Gregg executions took place in Texas. This Article goes beyond the traditional black/white traditional approach by disaggregating the group of Latinos who were executed from 1977 to 2018 in the United States, focusing primarily (but not exclusively) on Mexicans and the selected issues that tend to influence the dynamics of capital punishment over time. While this Article’s primary objective is to determine the exact ethnicity of Latinos executed in the United States post-Gregg, it also contextualizes the relationship between race, ethnicity, and the death penalty to better elucidate the

1. Martin G. Urbina, Furman and Gregg Exit Death Row?: Un-Weaving an Old Controversy, 15 JUST. PROF. 105 (2002); Martin G. Urbina, A Qualitative Analysis of Latinos Executed in the United States Between 1975 and 1995: Who Were They?, 31 SOC. JUST. 242 (2004) [hereinafter Urbina, A Qualitative Analysis]; MARTIN GUEVARA URBINA, CAPITAL PUNISHMENT AND LATINO OFFENDERS: RACIAL AND ETHNIC DIFFERENCES IN DEATH SENTENCES (2011) [hereinafter URBINA, LATINO OFFENDERS]. For a detailed discussion of death penalty literature, its research methodology and limitations, and an analysis of Furman and Gregg, see MARTIN GUEVARA URBINA, CAPITAL PUNISHMENT IN AMERICA: RACE AND THE DEATH PENALTY OVER TIME (2012) [hereinafter URBINA, CAPITAL PUNISHMENT IN AMERICA]. 2. Sofia Espinoza Álvarez & Martin Guevara Urbina, Capital Punishment on : Who Lives, Who Dies, Who Decides—A Question of Justice?, 50 CRIM. L. BULL. 263 (2014); URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1; MARTIN GUEVARA URBINA & SOFIA ESPINOZA ÁLVAREZ, HISPANICS IN THE U.S. SYSTEM: ETHNICITY, , AND SOCIAL CONTROL (2018).

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impacts of the current punitive anti–social control movement—including President Donald Trump’s aggressive anti-Mexican political rhetoric—on the Latino experience. Because we seek to better understand the role of ethnicity and race in crime and punishment in its totality, this Article also makes note of executions of minority women (i.e., Latinas) and foreign nationals (i.e., Latinos) in the United States. Findings in this Article indicate that the influence of ethnicity and race in the distribution of punishment continues in the twenty-first century.

I. THE COLOR OF JUSTICE: HOW MANY MEXICANS IS A HORSE WORTH?

While fictitious, the following story illustrates the dynamics of race and ethnicity in the United States by strategically asking a polemic question. In George Washington Gómez, renowned Mexican American author Americo Paredes describes the experience of living with conflicting and consequential historical legacies like conquest, colonialism, , and immigration.3 Paredes tries to illustrate the influence of race and ethnicity in crime and punishment by using a mathematical experiment posed by the minor character of Orestes, an immigrant son of an exiled revolutionary intellectual living in a fictitious town called Jonesville in Texas’s Rio Grande Valley during la chia, the Great Depression. Orestes asks his best friend, the novel’s protagonist George Washington Gómez, whom everyone calls Gualinto: [Orestes]: “By the way, you know how many Mexicans a horse is worth?” [Gualinto]: “What kind of trick are you setting me up for?” “No trick. I was just reading the paper, and I figured it out . . . . Two men were sentenced in court yesterday here in Jonesville. A Mexican for stealing old man Osuna’s prize Arabian stud and a Negro for killing a Mexican in a fight over the price of a bottle of tequila . . . . The Mexican got ten years, the Negro two . . . . So you would think that before the law in this town a horse is worth five Mexicans.” “It figures.” “But wait. The stolen horse was recovered safe and sound from the Mexican who stole him. Not a scratch on his hides even. While the Mexican the parna [black] killed is stone cold-dead. No way of getting him back to life. What if the Mexican who stole the horse had killed

3. AMÉRICO PAREDES, GEORGE WASHINGTON GÓMEZ: A MEXICOTEXAN NOVEL 178–79 (1990).

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it? He would have got at least twenty years. So you can figure then that the horse is worth ten Mexicans.” “You always were good at arithmetic.” “But that’s not all. You know that in cases Mexicans and Negros get double the a white man would get. So what if the Mexican had been killed by a Gringo? The Gringo would have got off with a year. One divided into twenty: a Mexican then is worth one- twentieth the value of a horse. But that isn’t all of it . . . . Chances are that the Gringo’s sentence would be suspended. Then how much would a Mexican be worth? What’s one-twentieth of zero? Ask El [red-man, Indian]. He’s studying book-keeping, he ought 4 to know. And shake his hand for me.” While fictitious, this provoking message illustrates the implications of ethnic identity formation over time, and thus the intertwining effects of ethnicity, language, and skin color. Along with other factors, such as economics, immigration status, and education, these forces then influence the distribution of punishment. Within a broader context, as noted by Sofia Espinoza Álvarez: [S]ince ethnic minorities have been deemed insignificant as a worthy topic of investigation, minority defendants have received limited attention in criminal justice research and publication, and thus until recently the truths and realities of Latinos had been buried in the darkness of the past. Worse, with few Latino scholars in the privilege world of higher education, students of criminal justice, policymakers, and the public have viewed the Latino experience through the lens of “white male” ideology.5

II. THE HISTORICAL CONTOURS OF CRIME AND PUNISHMENT OVER TIME

To better capture the essence of crime and punishment in modern America, one must obtain an appreciation for the often-violent racial and historical transformations of the United States which have in one way or another influenced the nature of crime and punishment. After conquest in 1848, for example, and brutality against Mexicans eventually escalated into racial and ethnic oppression comparable to that of African Americans in the Jim Crow

4. Id. 5. Sofia Espinoza Álvarez, Latinos and the U.S. Criminal Justice System: The Road to , at 197, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL 180 (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018).

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South.6 The Treaty of Guadalupe Hidalgo set a border between Texas and Mexico, and ceded land that now includes the states of , Nevada, Utah, about half of New Mexico, parts of Arizona, Colorado, , , and Wyoming to the United States. Although widely known in the Mexican community and among some scholars, the history of mob violence and lynching—so-called illegal executions— of Mexicans remains relatively unknown to the general public.7 In fact, despite the recent flourishing of academic investigation, publication, and dialogue on lynching, scholars continue to overlook anti-Mexican violence, instead focusing on lynching against African Americans. More globally, while people tend to hear about and associate historical racially-motivated brutality with African Americans, similar experiences of Mexicans and Latinos have generally been twisted or omitted in both public dialogue and academic discourse—sometimes resulting in outright lies,8 eloquently explored by Wendy Leo Moore in Reproducing Racism: White Space, Elite Law Schools, and Racial Inequality,9 Tukufu Zuberi and Eduardo Bonilla-Silva in White Logic, White Methods: Racism and Methodology,10 and Joe R. Feagin in White Party, White Government: Race, Class, and U.S. Politics.11

6. For a detailed discussion on these specific issues, see ARNOLDO DE LEÓN, THEY CALLED THEM GREASERS: ANGLO ATTITUDES TOWARD MEXICANS IN TEXAS, 1821–1900 (1983); JUAN O. SÁNCHEZ, RELIGION AND THE KU KLUX KLAN: BIBLICAL APPROPRIATION IN THEIR LITERATURE AND SONGS (2016); JUAN O. SÁNCHEZ, THE KU KLUX KLAN’S CAMPAIGN AGAINST HISPANICS, 1921–1925: RHETORIC, VIOLENCE AND RESPONSE IN THE AMERICAN SOUTHWEST (2018); MARTIN GUEVARA URBINA ET AL., ETHNIC REALITIES OF MEXICAN AMERICANS: FROM COLONIALISM TO 21ST CENTURY GLOBALIZATION (2014). 7. RODOLFO ACUÑA, OCCUPIED AMERICA: A HISTORY OF CHICANOS (8th ed. 2015); JAMES ALLEN ET AL., WITHOUT : LYNCHING PHOTOGRAPHY IN AMERICA (2000); TOMÁS ALMAGUER, RACIAL FAULT LINES: THE HISTORICAL ORIGINS OF WHITE SUPREMACY IN CALIFORNIA (2008); DE LEÓN, supra note 4; Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44 HARV. C.R.-C.L. L. REV. 297–311 (2009); PHILIP DRAY, AT THE HANDS OF PERSONS UNKNOWN: THE LYNCHING OF BLACK AMERICA (2002); CAREY MCWILLIAMS, NORTH FROM MEXICO: THE SPANISH-SPEAKING PEOPLE OF THE UNITED STATES (2nd ed. 1990); MARTIN GUEVARA URBINA ET AL., ETHNIC REALITIES OF MEXICAN AMERICANS: FROM COLONIALISM TO 21ST CENTURY GLOBALIZATION (2014). 8. For a well analyzed and detailed documentation of Latino experience and narrative, see ALFREDO MIRANDÉ, THE STANFORD LAW CHRONICLES: DOIN’ TIME ON THE FARM (2005); JULIO NOBOA, LEAVING LATINOS OUT: THE TEACHING OF U.S. HISTORY IN TEXAS (2005); MARCOS PIZARRO, CHICANAS AND CHICANOS IN SCHOOL: RACIAL PROFILING, IDENTITY BATTLES, AND EMPOWERMENT (2005); URBINA & ÁLVAREZ, supra note 2. 9. WENDY LEO MOORE, REPRODUCING RACISM: WHITE SPACE, ELITE LAW SCHOOLS, AND RACIAL INEQUALITY (2007). 10. WHITE LOGIC, WHITE METHODS: RACISM AND METHODOLOGY (Tukufu Zuberi & Eduardo Bonilla-Silva eds., 2008). 11. JOE R. FEAGIN, WHITE PARTY, WHITE GOVERNMENT: RACE, CLASS, AND U.S. POLITICS (2012).

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Some scholars have traced historical aspects of the Latino experience with crime and punishment in the United States. In one of the few early studies exploring the lynching of Mexicans, Tony Dunbar and Linda Kravitz found that “[f]or a Mexican living in America from 1882 to 1930, the chance of being a victim of mob violence was equal to those of an African American living in the South.”12 In a provoking study entitled The Lynching of Persons of Mexican Origin or Descent in the United States, 1848–1929, William D. Carrigan and Clive Webb document “that the danger of lynching for a Mexican resident in the United States was nearly as great, and in some stances greater, than the specter of mob violence for a black person in the American South.”13 More recently, in The Law of the Noose: A History of Latino Lynching, constitutional scholar Richard Delgado documents that viciousness, brutality, and hatred against Latinos functioned as a well-calculated mechanism of social control, where lynching was strategically used to intimidate, oppress, control, and silence Mexicans and other Latinos.14 As for so-called legal executions, Adalberto Aguirre, Jr. and David Baker15 explored the impact of race and ethnicity in such executions from 1890 to 1986 and found that a total of 773 were executed in the Southwest, with 105 (14 percent) of the executed people being of Mexican heritage. Reporter Don Reid, who documented the role of race and ethnicity in capital punishment for a large part of the twentieth century and witnessed some 190 executions in Texas between 1923 and 1972 (the year Furman16 was decided by the U.S. Supreme Court, temporarily stopping executions until Gregg was decided in 1976), stated: [I]t took no study for me to accept that simple, ignorant men committed more of violence than did sophisticated men of means. And, it took but little time to realize that when sophisticated men of means did commit crimes of violence, they seldom were executed for them. Those who were electrocuted were the blacks, Mexican-Americans, the poor whites and whites out of favor in their communities for one reason or another, having nothing to do with the criminal allegations for which they died.17

12. TONY DUNBAR & LINDA KRAVITZ, HARD TRAVELING: MIGRANT FARM WORKERS IN AMERICA (1976), 259. 13. William D. Carrigan & Clive Webb, The Lynching of Persons of Mexican Origin or Descent in the United States, 1848–1928, 37 J. SOC. HIST. 413–14 (2003). 14. Delgado, supra note 7. 15. Adalberto Aguirre, Jr., & David Baker, The Execution of Mexican American Prisoners in the Southwest, 16 SOC. JUST. 150, 155 (1989); see also Adalberto Aguirre, Jr., & David V. Baker, A Descriptive Profile of Mexican American Executions in the Southwest, 34 SOC. SCI. J. 389 (1997). 16. Furman v. Georgia, 408 U.S. 238 (1972). 17. DON REID, EYEWITNESS: I SAW 189 MEN DIE IN THE 109 (1973).

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This observation regarding the influence of race and ethnicity in crime and punishment is consistent with Giardini and Farrow who found that people of Mexican heritage constituted the third largest group of people under the sentence of death in the state of Texas from 1924 to 1952.18 Of the 506 men who were placed in Texas between 1924 and 1964, 361 eventually died in the electric chair: 229 blacks, 108 whites, and 23 Mexicans.19 In their totality, these investigations expose the influence of not only race but also ethnicity in capital punishment up until the historical Furman and Gregg landmark decisions, which marked a new era of capital punishment and actual executions.20 This Article explores the currently underexamined relationship between race, ethnicity and capital punishment as it relates to Latinos in the United States.

A. Mexicans/Latinos Executed, 1977–2018

First, this Article focuses on Latinos executed in the United States from 1977 to 2018 because no one was executed between 1973 and 1976 as a result of the U.S. Supreme Court’s Furman decision in 1972, which held that the death penalty systems then in place violated the Eighth Amendment’s prohibition of cruel and unusual punishment, as detailed in Furman. But in 1976, the Court reaffirmed the constitutionality of capital punishment in Gregg.21 The time frame examined in this study therefore begins with the first post-Gregg execution, which took place on January 17, 1977, and ends on December 13, 2018. Second, of the 1,490 individuals who have been executed in the United States since Gregg in 1976, the most executions took place in Texas (558), followed by Virginia (113), Oklahoma (112), and (97). Of the 1,490 nationwide executions, 127 were identified as white or black Latino men. As noted in Table 1 of the Appendix, of the 127 Latino executions nationwide, the majority (107) were executed in Texas. And, as referenced in Table 1, of the 127 Latinos executed in the United States from 1977 to 2018, a total of 120 were executed in Texas, Florida, and Arizona—states which contain a high concentration of Latinos. As for the exact ethnicity of Latinos executed from 1977 to 2018, the great majority were of Mexican heritage, as reported in Table 1.

18. G. I. Giardini & R. G. Farrow, The Paroling of Capital Offenders, 284 ANNALS AM. ACAD. POL. & SOC. SCI. 85 (1952). 19. Death Row: Death Row History, EXPRESS NEWS, 1999, available at http://www.fdp.dk/uk/tdcj/history.htm. 20. Sofia Espinoza Álvarez & Martin Guevara Urbina, Capital Punishment on Trial: Who Lives, Who Dies, Who Decides—A Question of Justice?, 50 CRIM. L. BULL. 263 (2014); URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 21. Gregg v. Georgia, 428 U.S. 153 (1976).

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B. National Origin, Citizenship, and Ethnic Identity

Again, unlike with blacks and whites, establishing ethnic identity, citizenship, or national origin with regard to Latinos is critically complicated largely because of how information is collected and compiled.22 These data collection failings, combined with social changes like increasing multiculturalism and emerging trends in , as documented by Urbina in Twenty-First Century Dynamics of Multiculturalism: Beyond Post-Racial America23 and Urbina and Peña in Policing Borders: Immigration, Criminalization, and Militarization in the Era of Social Control Profitability,24 make it challenging to locate and analyze data regarding Latinos and the death penalty. We will elucidate some of the more pressing issues in the data gathering process by utilizing select death penalty stories to illustrate the complexity of delineating ethnic information—a necessary consideration in determining the exact ethnicity of executed Latinos, which is in turn necessary to better understand the role of ethnicity in capital punishment. The challenges inherent in determining the ethnic identities of Latinos are exemplified by the December 11, 1995 execution of an allegedly Mexican man who was once identified by a Yaqui-Mexican as part Yaqui Indian and part Mexican,25 making it difficult to determine if was indeed Mexican. As for the challenge of determining citizenship, some of the Mexican defendants could have been U.S. citizens who classified themselves as Mexican in formal documents or verbal dialogue,26 resulting in confusion as to whether they were U.S. citizens or foreign nationals. And in regard to determining national origin of those executed, our research shows that some of the executed Mexicans were in fact Mexican nationals (see Table 1).27

22. Martin Guevara Urbina, Latinas/os in the Criminal and Juvenile Justice Systems, 15 CRITICAL CRIM. 41 (2007); URBINA & ÁLVAREZ, supra note 2. Not all states keep race and ethnicity information of inmates under a sentence of death (death row) other than white and black, and the majority of states do not differentiate between the different Latino groups, with record keeping methods varying widely across states. As a result, capital punishment information on Latinos, especially for specific Latino groups, is scant or unreliable. Even state and national data sets either include Latinos with whites (Caucasian) or treat all Latinos as a unitary group; or, simply mentioned in a footnote or exclude them altogether. 23. MARTIN GUEVARA URBINA, TWENTY-FIRST CENTURY DYNAMICS OF MULTICULTURALISM: BEYOND POST-RACIAL AMERICA (2014). 24. Martin Guevara Urbina & Ilse Aglaé Peña, Policing Borders: Immigration, Criminalization, and Militarization in the Era of Social Control Profitability, in SPATIAL POLICING: THE INFLUENCE OF TIME, SPACE, AND GEOGRAPHY ON PRACTICES (Charles Crawford ed., 2018). 25. K. William Hayes, Personal communication with author via email (May 7, 1999). 26. Álvarez & Urbina, supra note 2. 27. Id.

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As an illustration of the complexity of establishing ethnic identity, citizenship, and national origin, consider the story of two executed minorities who were characterized as Latino in some sources. For these two individuals, the indicates that one person was executed (apparently under the identity of a white Latino) in Florida in 1989 and the other (apparently under the identity of a black Latino) in Utah in 1987. But we were unable to find evidence tying these individuals to a specific ethnic group or to Latino heritage; in fact, some data sources only classify them as black or white and do not mention a Latino identity at all. These two individuals, though, are worth noting for several reasons, especially the fashion in which they were treated by the media and the criminal justice system. According to one observer who lived approximately thirty miles from where the Florida murder was committed and attended the trial for several days, the defendant, Aubrey Adams, was born in New Mexico but moved to Florida as a child.28 K. William Hayes, a writer and reporter, found that although Florida school and state employment records had listed Adams’s ethnicity as “white- Hispanic” and “white-non-Hispanic” on various forms, everything else in his records indicated he was strictly white;29 that is, Caucasian, and not white Latino or white Mexican (as Mexicans are classified as white by law—an intriguing historical element vividly documented by Ian F. Haney López in White by Law: The Legal Construction of Race).30 Hayes, who also followed the proceedings of this particular death row inmate in various newspapers, found no evidence of Adams’s Latino heritage,31 revealing the difficulty of locating information containing the explicit and correct ethnicity of executed people, and thus the complexity of conducting research on Latinos. The other aforementioned death row inmate, Dale Pierre Selby, was executed in Utah in 1987. Based on the inmate’s data file (including appeals to federal courts and the U.S. Supreme Court), Selby was born in Trinidad, and there is some indication that “he MAY have been ‘Indian [and] Black’ but nothing to indicate that he was in any way Hispanic.”32 Kinder, an American lawyer, writer, and author of true crime classic, Victime: The Other Side of Murder, notes that Selby was once identified by an air force official as a “young black airman, a twenty-year-old Trinidadian named.”33 Kinder found that Selby was born in the isle of Tobago, which lies east of in the , and lived there until

28. Hayes, supra note 23. 29. Id. 30. IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). 31. Hayes, supra note 23. 32. Id. 33. GARY KINDER, VICTIM: THE OTHER SIDE OF MURDER 81 (1982).

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he was three.34 Twenty miles to the southwest of Tobago is Trinidad, where Selby grew up.35 There are three additional important facts relevant to Selby’s supposed black Latino ethnicity and to his case in general. First, Selby spoke some Spanish and while in San Antonio, Texas he “managed to fall in love with a Mexican.”36 This could have led to the Latino identification, though all other evidence indicates he was most likely black. Second, the charge to the county by his attorneys was “perhaps the lowest fee in the state’s history for a case of this magnitude,”37 which leads one to wonder whether Selby was particularly impoverished, and whether this fact led his attorney to advocate less zealously for Selby than he or she would have advocated for another client. Third, although a note was passed to a juror that read “hang the niggers,” the denied a mistrial and the all-white convicted Selby,38 bringing into question the “color of justice,” and, therefore, the legitimacy of American justice as a whole. As the discussion above indicates, it was impossible to trace these two individuals to a specific ethnic group or to Latino heritage; all gathered information indicates that Selby, executed in Utah, was black, and Adam, executed in Florida, was white. This conclusion is supported by John Culver, who claims that “Texas is the only state to have executed Hispanics” between 1977 and 1990.39 In all, while the task of locating the exact ethnicity of executed Latinos from 1977 to 2018 was tedious and laborious because of the complexity in data collection highlighted by the preceding anecdotes, only seven of the executed Latinos had to be classified as unknown because we were unable to determine their ethnicity. Specifically, with the objective of obtaining valid and reliable information, multiple sources of information were utilized in determining the ethnicity of Latinos executed during the timeframe under study. In addition to analyzing published sources, numerous emails were sent, multiple phone calls were made, and several letters were dispatched via U.S. mail to various government agencies (such as state offices of the attorney general, departments of and criminal justice, and police departments), political and professional organizations (like the League of American Citizens, the NAACP, , the Hispanic National Bar Association, the ACLU, and the Mexican American Legal Defense and Educational Fund),

34. Id. 35. Id. at 238. 36. Id. at 250. 37. Id. at 290. 38. Drano Killer Executed in Utah, CHI. DAILY L. BULL., July 30, 1992, at 1. 39. John Culver, Capital Punishment, 1977–1990: Characteristics of the 143 Executed, 76 SOC. & SOC. RES. 59 (1992).

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individuals (including attorneys, , and authors), newspapers (both national and international), magazines (both Spanish and English), radio stations, and television stations, in the hope of obtaining needed, reliable information. In some cases, relevant information was obtained, but in most cases the information was not available, clearly showing the difficulty of conducting research on specific Latino groups. The combination of several sources of information, though, served to confirm the identity of executed Latinos. Overall, the use of triangulated methods proved to be an efficient research approach, as the findings of one method reinforced and validated the findings of another, which is essential as we try to develop reliable and valid qualitative data that can eventually be used in quantitative research. As such, when investigating the Mexican experience, or the experience of any other ethnic or racial group, it is particularly important to utilize multiple procedures in gathering evidence to reduce possible sources of error and therefore avoid generating flawed or skewed results. As reported in Table 1, of the 127 executed Latinos, 103 were Mexican, 6 Cuban, 3 Salvadoran, 3 Puerto Rican, 2 Honduran, 1 Dominican, 1 Guatemalan, 1 Paraguayan, and 7 of unknown ethnicity.

C. Characteristics of Executed Mexicans and Other Latinos

The experiences of blacks, whites, Mexicans, and other racial and ethnic groups tend to be shaped and reshaped by various historical forces. The relationship between race, ethnicity and executions is revealed by the data collected on executed Latinos from 1977 to 2018—or, in particular, the characteristics of executed Mexicans, since the great majority of executed Latinos fall into this ethnic group. First, considering the societal fear of the inherent violence of racial minorities (particularly expressed under the Trump administration), the majority of victims of capital punishment were actually minorities (95 Latinos, 4 blacks, 2 Asians, and 72 whites), indicating that most were Latino-on-Latino, as reported in Table 1. Second, while some defendants remained under the sentence of death for only a few years before the execution was carried out, most stayed on death row for several years before they were executed (see Table 1), which is typical of executions in America, calling the utility of executions into question. Third, every executed Latino had a nonprofessional job, if they were employed prior to their arrest at all. And many defendants were young, uneducated, or their income was “just barely enough to get by” when they

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committed the crime which resulted in their death sentence.40 This indicates that if defendants were not indigent at the time of their arrest, they were soon indigent due to resource considerations. An attorney who witnessed one of the executions had this to say about the relationship between the death penalty and poverty: “I think [capital punishment] is at best extremely arbitrary, at worst extremely discriminatory against the poor.”41 Fourth, in American jurisprudence, an essential legal element in judicial proceedings is the defendant’s ability to be competent to stand trial. Yet some of the defendants were “mildly mentally retarded” or suffered from “severe brain impairment,”42—a common quality among the incarcerated population.43 For instance, Mario Márquez, a Mexican executed in Texas for killing his eighteen- year-old wife and fourteen-year-old niece, had an IQ below 70, which is considered mentally retarded.44 In fact, it was reported that Márquez “had an IQ estimated at 65, with adaptive skills of a 7 year old.”45 Charged with and murder, Miguel Ángel Flores, another Mexican, was represented by a court- appointed lawyer who was unable to speak Spanish; the defense attorney’s final argument at the sentencing phase took less than ten minutes, despite such arguments normally lasting up to three hours. Even the prosecution objected to the defense attorney’s final argument as a misstatement of the law. The defense attorney actually never argued Flores’s only hope of avoiding a death sentence— pleading mental incompetence—and the jury therefore never learned of his mental impairments. The most recent execution of a Mexican national included in our data set— that of Roberto Moreno Ramos, executed in Texas on November 14, 2018— illustrates not only the implications of incompetency to stand trial, but also the risks associated with inadequate representation. In a lawsuit Ramos filed against the Texas Court of Criminal Appeals, he alleged the court improperly barred him from presenting claims regarding ineffective legal representation at the trial and appellate levels. Danalynn Recert, Ramos’s appellate attorney, asked the U.S.

40. Álvarez & Urbina, supra note 2; Urbina, A Qualitative Analysis, supra note 1. 41. Ghoulish Murderer Is Executed in Texas, N.Y. TIMES, Dec. 12, 1995, at A24. 42. Álvarez & Urbina, supra note 2. 43. MARTIN GUEVARA URBINA, A COMPREHENSIVE STUDY OF FEMALE OFFENDERS: LIFE BEFORE, DURING, AND AFTER INCARCERATION (2008) [hereinafter URBINA, FEMALE OFFENDERS]; Martin Guevara Urbina, Life After Prison for Hispanics, in THE NEW LATINO STUDIES READER: A TWENTY-FIRST-CENTURY PERSPECTIVE (Ramon A. Gutierrez & Tomas Almaguer eds., 2016) [hereinafter Urbina, Life After Prison]; URBINA & ÁLVAREZ, supra note 2. 44. Álvarez & Urbina, supra note 2. 45. Denis Keyes et al., Defendants with Mental Retardation Executed in the United States Since the Death Penalty Was Reinstated in 1976, ADVOCACYONE, http:// www.advocacyone.org/deathpenalty.html [https://perma.cc/7QQ9-VVK4]

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Supreme Court to stop the execution, arguing that his constitutional rights were violated when the lower courts refused to review Ramos arguments that trial lawyers did not present evidence about his abusive childhood and mental illness, which could possibly have persuaded jurors to not seek the death penalty.46 Attorney Recer argued that Ramos was brutally beaten as a child by his father, suffered from brain damage, and suffered from bipolar disorder, issues that could have seriously affected his ability to control his impulses, emotions, and subsequently behavior. Considering these consequential circumstances, Mexican officials called for Ramos’s execution to be halted, claiming that he was one of multiple Mexican citizens condemned in the United States who were never informed when they were arrested that Mexican officials could provide them with legal and financial resources.47 Three retired Texas Court of Criminal Appeals justices filed formal documents with the U.S. Supreme Court arguing that Ramos’s execution should be stopped.48 The retired judges claimed that the appeals court appointed an incompetent appellate lawyer who did not investigate Ramos’s case adequately or completely.49 However, in the face of questionable evidence for execution, the Texas Court of Criminal Appeals, the Fifth U.S. of Appeals, and the U.S. Supreme Court did not accept formal requests to stop Ramos’s execution.50 Fifth, executed Latinos tend to have a history of chronic abuse and extensive drug use51—traits which are also common among incarcerated people and seem to worsen stress and depression, which in turn lead to suicidal thoughts and even .52 Sixth, some Latino defendants did not show signs of remorse, which contributed in part to their executions.53 But this apparent lack of remorse could be something other than a sign of innate viciousness, and instead indicate dissatisfaction with the very nature of Latino criminality and punishment in the United States. Henry Martínez Porter, a Mexican executed in Texas for the slaying of Fort Worth Henry Mailloux, expressed disgust with what he perceived as racially-motivated injustice in the moments before his death:

46. “I’m Ready,” Mexican Citizen Says Before Being Executed in Texas for Killing Wife, Kids, CBS NEWS (Nov. 15, 2018), https://www.cbsnews.com/news/roberto-moreno-ramos-executed- texas-today-2018-11-14 [https://perma.cc/BX8Y-W5TF]. 47. Id. 48. Id. 49. Id. 50. Id. 51. Álvarez & Urbina, supra note 2; URBINA & ÁLVAREZ, supra note 2. 52. URBINA, FEMALE OFFENDERS, supra note 41; Urbina, Life After Prison, supra note 41; URBINA & ÁLVAREZ, supra note 2. 53. Álvarez & Urbina, supra note 2; Urbina, A Qualitative Analysis, supra note 1.

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I want to thank Father Walsh for his spiritual help. I want to thank Bob Ray (Sanders) and Steve Blow for their friendship. What I want people to know is that they call me a cold-blooded killer when I shot a man that shot me first. The only thing that convicted me was that I am a Mexican and that he was a police officer. People hollered for my life, and they are to have my life tonight. The people never hollered for the life of the policeman that killed a thirteen-year-old boy who was handcuffed in the back seat of a police car. The people never hollered for the life of a Houston police officer who beat up and drowned José Campo Torres and threw his body in the river. You call that equal justice. This is your equal justice. This is America’s equal justice. A Mexican’s life is worth nothing. When a policeman kills someone he gets a or . When a Mexican kills a police officer this is what you get. From there you call me a cold- blooded murderer. I didn’t tie anyone to a stretcher. I didn’t pump any into anybody’s veins from behind a locked door. You call this justice. I call this and your society a bunch of cold-blooded murderers. I don’t say this with any bitterness or anger. I just say this with truthfulness. I hope God forgives me for all my sins. I hope that God will be as merciful to society as he has been to me. I’m ready, Warden.54 More globally, the way in which a defendant shows remorse, or “acceptance of criminal responsibility,” can vary by race and ethnicity. Considering powerful historical forces, including American criminal law, cultural standards of appropriate behavior, quality of legal representation, and intercultural and legal miscommunication,55 black and Latino defendants are thought to be less likely to express remorse than white defendants, which could result in a higher probability of receiving the death sentence. Some black and Latino defendants, for instance, might feel that they have been historically marginalized, oppressed, and intimidated; and, therefore, expressing remorse is a sign of weakness. In a sense, some Latino defendants could perceive remorse as accepting their victimization by society and now the criminal justice system. Seventh, of the 127 Latinos executed from 1977 to 2018, several death row inmates claimed innocence. For instance, the final words of Leonel Herrera, a Mexican executed in Texas for killing a police officer, were: “I am innocent, innocent, innocent. . . . Make no mistake about this. I owe society nothing. I am

54. Texas Man Put to Death for Slaying, UNION-TRIB., July 9, 1985, at A4. 55. Urbina, A Qualitative Analysis, supra note 1.

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an innocent man and something very wrong is taking place tonight.”56 Herrera’s claim is not unrealistic on its face; a significant number of death row inmates have now been found innocent through the application of DNA and other investigative techniques, raising doubts about the of those who have already been executed.57 More recently, on December 4, 2018, Joseph Garcia, Mexican, was executed for the 2000 killing of Irving police officer Aubrey Hawkins.58 Garcia launched a series of appeals which included claims of ineffective counsel, that Texas’s drugs were illegal, that he did not kill the officer nor intend to kill the officer, and that the prosecution was unable to prove the identities of the shooters.59 Mridula Raman, Garcia’s lead counsel declared, “You’re punishing someone with death for a crime that they neither themselves committed nor intended to commit so how is that serving a deterrent value?”60 Still, Garcia was convicted and given the death sentence under Texas’s law of parties, a state law that exposes people to be prosecuted for homicides they did not actually commit.61 In 1987, the Supreme Court affirmed that defendants can be executed even if they did not kill or intend to kill.62 Some legal scholars have characterized the law of parties as unconstitutional, violating the ban on cruel and unusual under the Eighth Amendment of the U.S. .63 Several Mexican nationals currently on death row in Texas claim innocence under this theory of unconstitutionality.64 As such, on some occasions, Mexico and other countries have refused to extradite fugitives unless the death sentence was waived

56. “I Am Innocent, Innocent”, HOUS. CHRON., May 12, 1993, at A1. 57. DNA’s Revolutionary Role Freeing the Innocent, , https:// www.innocenceproject.org/dna-revolutionary-role-freedom [https://perma.cc/P6P5-EAWY]. 58. Keri Blakinger, ‘Texas 7’ Escapee Joseph Garcia Executed in Huntsville, HOUSTON CHRON. (Dec. 4, 2018), https://www.houstonchronicle.com/news/houston-texas/article/Texas-7- escapee-Joseph-Garcia-scheduled-for-13441323.php [https://perma.cc/V524-Y3WW]; Tom Dart, ‘Texas Seven’ Joseph Garcia Set to Be Executed Under Controversial Law, GUARDIAN (Dec. 4, 2018), https://www.theguardian.com/world/2018/dec/04/texas-seven-joseph-garcia- set-to-be-executed [https://perma.cc/6HQS-GT7H]. 59. For a discussion on lethal injection drugs, see Ferris Byxbe & Martin Guevara Urbina, The New Face of Capital Punishment: Asphyxiation, 2017 LAE J. 45 (2017). 60. Dart, supra note 56. 61. Id. 62. Tison v. Arizona, 481 U.S. 137 (1987). 63. Texas Needs to Reform its ‘Law of Parties,’ Which Allows Death Penalty for People Who Haven’t Killed Anyone, MORNING NEWS (Feb. 2017), https:// www.dallasnews.com/opinion/editorials/2017/02/09/texas-needs-reform-law-parties- allows-death-penalty-people-killed-anyone [https://perma.cc/Z9EW-DW8W]. 64. Álvarez & Urbina, supra note 2; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1.

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in the United States,65 as illustrated by the highly publicized Florida case involving José Luis Del Toro, who fled to Mexico after committing a murder in Florida.66 Lastly, not only were some of the executed Mexicans represented by inadequate counsel, but in some cases no Mexican American or other racial minority people served on the executed person’s trial jury67—a situation which has occurred throughout history and can significantly influence the role of race and ethnicity in crime and punishment.68 For instance, Rudy Esquivel was sentenced to death by an all-white jury and executed in Texas in 1986, and Ramon Mata died of natural causes while on death row in Texas in 2000 after serving 15 years under a death sentence imposed by an all-white jury.69 Frustration with all- white was summed up by Henry Porter of San Antonio, Texas, who was executed in 1985 after being on death row for nearly eight years: “They call it equal justice, but it is your equal justice . . . . A Mexican’s life is worth nothing.”70 In a sense, Porter’s comments resonate with the essence of the question posed in the beginning of this Article, “How many Mexicans is a horse worth?” That is, these stories resonate with Paredes’s passage describing the implications of ethnic identity formation and its consequences for ethnicity, race, skin color, and resources. More globally, Pat Clark, executive director of Death Penalty Focus, made the following observation: “[I]t’s interesting that many folks consider the United States a more civilized country than Mexico and yet Mexico doesn’t have such a barbaric penalty.”71 In all, even though it is difficult to mathematically quantify the role of race and ethnicity in crime and punishment based on this descriptive information, executed Mexicans (and the other executed Latinos) seem to have defining characteristics which distinguish them from both black and white death

65. Álvarez & Urbina, supra note 2; URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 66. Jose Luis Jimenez, Death Waived for Del Toro, HERALD-TRIB. (Jul. 3, 2002), https://www.heraldtribune.com/article/LK/20020703/News/605230766/SH [https://perma.cc/5LUE-DNT3]. 67. Álvarez & Urbina, supra note 2. 68. For a detailed analysis of the influence of ethnicity in punishment, see IAN F. HANEY LOPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE (2003); Alfredo Mirandé, A Separate Class: The Exclusion of Latinos from Grand and Petit Juries, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018); URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1; MARTIN GUEVARA URBINA & SOFIA ESPINOZA ÁLVAREZ, ETHNICITY AND CRIMINAL JUSTICE IN THE ERA OF MASS INCARCERATION: A CRITICAL READER ON THE LATINO EXPERIENCE (2017); URBINA & ÁLVAREZ, supra note 2. 69. Richard C. Dieter, The Death Penalty in Black and White, DEATH PENALTY INFO. CTR. (June 4, 1998), https://deathpenaltyinfo.org/death-penalty-black-and-white-who-lives-who-dies-who- decides [https://perma.cc/5XY3-7XSJ]. 70. Killer Put to Death in Texas, N.Y. TIMES, July 10, 1985, at A11. 71. Mexico to Fight California Executions, SAN FRANCISCO CHRON., Aug. 5, 1993, at A15.

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row inmates facing execution, especially when it comes to commutations, as discussed below.

III. THE SIGNIFICANCE OF COMMUTATIONS IN CAPITAL PUNISHMENT

As with executions, the possible influence of race and ethnicity in commutation decisions ought to be examined to control for possible race and ethnic effects. Indeed, the importance of commutations cannot be understated: In a battle against time and the government to avoid execution, commutations are often the last hope of those fighting to avoid another death carried out by the state. And while there has been widespread pressure to commute the death sentences of several Latino defendants, especially Mexican nationals, based on claims of ethnic , civil rights and international treaty violations, innocence, lack of adequate financial and legal representation, mental illness, youth at the time of the offense, irreversibility of mistakes, or the defendants’ experience with chronic drug abuse and neglect, the executions were nonetheless carried out, particularly in Texas. In exploring the significance of race and ethnicity from an international context, it seems that several foreign nationals, most of them Mexican,72 who were sentenced to death in the United States from 1977 to 2018 were convicted in violation of their rights under Article 36 of the Vienna Convention on Consular Relations of 1963—an international treaty that became U.S. law in 1969.73 Article 36 requires authorities in the country where a foreign national is arrested to notify that person’s home country (such as by contacting the State Department or that country’s consulate) within 12 hours of the arrest. Some legal experts claim that the United States has followed a double standard in the application of international law. For instance, Robert Brooks, a Virginia attorney who represented Mario Benjamin Murphy, a Mexican national executed in Virginia for the murder-for-hire slaying of a U.S. Navy cook, asserted that “the State Department maintains a double standard when applying Article

72. Álvarez & Urbina, supra note 2; URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 73. Álvarez & Urbina, supra note 2; Amnesty International: Violation of the Rights of Foreign Nationals Under Sentence of Death, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/node/802 [https://perma.cc/VN7F-ABVE]; Marcia Coyle, Are 65 Illegally on Death Row in U.S.?, NAT’L L.J., Apr. 27, 1998, at A16; Urbina, A Qualitative Analysis, supra note 1; Margaret Vandiver, “An Apology Does Not Assist the Accused”: Foreign Nationals and the Death Penalty in the United States, 12 JUST. PROF. 223 (1999); Foreign Nationals Released on Grounds of Innocence, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/news/past/36/2003 [https://perma.cc/VR2Z-AY4L]

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36.”74 According to Brooks, while the “State Department insists on being notified whenever Americans are jailed abroad and that while failure to comply with Article 36 within 12 hours of an arrest is grounds for diplomatic , it allows the law to go unheeded when foreign nationals are arrested in the United States.”75 This double standard tends to bring out passion, hatred, and hypocrisy when the situation involves Mexico and the United States.76 Critics report that “[p]eople are going to death in violation of every article . . . in every case; Mexican consulates were not notified until after their citizens had been convicted and given the death sentence.”77 Contrast this with the 1994 caning of Michael Fay, an eighteen-year-old white male from Ohio who was lashed four times on his bare buttocks with a rattan cane in for vandalizing cars.78 Before the sentence was carried out, there was an enormous outcry from Americans expressed in the U.S. media79—which, again, is a common reaction in the United States when something happens to Americans in Mexico, while thousands of abuses are routinely perpetrated against Mexicans in the United States, many of which are implemented by the very agents of the law,80 as documented by Urbina and Álvarez in Latino Police Officers in the United States: An Examination of Emerging Trends and Issues.81 Notably, during the forty-one years under study, 1977–2018, when Mexican nationals approached their execution date the Mexican government (including the president and state governors), protestors on both sides of the border, religious groups, and international organizations like the League of Latin American Citizens called on the executing state’s governor to commute the sentences,82 often citing the effect of race and ethnicity in capital

74. Rick Halperin, Death Penalty News (1997), at 6. 75. Id. 76. URBINA & ÁLVAREZ, supra note 2; IMMIGRATION AND THE LAW: RACE, CITIZENSHIP, AND SOCIAL CONTROL (Sofia Espinoza Álvarez & Martin Guevara Urbina eds., 2018); Álvarez & Urbina, supra note 2; Martin Guevara Urbina & Leslie Smith, Colonialism and Its Impact on Mexicans’ Experience of Punishment in the United States, in RACE, GENDER, AND PUNISHMENT: FROM COLONIALISM TO THE WAR ON TERROR (Mary Bosworth & Jeanne Flavin eds., 2007). 77. Halperin, supra note 72. 78. Spare the Rod, Spoil the Child: Michael Fay’s Canning in Singapore, HUFFINGTON POST (Dec. 6, 2017), https://www.huffpost.com/entry/spare-the-rod-spoil-the-c_b_8012770 [https://perma.cc/T485-9Q4E]. 79. Id. 80. See IMMIGRATION AND THE LAW, supra note 74; URBINA & ÁLVAREZ, supra note 66; URBINA & ÁLVAREZ, supra note 2. 81. MARTIN GUEVARA URBINA & SOFIA ESPINOZA ÁLVAREZ, LATINO POLICE OFFICERS IN THE UNITED STATES: AN EXAMINATION OF EMERGING TRENDS AND ISSUES (2015). 82. Álvarez & Urbina, supra note 2; Urbina, A Qualitative Analysis, supra note 1; Jolie McCullough, Texas Executes Mexican National Despite International Ire, TEXAS TRIB.

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punishment.83 As reported in a November 8, 2017 article, “Texas Executes Mexican National Despite International Ire,” Texas executed death row inmate Ruben Cárdenas, a Mexican national, despite a flurry of last-minute appeals to the U.S. Supreme Court and objections from his native country and experts. Mexico’s deputy foreign minister for North America, Carlos Sada, told reporters that Texas prosecutors did not follow and that Mexico was looking to stay the execution. Hours before the execution was set to begin, the Mexican Senate urged Mexican President Enrique Peña Nieto to call Texas officials to stop the execution. Agnes Callamard and Elina Steinerte, independent experts with the United Nations’s Human Rights system, reported: “If the scheduled execution of Mr. Cárdenas goes ahead, the US Government will have implemented a death penalty without complying with international human rights standards.” While this descriptive data might be characterized as anecdotal, some empirical studies have discovered ethnic effects in death sentencing dispositions. In a highly advanced quantitative study utilizing logistic regression analysis, for example, Urbina found ethnic effects in final outcomes.84 The results of that study show that Latinos who were under the sentence of death in California, Florida, and Texas from 1975 to 1995 were less likely to have their death sentences declared unconstitutional by state and federal courts than were both African Americans and whites.85 The study also found that Latino inmates in those three states were less likely to have their overturned by an appellate court during this twenty-year period than were African Americans and whites.86 Despite this evidence of racial and ethnic inequity, final outcomes in death sentencing and other later stages of the judicial process have received minimal attention in academic discourse.

A. The Stories of Three Mexican Nationals on Death Row

Ramon Montoya Facundo, executed in Texas in 1993 for killing a Dallas police officer, was the first Mexican citizen executed in the U.S. post-Gregg (see

(Nov. 8, 2017), https://www.texastribune.org/2017/11/08/planned-execution-mexican- national-draws-international-ire [https://perma.cc/ZMV5-Z9GL]. 83. Urbina, A Qualitative Analysis, supra note 1 84. Martin G. Urbina, Race and Ethnic Differences in Punishment and Death Sentence Outcomes: Empirical Analysis of Data on California, Florida and Texas, 1975–1995, 1 J. ETHNICITY CRIM. JUST. 5, 5–6 (2003); URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 85. Urbina, supra note 82, at 24–26. 86. Urbina, supra note 82, at 24–26.

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Table 1).87 Facundo spent more than a decade on death row without any contact with the Mexican consulate. When Mexican authorities finally learned of his case, Facundo’s legal appeals were nearly over and the only remaining option was to appeal for clemency.88 Being the first Mexican national to be executed in Texas in fifty-one years, there were worldwide protestations, as described by various news stories and academic articles.89 On behalf of Facundo, the Mexican National Human Rights Commission, the Vatican, and the National Network of Civil Rights Organizations (which is made up of more than thirty Mexican groups) called for a reprieve—not challenging his guilt, but instead objecting to the death sentence, which was viewed as prejudiced, racist, repugnant, and barbarous.90 Irineo Tristan Montoya, executed in 1997 for killing South Padre Island businessman John Kilheffer, was the second Mexican citizen executed post- Gregg, as no Mexican citizen had been executed in the United States since Ramon Facundo was put to death in 1993.91 Notably, “[a]fter a lengthy police interrogation conducted without the benefit of counsel,” Montoya, who was eighteen at the time of the crime, “reportedly signed a four-page confession in English, a language he did not speak, read, or write.”92 As such, a director of Comité Nacional de La Raza expressed his concerns about the mechanics of capital punishment in America: This is the global aspect—not only are we trying to save the life of an innocent man and how he was used as a scapegoat—but it’s also a protest of the justice system that is discriminatorily used against people of color.93 On the day of Montoya’s execution, a Mexico City newspaper reported: “Today, They Killed Him.” The headline in La Jornada, a leading Mexico City daily newspaper, read: “Indignation!”

87. Mexican Faces Thursday Execution in Texas for Slaying Police Office, UNITED PRESS INT’L (Mar. 24, 1993), https://www.upi.com/Archives/1993/03/24/Mexican-faces-Thursday-execution- in-Texas-for-slaying-police-officer/6510732949200 [https://perma.cc/99ZG-KRYL]. See also James Michael Olivero, The Imposition of the Death Penalty on Mexican Nationals in the United States and the Cultural, Legal and Political Context, 2 33 (2013). 88. RICARDO AMPUDIA, MEXICANS ON DEATH ROW (Susan Rascón trans., 2010). 89. See, e.g., James Michael Olivero, The Imposition of the Death Penalty on Mexican Nationals in the United States and the Cultural, Legal and Political Context, 2 LAWS 33 (2013). 90. Álvarez & Urbina, supra note 2. 91. Sam Dillon, Mexico Reacts Bitterly to Execution of One of Its Citizens in Texas, N.Y. TIMES (June 20, 1997), https://www.nytimes.com/1997/06/20/world/mexico-reacts-bitterly-to- execution-of-one-of-its-citizens-in-texas.html [https://perma.cc/X2ZP-2E77]. 92. Id. 93. Álvarez & Urbina, supra note 2.

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A third Mexican national, José Ernesto Medellin, executed in 2008 for the murder of Jennifer Ertman and Elizabeth Peña, gained international notoriety when Mexico sued the United States in the International Court of Justice on behalf of Medellin and 50 other Mexican nationals alleging that the United States had violated Article 36.94 Originally, the U.S. government argued that Mexico’s suit was “an unjustified, unwise and ultimately unacceptable intrusion in the United States criminal justice system,” but reversed its position shortly.95 The U.S. Supreme Court agreed to hear the case on May 1, 2007, but dismissed the case to allow Texas to comply with a U.S. government directive. The Texas Court of Criminal Appeals refused to change its decision, with one judge accusing the White House of an “unprecedented, unnecessary and intrusive exercise of power over the Texas court system.” In response, the George W. Bush administration asked the U.S. Supreme Court to overturn the Texas court’s decision, arguing that the decision, if not reversed, “will place the United States in breach of its international law obligation” to comply with the International Court of Justice’s decision and that it would “frustrate the president’s judgment that foreign policy interests are best served by giving effect to that decision.”96 The Court rejected the Bush administration’s arguments, and on July 16, 2008, the International Court of Justice asked for a stay of execution on behalf of Medellin and four other Mexican nationals whom they claimed did not receive a fair trial.97 The next day, a spokesperson for Texas Governor said that the state would continue with the execution and that “[t]he [W]orld [C]ourt has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court. It’s very important to remember that these individuals are on death row for killing our citizens.”98 These cases not only illustrate the complexity of executions and the global nature of capital punishment, but also define elements of capital punishment as it specifically relates to Mexican inmates. Of course, such characterizations are not only related to the situation of Mexican nationals, but also Mexican Americans and Latinos in general. For

94. Medellín v. Texas, 552 U.S. 491 (2008); Bill Mears, Mexican Executed After Appeal Denied in Texas, http://www.cnn.com/2008/CRIME/08/05/scotus.execution. 95. Linda Greenhouse, Supreme Court to Hear Appeal of Mexican Death Row Inmate, N.Y. TIMES (May 1, 2007), https://www.nytimes.com/2007/05/01/washington/01court.html [https://perma.cc/67DZ-2YQF]. 96. Id. 97. Texas Execution Sets Off International Dispute, TCDAP (Aug. 4, 2008), https://tcadp.org/2008/08/04/texas-execution-sets-off-international-dispute [https://perma.cc/2EDR-JGSG]. 98. Wade Goodwyn, Planned Execution Puts Mexico, Texas at Odds, NAT’L PUB. RADIO (June 15, 2011), https://www.npr.org/2011/06/15/137202798/planned-texas-execution-has-mexico- up-in-arms [https://perma.cc/WBT9-D35W].

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instance, the case of Leonel Herrera, a Mexican American executed in 1993, also brought national and international protestations on the grounds of innocence,99 elements of which paralleled cases involving Mexican nationals. Still, Mexican citizens and Mexican Americans have been executed under extremely questionable circumstances, often over protestations of the Mexican government and national and international organizations, with some such cases receiving wide publicity, and others, total silence.100 In the case of Ramon Montoya, for example, outside the Texas prison unit where the execution took place, protestors held candles and chanted in Spanish, “Justice!” and “Life, not death!”101 The demonstration against the execution of Montoya by the state of Texas was the largest in several years.102 In many other cases, though, “there were no conferences . . . no Hollywood stars speaking out for [death row inmates] . . . no international attention riveted on [their] case . . . no speeches . . . no rallies.”103 For many death row inmates of Mexican heritage, the bold headline across the front page of La Jornada after the death sentence of Ramon Facundo summarizes their reality: “EXECUTED.” Other Mexico City newspapers, like El Nacional, made similar statements and criticized the execution on various grounds, though primarily referencing the influence of race and ethnicity in crime and punishment. In the United States, Ramon Facundo’s lawyer made the following observation about the actions taken by the Mexican government on behalf of Facundo and other Mexicans on death row: “They have done everything you could ask a Government to do. . . . Unfortunately, to use the vernacular of Texas, Mr. Montoya is a wetback who killed a white cop”104—a comment which underlines the role of race and ethnicity in capital punishment in America.105

IV. DEADLY MISTAKES IN CAPITAL PUNISHMENT: A QUESTION OF JUSTICE

In the 41 years since the U.S. Supreme Court reinstated executions under Gregg, 1,490 people have been executed and the number of death row inmates has

99. Álvarez & Urbina, supra note 2. 100. Id. 101. Mexican National’s Execution Draws Angry Remarks, , HOUS. CHRON., Mar. 26, 1993, at A34. 102. Id. 103. Álvarez & Urbina, supra note 2; Urbina, A Qualitative Analysis, supra note 1; Texas, California Executions, WASH. POST, Aug. 25, 1993, at A9. 104. Tim Golden, Mexico Fights to Stop U.S. Execution, N.Y. TIMES, Jan. 25, 1993, at A19; Louis Sahagun & Juanita Darling, Unexpected Friend on Death Row, L.A. TIMES, Jan. 2, 1994, at A1. 105. URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1.

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drastically increased into the thousands.106 A focal question then, is: How many death penalty cases end in false convictions? And, by extension, do race and ethnicity play a role in cases resulting in false convictions or, worse, executions? In truth, nobody knows how many death row inmates may be innocent. But research, including research done through forensic science like DNA, strongly indicates that at least some death row inmates are innocent. According to the Death Penalty Information Center, at least ten innocent people have been executed since Gregg. Some investigators estimate that about 1 in 11, or about 10 percent (though probably higher) of death row inmates who are executed are innocent.107 Some assert that the figure is certainly much higher because once a person is executed the case is normally closed, and the majority of cases are never reviewed for possible error once the person is convicted and given a sentence of death.108 In fact, one study found that from 1976 to 1998 at least 75 people were wrongly sentenced to die,109 and that 156 individuals on death row have been found innocent, and thus exonerated and released from prison since 1973.110 And for every ten executed people in the U.S. since executions were reinstated in 1976, one person has been exonerated and released from prison.111 Moreover, contrary to the well-regarded legal standard of guilty beyond a reasonable doubt, at least thirty-nine people, including some inmates of Mexican heritage, have been executed in the face of strong evidence of innocence or grave doubt about being guilty of the charges.112 More recently, a new study, Rate of False of Criminal Defendants Who are Sentenced to Death, reported that about one in 25 people (4.1 percent) sentenced to death in the U.S. are innocent.113 The next question, then, is: How do innocent people get wrongfully convicted and executed? of explanatory factors is long and complicated, but one possible factor is the influence of race and ethnicity in policies and

106. Álvarez & Urbina, supra note 2; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 107. Executed but Possibly Innocent, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/ executed-possibly-innocent [https://perma.cc/CJN2-67Y9]; of Innocent Men and Women, NAT’L COAL. ABOLISH DEATH PENALTY, http://www.ncadp.org/pages/innocence [https://perma.cc/V6UP-UWHQ]. 108. URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1; Ed Pilkington, US Death Row Study, 4% of Defendants Sentenced to Die Are Innocent, GUARDIAN, https://www.theguardian.com/ world/2014/apr/28/death-penalty-study-4-percent-defendants-innocent [https://perma.cc/WSM5-QQUN]. 109. John McCormick, The Wrongly Condemned, NEWSWEEK, Nov. 9, 1998, at 132. 110. Exonerations of Innocent Men and Women, supra note 107. 111. Id. 112. Bianca Jagger, The Time Has Come to Say No to Death, HUFFINGTON POST (May 25, 2011), https://www.huffpost.com/entry/the-time-has-come-to-say_b_478388 [https://perma.cc/N3RY-MJ62]. 113. Samuel R. Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 PROC. NAT’L ACAD. SCI. 7230, 7230 (2014).

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decisions effectuated by police officers and court officials like judges, prosecutors, juries, and even defense attorneys. A second driving force behind wrongful convictions is the impact of inexperienced, incompetent, or unprepared defense attorneys, as judges tend to assign death penalty cases to inexperienced lawyers.114 Further, not only is capital punishment one of the most complex legal sanctions,115 it is also one of the most expensive,116 which further complicates the judicial process. Yet not too long ago, Alabama was paying lawyers only $20 an hour, up to a cap of $1,000, to prepare for a death penalty case, and $40 an hour to litigate in court. Therefore, while the legal proceedings for capital punishment are extremely expensive, lawyers get paid relatively little to defend people facing the possibility of receiving the death penalty. This pay discrepancy may disincentivize lawyers from zealously advocating for death penalty clients. For example, in Texas, one lawyer delivered a mere twenty-six-word statement at the sentencing trial: “You are an extremely intelligent jury. You’ve got that man’s life in your hands. You can take it or not. That’s all I have to say”—his client, Jesus Romero, Mexican, was executed in 1992.117 More recently, an investigation by the Chicago Tribune highlighted the possibility of wrongful death penalty sentences during George W. Bush’s tenure as governor of Texas from 1995–2000, despite his claims that his administration prioritized the fairness of such . The study found that of the 131 death row inmates executed during Bush’s time as governor, 43 of their trials included defense attorneys publicly punished for misconduct either before or after their work on the given death penalty cases. In forty of the executed inmates’ trials, defense attorneys presented no evidence or had only one witness during the sentencing phase of the two-stage trial. Twenty-nine trials included a psychiatrist who gave testimony that the American Psychiatric Association condemned as unethical and untrustworthy. Twenty-three included jailhouse informants, which are considered to be unreliable, and thus perhaps among the least credible witnesses,118 and twenty-three included visual hair analysis, which is consider to

114. URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 115. Id. 116. Álvarez & Urbina, supra note 2; Costs, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/costs-death-penalty [https://perma.cc/MP7B-8YTS] Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/millions-misspent [https://perma.cc/9UUA-SP22] (1994); see generally Martin Guevara Urbina, Indigent Defendants and the Barriers They Face in the U.S. Court System, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018). 117. John McCormick, supra note 107. 118. CHRISTOPHER REINHART, STUDIES OF THE DEATH PENALTY IN TEXAS AND NATIONWIDE (2000), https://www.cga.ct.gov/2000/rpt/2000-R-0887.htm [https://perma.cc/7M6N-JFDM].

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be an imprecise investigative technique.119 Finally, expert witnesses for the state had told jurors in several trials that blacks and Latinos in general are more likely to be dangerous in the future than whites120—clearly exposing the role racial and ethnic discrimination plays in capital punishment, a trend which is also well documented in empirical studies.121

A. The Stories of Clarence, Ricardo, and Christopher: The Quest for Justice

Although racial and ethnic discrimination continues to play a role in capital punishment, the current capital punishment era may be changing for the better, thanks in large part to the development of more sophisticated empirical studies of executions and an increasing public awareness of the issue. Moreover, the impactful work performed by anti–death penalty organizations and organizations like the Innocence Project has sometimes resulted in exonerations. For example, regarding the possible influence of race in capital punishment, Clarence Brandley, an African American janitor, was accused of killing a white girl in Texas in 1980.122 A police officer allegedly told Brandley and a fellow white janitor that one of them would be executed for the crime, then looked at Brandley and said: “Since you’re the nigger, you’re elected.”123 It was later discovered that prosecutors suppressed evidence in Brandley’s case, and he was freed after ten years in prison.124 As for the possible role of ethnicity, Ricardo Aldape Guerra, a Mexican national wrongfully convicted and sentenced to death in 1982 for the murder of a Houston police officer, was released on April 16, 1997, after spending nearly fifteen years on death row in Texas.125 Soon after his arrest, Mexican consular officials worked closely with volunteer lawyers representing Aldape in obtaining affidavits from witnesses in Mexico and continued to work closely with the

119. Id. 120. Casey Tolan, A Jury Was Told This Death Row Inmate Was Dangerous Because He Is Black. Now He’s Going to the Supreme Court, SPLINTER (Oct. 4, 2016), https://splinternews.com/a- jury-was-told-this-death-row-inmate-was-dangerous-bec-1793862426 [https://perma.cc/LJ2C-47R7]. 121. For a detailed review of death penalty studies, see URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 122. Clarence Brandley, NAT’L REGISTRY EXONERATIONS (Sept. 8, 2018), https:// www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3044 [https://perma.cc/74HF-Y65Z]. 123. Id. 124. Id. 125. Ricardo Aldape Guerra, NAT’L REGISTRY EXONERATIONS, https://www.law.umich.edu/special/ /Pages/casedetail.aspx?caseid=3267 [https://perma.cc/2JYP-WR7R].

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defense counsel in state postconviction proceedings.126 During this time, the Mexican government funded travel expenses for two of Aldape’s lawyers, who traveled to Mexico to obtain previously undiscovered evidence. Then, in 1992, the Houston Consul General was instrumental in obtaining new counsel for Aldape from the prestigious law firm of Vinson & Elkins.127 After spending millions of dollars on Aldape’s defense, lawyers convinced a federal judge that Aldape was innocent of all charges; the appellate court upheld the lower court’s ruling, which described police and prosecutorial misconduct in the investigation.128 After Aldape’s release, the attorney who led the law firm’s efforts stated that he would have never represented Aldape had it not been for the involvement of Mexican consular officers and the Mexican government. And Christopher Ochoa, a Mexican American, was released from prison in 2001 after serving twelve years on death row in Texas for a rape/murder he did not commit. In his defense, Ochoa was assisted by the Wisconsin Innocence Project, housed at the University of Wisconsin Law School and run by law professors and students. Headed by well-known criminal defense lawyers Barry Scheck and John Pray, the defense, using DNA testing, showed that Ochoa could not have murdered an Austin during a Pizza Hut in 1988.129 For innocent people on death row across the United States, the Innocence Project— one of the most sophisticated and effective defenders of those wrongly convicted in this new era of capital punishment—has become a symbol of hope.

V. FEMALE EXECUTIONS IN THE UNITED STATES

Perhaps because, in comparison to men, few women have been executed in the United States, their experiences have received minimal attention in academic investigations and public dialogue, making it difficult to explore the role of race and ethnicity in capital punishment in its totality. To begin, it is difficult to know the exact number of women executed in the United States because few records were kept on the subject and because newspapers were uncommon until the mid- 1800s. This lack of information is even worse where minority women are concerned. As vividly documented by David V. Baker in Women and Capital Punishment in the United States: An Analytical History, little attention was given to the execution of slaves and Mexican women during the seventeenth and

126. AMPUDIA, supra note 86. 127. Id. 128. Id. 129. Terrence Stutz, Freedom’s Embrace: 12-year Prison Ordeal Ends for Man Cleared by DNA Test, DALLAS MORNING NEWS (Jan. 17, 2001), https://truthinjustice.org/ochoa.htm [https://perma.cc/A8KE-R9E7].

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eighteenth centuries, with some states keeping no records of such executions, thus making it difficult to examine their experiences.130 Still, as reported by Baker, it is estimated that 505 women were executed in the United States between 1608 and 1900, with 306 being verifiable cases. Among the executed women, at least eight teenage girls were hanged.131 Native American Hannah Ocuish, aged twelve, was probably the youngest female execution, publicly hanged in on December 20, 1786.132 Rebecca Nurse, aged seventy-one, was the oldest, hanged for on July 19, 1692.133 In all, it is estimated that 575 women have been executed in the United States since 1632, constituting about 3.6 percent of the estimated 15,979 executions which occurred during that time.134 Since 1976, sixteen women have been executed, with Kelly Gissendaner, executed on September 30, 2015, being the most recent. As of December 31, 2018, sources show that fifty-five to fifty-eight women are on death row, including nine Latinas. Finally, possibly more so than with black and white women, the experiences of executed Mexican women and Latinas in general are difficult to investigate and thus seldom mentioned in academic discourse. Due to the unavailability of data on these populations, comparatively fewer Mexican women executed than white and black women, and no Latinas being executed in over a century (see Table 1).135 The cases of two Mexican women, though, illustrate the experience of executed women in the early days of America, characterized by Baker as an American system of patriarchal domination and female subordination.136

A. The Stories of Juanita and Chipita

The Fourth of July in 1851 was being celebrated in Downieville, California when a drunken miner, Fredrick Cannon, went to the house of Josefa “Juanita” Loaiza-Segovia, a petite, beautiful, and young Mexican girl, kicked her cabin door open, called her a prostitute, and tried to rape her. She was pregnant at the time. Cannon was chased away, but when he returned the next day, Juanita fatally

130. DAVID V. BAKER, WOMEN AND CAPITAL PUNISHMENT IN THE UNITED STATES: AN ANALYTICAL HISTORY (2016). 131. Female 1632 to 1900, FOLD3 (May 11, 2007), https://www.fold3.com/page/821- female-hangings-1632-to-1900 [https://perma.cc/W9FV-6P7G]; see also Women and the Death Penalty, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/women-and-death- penalty#Background [https://perma.cc/SPZ2-CSQK]. 132. Female Hangings 1632 to 1900, supra note 129. 133. Id. 134. Women and the Death Penalty, supra note 129. 135. Id.; Women Executed in the U.S. Since 1900, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/women-executed-us-1900 [https://perma.cc/3GZT-CLB7]. 136. BAKER, supra note 128.

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stabbed him. Quickly, a lynch mob formed and dragged her out of her home. A trial was held in the main town plaza with a hastily selected judge, a jury of twelve, and lawyers for both sides. During the four-hour trial, every statement made on behalf of Juanita’s case was ignored. In fact, the person testifying on her behalf was harassed and beaten by the angry mob. Juanita refused to speak on her own behalf, though she did request to see a priest, but was denied. She was found guilty, taken to her home, and given two hours to get ready for death. As Juanita was about to be hanged on the Jersey bridge, she adjusted the rope around her own neck, letting her long hair fall free. Then, with her arms and clothes tied down and a cap placed over her face, she spoke her final words: “Adios Señores.” William Ballou, who witnessed Juanita’s , wrote: “I arrived in Downieville on July 5, 1851, the mob took her out and hung her. It was the first woman I ever saw [hanged], and it was the most degrading sight I had ever seen.” Indeed, Juanita is often cited as the first legally executed female in California. The execution occurred soon after the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War—a war in which Mexico lost over half of its territory to the United States. This loss of territory further fueled notions of conquest, expansion, privilege, power, and control, and ultimately led to a reformulation of white supremacy and dominance over ethnic and racial minorities which eventually redefined and solidified the parameters of cultural diversity, the dynamics of multiculturalism, law and society, and social control.137 Another historical illustration of female oppression is the story of Josefa “Chipita” Rodríguez, a Mexican American who was convicted of murder and hanged from a mesquite tree in San Patricio, Texas on November 13, 1863.138 She was reportedly the first female executed in Texas. Her last words were “No soy culpable” (I am not guilty). A century later, the Texas Legislature passed a resolution noting that Chipita did not receive a fair trial. Clearly, these are situations in which race, ethnicity, and gender influenced the dynamics of capital punishment.139 Notably, while multiple Latinas (mostly Mexicans) were lynched, hanged, or legally executed before the twentieth century, no Latinas were executed in the United States during the twentieth or early part of the twenty-first century. In

137. URBINA & ÁLVAREZ, supra note 2. 138. Corpus Christi, A Black Day in San Patricio When Chipita Was Hanged, CALLER TIMES (Jan. 17, 2017), https://www.caller.com/story/news/columnists/murphy-givens/2017/01/17/black- day-san-patricio-when-chipita-hanged/96556038 [https://perma.cc/L96M-Y428]; Manuel Flores, Chipita Rodriguez’s Unjust Hanging Haunts Texas, CALLER TIMES (Oct. 16, 2017), https://www.caller.com/story/news/columnists/2017/10/16/chipita-rodriguezs-unjust- hanging-haunts-texas/769883001 [https://perma.cc/QSK9-T4DE]. 139. BAKER, supra note 128; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1.

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fact, of the fifty-four women (eighteen blacks and thirty-fix whites) executed in the last 117 years, none were Latinas.140

VI. THE MACHINERY OF AMERICAN JUSTICE: WHO LIVES, WHO DIES, WHO DECIDES?

For several decades it has been a settled matter among most scholars that death penalty decisions, including final outcomes like executions, are disproportionately more frequent for blacks and, as demonstrated during the last decade, Mexicans and other Latinos.141 But why is this the case? Death penalty advocates of all political stripes argue passionately, enthusiastically, and often aggressively that this disproportionality occurs because certain races unequally commit crimes for which the death penalty and executions apply. On February 20, 2013, for instance, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit reportedly remarked that certain “racial groups like African Americans and Hispanics are predisposed to crime,” and that they are “prone to commit acts of violence” and be involved in more “heinous” crimes than people of other races.142 Judge Jones charged that people of Mexican heritage rather sit on death row in the United States than be in prison in Mexico, and that it is an insult for the U.S. legal system to consider laws of Mexico and other countries when making judicial decisions.143 Apparently Judge Jones claimed that defendants’ arguments of “racism, innocence, arbitrariness, and violations of international law and treaties are just red herrings used by opponents of” capital punishment, “and that claims of mental retardation by capital defendants disgust her.”144 Appointed by President , Jones was one of the final candidates President George H.W. Bush considered nominating to the U.S. Supreme Court.145 Beliefs like those held by Judge Jones, however, lack critical historical foundation. American laws and the criminal justice system, from their initial foundation to the twenty-first century, have been established and largely

140. Women and the Death Penalty, supra note 129; Women Executed in the U.S. Since 1900, supra note 133; BAKER, supra note 128; URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 141. Álvarez & Urbina, supra note 2; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 142. “Pattern of Misconduct” Demands Full Investigation of Fifth Circuit Judge Edith Jones, ALLIANCE FOR JUST. (June 13, 2013), https://www.afj.org/press-room/press-releases/pattern- of-misconduct-demands-full-investigation-of-fifth-circuit-judge-edith-jones [https://perma.cc/GTG6-NL6C]. 143. Will Weissert, Federal Judge Accused of Making Racial Comments, STATESMAN (Sept. 27, 2018), https://www.statesman.com/NEWS/20130604/Federal-judge-accused-of-making-racial- comments [https://perma.cc/UJZ4-C9UE]. 144. Id. 145. Álvarez & Urbina, supra note 2, at 103.

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controlled by white males strategically laboring to oppress and dominate ethnic and racial minorities.146 For many decades, lynching, burnings, and hangings— which were common from the late eighteenth century to the mid-twentieth century—were strategically utilized not to prevent or reduce crime, but to brutally intimidate, oppress, and silence blacks and Mexicans,147 as recently documented by Urbina and Álvarez in Hispanics in the U.S. Criminal Justice System: Ethnicity, Ideology, and Social Control.148 Consequently, these mechanisms have effectively excluded ethnic and racial minorities from America’s main institutions, particularly the economic, political, and educational systems.149 Historically excluded from America’s main institutions, blacks and Mexicans have been, in a sense, socially, politically, and economically bankrupt, and thus comparatively poorer;150 they are therefore less able to obtain “dream- teams” to defend them when charged with a crime.151 Further, historical analysis unearths unyielding historical prejudice and discrimination against ethnic and racial minorities, particularly blacks and Mexicans152 which continue to influence contemporary economic, political, and educational differences.153 In the twenty-

146. For an analysis and discussion of the historical and contemporary dynamics of these influential forces, see ACUÑA, supra note 5; ALMAGUER, supra note 5; IMMIGRATION AND THE LAW, supra note 74; STEVEN W. BENDER, GREASERS AND GRINGOS: LATINOS, LAW, AND THE AMERICAN IMAGINATION (2003) [hereinafter BENDER, GREASERS AND GRINGOS]; STEVEN W. BENDER, MEA CULPA: LESSONS ON LAW AND REGRET FROM U.S. HISTORY (2015); DE LEÓN, supra note 4; ALFREDO MIRANDÉ, GRINGO JUSTICE (1987); MARTIN GUEVARA URBINA ET AL., ETHNIC REALITIES OF MEXICAN AMERICANS: FROM COLONIALISM TO 21ST CENTURY GLOBALIZATION (2014); URBINA & ÁLVAREZ, supra note 66; URBINA & ÁLVAREZ, supra note 2. 147. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2012); URBINA & ÁLVAREZ, supra note 66. 148. URBINA & ÁLVAREZ, supra note 2. 149. For analysis and documentation detailing historical mechanisms, see RODOLFO F. ACUÑA, SOMETIMES THERE IS NO OTHER SIDE: CHICANOS AND THE MYTH OF EQUALITY (1998); RODOLFO F. ACUÑA, THE MAKING OF CHICANA/O STUDIES: IN THE TRENCHES OF ACADEME (2011); IMMIGRATION AND THE LAW, supra note 74; LUPE S. SALINAS, U.S. LATINOS AND CRIMINAL INJUSTICE (2015); MARTIN GUEVARA URBINA & CLAUDIA RODRIGUEZ WRIGHT, LATINO ACCESS TO HIGHER EDUCATION: ETHNIC REALITIES AND NEW DIRECTIONS FOR THE TWENTY-FIRST CENTURY (2016). 150. URBINA & WRIGHT, supra note 147. 151. For an analysis of the implications and consequences of having limited resources or being indigent, see IMMIGRATION AND THE LAW, supra note 74; URBINA & ÁLVAREZ, supra note 66; URIBINA & ÁLVAREZ, supra note 2. 152. For groundbreaking and authoritative publications vividly documenting the ethnic and racial experience over the years, see ALEXANDER, supra note 145; NATALIA MOLINA, HOW RACE IS MADE IN AMERICA: IMMIGRATION CITIZENSHIP AND THE HISTORICAL POWER OF RACIAL SCRIPTS (2014); SALINAS, supra note 147; MARTIN GUEVARA URBINA ET AL., supra note 144; URBINA & ÁLVAREZ, supra note 79 (documenting the Latino, particularly the Mexican and Mexican American experience with police); URBINA & ÁLVAREZ, supra note 66; URBINA & ÁLVAREZ, supra note 2. 153. URBINA & WRIGHT, supra note 147.

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first century, so-called legal executions (and mass incarceration) have replaced burnings, lynching, and hangings with the unspoken mission of maintaining absolute power, dominance, and control.

VII. THE GLOBAL NATURE OF AMERICAN CRIMINAL LAW AND SOCIAL CONTROL

As documented by various scholars, Latinos have been the subject of identification, categorization, marginalization, and oppression by the same system that is supposed to represent and protect all people living in the United States—the American legal system.154 In fact, with ethnic minorities, particularly immigrants, now being targeted by law enforcement, Mexicans and other Latinos are the fastest growing population in the nation’s .155 More globally, American criminal laws are “selectively and strategically used to prosecute more race and ethnic minorities and impoverished defendants of all races and ethnicities, while, as statistics show, sending more Latinos to prison, keeping the Latino community in a slavery-type status, with the ultimate objective of silencing ethnic minorities.”156 In essence, Mexicans and other Latinos are now being perceived as a possible political, economic, cultural, and social threat to white America, and that perceived threat fuels racial animus and ethnic inequities in the justice system:157 [T]he racist and essentialist that permeate Americans are once again being manifested in the very fabric of the criminal justice system: American criminal law. At the end, as in colonial times, race and now ethnic minorities have become the grease that keeps the wheels of justice turning, and the “fuel” that keeps the criminal justice system

154. See Sofia Espinoza Álvarez, Latinos and the U.S. Criminal Justice System: The Road to Prison, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL 180 (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018). 155. MARTIN GUEVARA URBINA & SOFIA ESPINOZA ÁLVAREZ, ETHNICITY AND CRIMINAL JUSTICE IN THE ERA OF MASS INCARCERATION: A CRITICAL READER ON THE LATINO EXPERIENCE (2017); SENTENCING PROJECT, HISPANIC PRISONERS IN THE UNITED STATES (2003), https:// www.prisonpolicy.org/scans/sp/1051.pdf [https://perma.cc/5LZK-KQ24]; SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS (2018), https://www.sentencingproject.org/wp- content/uploads/2016/01/Trends-in-US-Corrections.pdf [https://perma.cc/3LSK- LUGL]; John Gramlich, The Gap Between the Number of Blacks and Whites in Prison is Shrinking, PEW RES. CTR. (April 30, 2019), https://www.pewresearch.org/fact- tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison [https://perma.cc/2KCH-P2CN]. 156. Álvarez, supra note 154, at 195. 157. For analysis and discussion documenting the ethnic realities of Mexicans and Mexican Americans since the early days in America, see URBINA, supra note 20; MARTIN GUEVARA URBINA ET AL., supra note 144.

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expanding, controlling, and silencing los de abajo, the ones at the bottom.158 And as Martin Luther King, Jr. once proclaimed, whites are complicit in this unjust system: I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Council or the Ku Klux Klanner, but the white moderate who is more devoted to “order” than to justice; who prefers a negative which is the absence of tension to a positive peace which is the presence of justice; who constantly says “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels he can set the timetable for another man’s freedom; who lives by the myth of time and who constantly advises the Negro to wait until a “more convenient season.”159 Moreover, in addition to the oppression created by the U.S. legal system, the educational system likewise continues to perpetuate the oppression of Latinos and blacks. Historically, education has been used to teach Latinos and blacks that their culture is inferior to the dominant white culture—a discriminatory lesson strategically used to maintain white dominance by socializing whites to believe they are superior while simultaneously internalizing a self-hatred within Latino and black students.160

VIII. CAPITAL PUNISHMENT AS SOCIAL CONTROL: PAST, PRESENT, AND HOPE FOR THE FUTURE

Understanding the role of ethnicity in capital punishment in its totality also requires acknowledgement of the transnational nature of crime and punishment,161 and, as noted herein, the price of American justice, as masterfully detailed by Jeffrey Reiman and Paul Leighton in The Rich Get Richer and the Poor Get Prison162 and Urbina and Peña in Crimmigration and Militarization: Policing

158. Álvarez, supra note 154, at 197. 159. Martin Luther King Jr., Letter From a Birmingham Jail (Apr. 16, 1963), https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html [https://perma.cc/3EDE-TR8L]. 160. Álvarez, supra note 154, at 197. 161. See Rick Ruddell & Martin G. Urbina, Minority Threat and Punishment: A Cross-National Analysis, 21 JUST. Q. 903 (2004); Rick Ruddell & Martin Guevara Urbina, Weak Nations, , and Punishment, 17 INT’L CRIM. JUST. REV. 84 (2007). 162. JEFFREY REIMAN & PAUL LEIGHTON, THE RICH GET RICHER AND THE POOR GET PRISON (11th ed. 2017).

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Borders in the Era of Social Control Profitability.163 To begin, while the presumed dangerousness of offenders has been a focal point of the discourse and has been used to justify social control movements like the war on drugs, antiterrorism, and anti-immigration, the actual dangerousness of targeted populations often goes unanalyzed—a fact which highlights the unspoken motives of social control policies164 which are vividly documented by Urbina and Álvarez in Neoliberalism, Criminal Justice, and Latinos: The Contours of Neoliberal Economic Thought and Policy on Criminalization.165 As for the influence of ethnicity on presumed dangerousness, from the advent of the war on drugs, Mexicans have been a prime target of politicians, government officials, law enforcement, and immigration hawks.166 In fact, around the time that people were talking about the introduction of crack cocaine into the ghetto, and thus the

163. Martin Guevara Urbina & Ilse Aglaé Peña, Crimmigration and Militarization: Policing Borders in the Era of Social Control Profitability, 13 SOC. COMPASS 1 (2018). 164. For specific documentation masterfully delineating social control movements and the intertwining forces governing the development and implication of criminal justice polices, see IMMIGRATION AND THE LAW, supra note 74; MICHAEL LYNCH, BIG PRISON, BIG DREAMS: CRIME AND THE FAILURE OF AMERICA’S PENAL SYSTEM (2007); REIMAN & LEIGHTON, supra note 160; SALINAS, supra note 147; Urbina & Álvarez, Neoliberalism, Criminal Justice, and Latinos: The Contours of Neoliberal Economic Thought and Policy on Criminalization, 14 LATINO STUD. 33 (2016) [hereinafter Urbina & Álvarez, Neoliberalism, Criminal Justice, and Latinos]; URBINA & ÁLVAREZ, supra note 66; HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018); Michael Welch, SCAPEGOATS OF SEPTEMBER 11TH: HATE CRIMES AND STATE CRIMES IN THE WAR ON TERROR (2006); Michael Welch, Immigration Lockdown Before and After 9/11: Ethnic Constructions and Their Consequences, in RACE, GENDER, AND PUNISHMENT: FROM COLONIALISM TO THE WAR ON TERROR (Mary Bosworth & Jeanne Flavin eds., 2007). 165. See Urbina & Álvarez, Neoliberalism, Criminal Justice, and Latinos, supra note 162. 166. See IMMIGRATION AND THE LAW, supra note 74, ch.2, 3, 6, 11; see generally BENDER, GREASERS AND GRINGOS, supra note 144; Luis Kong, Immigration, Racial Profiling, and White Privilege: Community-Based Challenges and Practices for Educators, ADULT EDUC. RES. CONF. PROC. 262 (2010); MOLINA, supra note 150; Carlos E. Posadas & Christina Medina, Immigration Lockdown: The Exclusion of Mexican Immigrants Through Legislation, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018); Mary Romero & Gabriella Sanchez, Critical Issues Facing Hispanic Defendants: From Detection to Arrest, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM: ETHNICITY, IDEOLOGY, AND SOCIAL CONTROL (Martin Guevara Urbina & Sofia Espinoza Álvarez eds., 2018); URBINA & ÁLVAREZ, supra note 79 (discussing in various chapters the targeting of Mexicans and Latinos in general by law enforcement)]; Urbina & Álvarez, Neoliberalism, Criminal Justice, and Latinos, supra note 162; URBINA & ÁLVAREZ, supra note 66; URBINA & ÁLVAREZ, supra note 2; Martin G. Urbina & Sara Kreitzer, The Practical Utility and Ramifications of RICO: Thirty-Two Years After its Implementation, 15 CRIM. JUST. POL’Y REV. 294 (2004) (providing an empirical study delineating how social control legislation has unfolded and its corresponding implications and consequences on minority communities).

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criminalization of African American ghettos in the mid-1980s, Zatz167 found that having a prior record, a fact many argued inherently suggested dangerousness, was “used primarily against Chicanos, perhaps because they are seen as specializing in drug trafficking from Mexico”—a perception that extends into the twenty-first century.168 Again, this perceived dangerousness simply served (and continues to serve) as rationalization and legitimization for expansion and control,169 as recently documented by Álvarez and Urbina in Immigration and the Law: Race, Citizenship, and Social Control.170 Today, Mexicans, and particularly Mexican immigrants, are targeted by law enforcement and politicians who make it possible to send thousands of Mexicans and other Latinos to prison, as reported in Ethnicity and Criminal Justice in the Era of Mass Incarceration: A Critical Reader on the Latino Experience.171 In 2015, Donald Trump, during his campaign for the presidency, went on a tirade about immigrants: “When Mexico sends its people, they’re not sending their best . . . they’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.”172 And in the later months of 2018, Trump once again used highly

167. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2012); Marjorie S. Zatz, Race, Ethnicity, and Determinate Sentencing: A New Dimension to an Old Controversy, 22 147, 165 (1984). 168. Zatz, supra note 167, at 165; see also IMMIGRATION AND THE LAW, supra note 74, at ch.9; Kong, supra note 164; SALINAS, supra note 147; Urbina & Kreitzer, supra note 166, at 301, 304 (documenting how “the global and aggressive effort to apprehend and prosecute individuals for drug-related offenses has shifted the focus of RICO from the prosecution of domestic drug offenders to that of foreign drug traffickers such as Mexicans and Colombians” and how “certain racial/ethnic groups (e.g., African Americans, Asians, Mexicans, and Puerto Ricans)” are being targeted for prosecution under RICO in the United States). 169. For documentation and analysis delineating the simultaneous interaction of these historical and contemporary forces shaping and reshaping crime, law, and society, see Robert J. Durán, Legitimated Oppression: Inner-City Mexican American Experiences With Police Gang Enforcement, 38 J. CONTEMP. ETHNOGRAPHY 143 (2009); Robert Durán, Over-Inclusive Gang Enforcement and Urban Resistance: A Comparison Between Two Cities, 36 SOC. JUST. 82 (2009); Robert Durán, The Core Ideals of the Mexican American Gang: Living the Presentation of Defiance, 34 AZTLAN: J. OF CHICANO STUD. 99 (2009); ROBERT J. DURÁN, GANG LIFE IN TWO CITIES: AN INSIDER’S JOURNEY (2013); Mary Romero, State Violence and the Social and Legal Construction of Latino Criminality: From El Bandido to Gang Member, 78 DENV. U. L. REV. 1081–118 (2001); Mary Romero, Crossing the Immigration and Race Border: A Critical Race Theory Approach to Immigration Studies, 11 CONTEMP. JUST. REV. 23 (2008); SALINAS, supra note 147; URBINA & ÁLVAREZ, supra note 66; URBINA & ÁLVAREZ, supra note 2. 170. See IMMIGRATION AND THE LAW, supra note 74. 171. For a discussion of how social control legislation, particularly drug and immigration laws have been designed and implemented by lawmakers, promoted by politicians, and enforced by law enforcement, see URBINA & ÁLVAREZ, supra note 66. 172. Jennifer Rubin, Here’s More Proof Trump’s ‘Crime Wave’ Is Fake, WASH. POST (Dec. 6, 2018), https://www.washingtonpost.com/opinions/2018/12/06/heres-more-proof-trumps-crime- wave-is-fake/?utm_term=.4baebba71481 [https://perma.cc/9Z8C-6M62].

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charged political rhetoric to demonize the migrant caravan traveling through Mexico on its way to the United States. Among his many anti-immigrants statements, on October 18, 2018, President Trump tweeted, “I am watching the Democrat Party led (because they want Open Borders and existing weak laws) assault on our country by Guatemala, Honduras and El Salvador, whose leaders are doing little to stop this large flow of people, INCLUDING MANY CRIMINALS, from entering Mexico to U.S.” On October 22, 2018, Trump tweeted, “Criminals and unknown Middle Easterners are mixed in. I have alerted Border Patrol and Military that this is a National Emergency. Must change laws!” And on October 31, 2018, Trump tweeted, “Our military is being mobilized at the Southern Border. Many more troops coming. We will NOT let these Caravans, which are also made up of some very bad thugs and gang members, into the U.S. Our Border is sacred, must come in legally. TURN AROUND!” Other critics report that in addition to the damage inflicted on Latinos by presumed dangerousness, Latinos, African Americans and poor whites often have limited financial resources to defend themselves in criminal proceedings,173 particularly in death penalty cases, which are extremely complicated, lengthy, and expensive.174 With limited resources, it is difficult for defendants to hire a private attorney, especially experienced and competent lawyers. Thus, some defendants must depend on public defenders or court-appointed attorneys who may not be highly skilled in death penalty cases.175 In fact, many public defenders have never tried a death penalty case, which means the great majority of defendants find themselves represented by attorneys who are actively learning the logistics of such cases throughout the representation. This inequitable provision of competent legal services calls into question the very foundation of American criminal law:

173. For a comprehensive analysis delineating the implications and consequences of limited resources, see ALEXANDER, supra note 145; REIMAN & LEIGHTON, supra note 160; SALINAS, supra note 147; Urbina, supra note 114; Martin Guevara Urbina & Ferris Roger Byxbe, Interacting Forces in the Judicial System: A Case Study in American Criminal Law, 1 INT’L J. OF HUMAN. & SOC. SCI. 141 (2011); URBINA & ÁLVAREZ, supra note 66 (delineating how “the mere dynamics of the judicial process indicate differential treatment in favor of those with community ties, resources, money, power, or prestige,” and how many Angelenos “had available resources for effective legal counsel ‘who knew how to work the system, but most Mexicans did not have adequate resources for competent legal representation’”); URBINA & ÁLVAREZ, supra note 2. 174. MATTHEW ROBINSON, DEATH NATION: THE EXPERTS EXPLAIN AMERICAN CAPITAL PUNISHMENT (2008); URBINA, LATINO OFFENDERS, supra note 1 (documenting how the great majority of Latino defendants are indigent, meaning they have limited resources and are often unable to hire effective defense on their behalf); Urbina, supra note 114. 175. Urbina, supra note 114.

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the principle of equality under the law.176 As such, there might be some truth to the saying, “If you do not have the capital, you will get the capital punishment.” Beyond individual offenders, we need to carefully analyze capital punishment’s (and punishment’s in general) collateral damage.177 To be sure, for nearly 250 years, scholars have debated capital punishment on various grounds, including , retributive and religious arguments, costs, administration, miscarriages of justice, arbitrariness, discrimination, and whether methods of execution are cruel and unusual. However, conspicuously missing from this voluminous literature is the human element: the grave impact capital punishment has on the lives of those who are involved, their communities, and society at large. As vividly documented by Michel Foucault in his authoritative book, Discipline & Punish: The Birth of the Prison, the transformation of the penal system has not been to create a more humanitarian prison system, to rehabilitate offenders, or even to punish them; it has instead been part of a continuing trajectory of subjection, oppression, power, and control of the human .178 Executions, considered by some to be the ultimate punishment, were simply moved from public squares to behind closed penitentiary doors, while lynchings, burnings, and hangings were strategically transformed into legal executions by the state, thereby redefining the language of blame and responsibility to allow the supposedly retributivist criminal justice approach to prevail. As legal scholar Michelle Alexander has argued, felons not only become second-class citizens for the rest of their lives, but the process and ramifications of criminality impact entire communities. The blame industry “massively overreaches: the stigma of criminality attaches to the convicted as a group and condemns them summarily.”179 Situating capital punishment within a broader context, the higher the rate of arrests, indictments, prosecutions, convictions, and imprisonment (along with executions) of a given population, the lower the probability of getting an education or securing employment.180 Of course, the political and social consequences of losing the right to vote are profound—in a sense, losing the ability to participate in the political process sends felons back to slavery.181 In a democratic society, the right to vote is considered an essential element of liberty and self-expression. Voting is the mechanism through which people engage with their communities and participate in the development and

176. See Urbina & Byxbe, supra note 171. 177. ROBERT M. BOHN, CAPITAL PUNISHMENT’S COLLATERAL DAMAGE (2013). 178. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., Vintage Books 2nd ed. 1995). 179. ERIN I. KELLY, THE LIMITS OF BLAME: RETHINKING PUNISHMENT AND RESPONSIBILITY 10 (2018). 180. Urbina & Wright, supra note 147. 181. ALEXANDER, supra note 145.

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transformation of institutions. Thus, disenfranchising racial and ethnic minorities has historically been a strategic and effective legal mechanism for oppressing and silencing minorities. State laws disenfranchising individuals convicted of a proliferated during the 1860s and 1870s, particularly in southern states where large populations of blacks lived. Lawmakers were explicit about their intentions to suppress the black vote in order to control the black population. For instance, in November 1865, three weeks before the official ratification of the Thirteenth Amendment (which abolished slavery), a headline on the front page of the New Tribune read, “South Carolina Re-establishing Slavery.”182 A Confederate veteran explained to Chicago Tribune that the new system would “be called ‘involuntary servitude for the punishment of crime,’ but it won’t differ much from slavery.” In its totality, capital punishment is more about retribution, vindictiveness, power, and control than serving justice. Capital punishment is part of the social control apparatus, creating and instilling an illusion of justice while legitimizing oppression and reinforcing historical structural hierarchies to maintain a on the legal, political, and economic systems. As expressed by Sofia Espinoza Álvarez, Latinos themselves have often accepted the inequities that plague the American legal system precisely because the system socializes them to do so: [W]ith a life-long history of suppression, manipulation, marginalization, neglect, and isolation, Latinos are enslaved in a system that has become self-governing because Americans, including ethnic minorities, have been socialized and psychologically indoctrinated, vis- à-vis the educational system, media, politicians, and criminal justice officials, to view and treat the American legal system as normal, without truly seeing the profound ramifications of such state of normalization, which includes participation in their own victimization, criminalization, imprisonment, and, ultimately, self-destruction.

A. Symbolic Justice

In exploring the role of race and ethnicity in crime and punishment, including executions, other scholars question whether the expansion, power, and control thesis is also designed to be a powerful symbol of exclusion. Arguably, executions serve as a symbol of insult not only toward executed Mexicans, but to

182. Garrett Epps, The ‘Slave Power’ Behind Florida’s Felon Disenfranchisement, ATLANTIC (Feb. 4, 2018), https://www.theatlantic.com/politics/archive/2018/02/the-slave-power- behind--felon-disenfranchisement/552269 [https://perma.cc/AS6Y-VM3F].

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all Mejicanos of the world, especially when Mexicans are executed close to major Mexican holidays, or, as in the case of Jessie Gutiérrez, actually executed on September 16, Mexico’s Independence Day (see Table 1). In fact, to some observers, the execution of a Mexican is not only an act against the individual, but is carried out against Mexico, its people, its culture, and Mexico’s governmental policy that forbids executions. In effect, Mexico abolished the death penalty in 1929 and is the most populous country to have done so.183 According to anthropologist Tony Zavaleta, whichever way one puts it, the end result is clear: When executions take place, especially when race/ethnicity is influential in one having received the punishment or the execution is done in violation of international law, the state is “shedding Mexican blood on American soil . . . [and it is] like slitting the throat of a sacrificial lamb.”184

B. Capital Punishment in America: Underneath It All

Finally, probably just as influential as the influence of race, ethnicity, gender, or economics, lies what could possibly be underneath it all—the thing we would rather not hear or write about: violence. To begin, no longer wear sheets and hoods to hide their identities. Instead, they hide behind a curtain, with three prison guards administering the lethal chemicals comprised of sodium thiopental, , and potassium chloride to stop the heart.185 One example of a particularly brutal execution is the April 1998 Texas execution of Joseph Cannon, white, who was strapped down to a gurney awaiting death when the executioners released the chemicals with such force that Cannon’s vein blew and formed a hematoma, requiring fifteen minutes before another vein could be found.186 Witnessing the savage spectacle, his mother reportedly collapsed. In another Texas execution, the parents of inmate Pedro Cruz Muñiz, Mexican, were told that they would be allowed in the viewing room to see Muñiz

183. Olivero, supra note 87. 184. Halperin, supra note 72. 185. Ferris Byxbe & Martin Guevara Urbina, The New Face of Capital Punishment: Nitrogen Asphyxiation, 2017 LAE J. 45 (2017); Lethal Injection Drugs, https:// www.hrw.org/reports/2006/us0406/4.htm [https://perma.cc/3GMF-S9RT]. 186. Some Lethal Injection Problems in US Executions, (Dec. 9, 2016), https://apnews.com/707a1f2d58b24ab880160d866947276 [https://perma.cc/833U-GD8Y]; Botched Executions, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/some- examples-post-furman-botched-executions [https://perma.cc/TL8L-AXPR]; THE ASSOCIATED PRESS, Some Lethal Injection Problems in US Executions, Dec. 9, 2016, https://apnews.com/707a1f2d58b24ab880160d8669471276.

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die by lethal injection.187 Upon noticing that Muñiz’s family was of mixed race and ethnicity—apparently Mexican, black, and a red-haired, white-skinned person—the rules suddenly changed, and the family members were told that they would have to wait out in the street while Muñiz was being killed, indicating that the influence of race and ethnicity in Texas extends to family members of inmates. When Muñiz’s death was announced, Texas Department of Corrections guards who were congregating in the streets were reported to be laughing boisterously within sight of his family, showing gross disrespect for human dignity. At a more theoretical level, in Capital Punishment and Latino Offenders and in Capital Punishment in America: Race and the Death Penalty Over Time, Urbina188 argues that the historical demon of discrimination is not only deeply rooted in American history and culture, but that it is in the inner core of the American psyche. Once capital punishment in America is analyzed in its totality over time, Urbina189 bluntly states: Capital punishment in the United States persists mostly for historical, political, ideological, religious, economical, and social reasons having little to do with safety or practicality. Fundamentally, . . . capital punishment [is] one of the biggest demons that the world has ever invented. Now, what is the driving force behind this demon? The most powerful single driving force is indifference. Executions are brutal, vicious, expensive, and irreversible, like an everlasting struggle against a cancer that continues to worsen. But despite being the harshest criminal sanction, capital punishment has been promoted by promissory political language which is designed to make lies sound truthful, government action logical and honorable, murder by the state legal (supported by notions of legitimacy and justice) and therefore immune from moral attack, and, to a fragile, feared, and misinformed society, capital punishment seems like a trapping of global power and solidarity. The executioners are themselves part of the legal system, the laws of which are assumed to be unalterable, like the word of God. The executioners serve the state, which alone has the power to absolve them from this elusive demon of killing someone. Yet, they do not even know why they are executing. But, of course, they are not supposed to. The executioners accept the law almost as they accept the weather, which is, of course, unpredictable by

187. Man Executed After More than 20 Years on Death Row, NEWS & REC. (May 19, 1998), https://www.greensboro.com/man-executed-after-more-than-years-on-death- row/article_b455806a-55be-57fb-8685-fe7a2461d8ec.html [https://perma.cc/D77U-W27L]. 188. URBINA, LATINO OFFENDERS, supra note 1; URBINA, CAPITAL PUNISHMENT IN AMERICA, supra note 1. 189. URBINA, FEMALE OFFENDERS, supra note 41, at 179.

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nature. When questioned about the morality of capital punishment, the executioners are likely to reply by citing respect for constitutionalism and the legality of the punishment. No one would support capital punishment if one were not psychologically and emotionally driven by some powerful systemic force whom he or she can neither resist nor understand its truth and reality. We must challenge the prevailing retributivist criminal justice approach that utilizes heinous crimes to rationalize the criminalization and imprisonment of large segments of society. To be sure, heinous crimes, like homicide, which carry the possibility of execution, are the “paradigm criminal offense for the blaming enterprise,”190 but this paradigm is ultimately extended to all offenses. It is time to revise the misalignment between criminal law, morality, and justice. For instance, the influence of mental illness, immaturity, poverty, or racial injustice has “little to no relevance to findings of criminal guilt.”191 Critically, though, courts across the country have excluded racial and ethnic discrimination as a basis for challenging criminal convictions or sentencing, despite discrimination being so common in capital punishment (and punishment in general and in everyday life), as exposed by multiple empirical studies.192 Consider, for example, the case of African Americans, where expectations of criminality are highly intensified by the historical stigma of racial subordination, the legacy 250 years of slavery, 100 years of Jim Crow laws, and, more recently drug laws.193 Similarly, the normalization of aggressive law enforcement tactics that target Latinos, particularly Mexicans, and the explosion of the ethnic prison population during the last few decades reinforce racialized expectations about the identity of criminals and the need for social control. In a recent article, Urbina and Peña assert that the powerful stigma of color (or ethnicity) and criminality interact to achieve a consequential form of social alienation, marginalization, and exclusion: [W]hile sometimes critics aggressively argue that ethnicity/race is not a significant factor (or even a factor) in immigration laws, border enforcement, criminalization, incarceration, or discourse, ethnic and racial minorities are already “wearing” a racial uniform—skin color— which itself has become the mark of illegality; ultimately, illegality is equated with Brownness and Brownness is equated with illegality. In essence, as one of the biggest “clientele” of local, state, and federal agents, immigrants are “guilty” of being undocumented, they are

190. KELLY, supra note 177, at 9. 191. Id. at 8. 192. Id. at 10. 193. ALEXANDER, supra note 145.

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“guilty” of being Brown people, they are “guilty” of being Mexican immigrants, and, in a sense, they are “guilty” for simply existing or having been born.194 Consider, for instance, Trump’s reactionary policy proposals, including his proposed wall, which strategically exploit stereotypes that demonize immigrants and vulnerable segments of society. As for the death penalty, Trump’s views on capital punishment have long been clear, as he has repeatedly supported capital punishment for crimes such as or the killing of police officers. For example, Trump released full-page advertisements in New York newspapers in 1989 which called for the execution of the “Central Park Five,” in a notorious case where black and Latino teenagers were accused of assaulting and raping a jogger, but were exonerated years later.195 And after the mass shooting at a Pittsburgh synagogue in October 2018, Trump passionately proclaimed that “we have to bring back the death penalty,” which, in fact, existed at the time and still exists federally and in 31 states.196 In March 2018, addressing the opioids crisis, he called for the death penalty for drug dealers, which would gravely target and impact blacks and Latinos.197 The continuation of an ideology of oppression and the imposition of a brutal system of punishment to strategically maintain power and control over certain segments of society is a moral abuse that must be addressed. And yet, in this charged political moment, Trump has nominated two highly conservative justices to the U.S. Supreme Court, significantly shifting its ideological balance to the right; this right-leaning ideology will continue to govern the legal contours of capital punishment in the United States.198 Clearly, it is time for a transformation in public thinking about criminal justice reform.

194. Urbina & Peña, supra note 161, at 11. 195. Jeva Lange, Donald Trump’s 30-Year Crusade Against the Central Park Five, WEEK (Oct. 7, 2016), https://theweek.com/articles/653840/donald-trumps-30year-crusade-against-central- park-five [https://perma.cc/2TSS-98GQ]. 196. Eugene Kiely, Trump’s Call to ‘Bring Back the Death Penalty’, FACTCHECK.ORG (Oct. 31, 2018), https://www.factcheck.org/2018/10/trumps-call-to-bring-back-the-death-penalty [https://perma.cc/9ACL-DLHW]. 197. Roberta Rampton, A U.S. Opioid Crisis Grows, Trump Calls for Death Penalty for Dealers, REUTERS (March 19, 2018), https://www.reuters.com/article/us-usa-trump-opioids/as-u-s- opioid-crisis-grows-trump-calls-for-death-penalty-for-dealers-idUSKBN1GV2IC [https://perma.cc/4LGW-UX8C]. 198. See Jacqueline Thomsen, Supreme Court Sees More Serious Divide Open on Death Penalty, HILL (Apr. 23, 2019, 6:00 AM), https://thehill.com/regulation/court-battles/440089-supreme- court-sees-more-serious-divide-open-on-death-penalty [https://perma.cc/NK9K-SVRG].

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CONCLUSION

The evidence shows that 103 of the 127 Latinos executed from 1977 to 2018 were of Mexican heritage, with 107 of the 127 Latino executions taking place in Texas. Based on the results, it appears that while Mexicans have been classified as white as a result of treatymaking compromises in In re Rodríguez (1897), final outcomes for Latinos and whites are quite different, indicating that race and ethnicity, or, more precisely, racism, continue to play a role in crime and punishment. In the case of capital punishment, it seems that Mexicans and Latinos in general have received the worst of both worlds: punishment without due process (which calls into question the legitimacy of American criminal laws) and inequality under the law (which becomes more obvious when Mexican nationals are executed in the United States while Americans are expected to get full protection in other countries under Article 36). On numerous occasions, the Mexican government’s call for fair trials, and even formal requests that “the sentences of . . . Mexicans condemned to death in the United States [should] be commuted to ,” were of no avail.199 Notably, for Mexicans on death row, protestations by the Mexican government, organizations, groups, and other individuals do not seem to be entirely shaped by the release of one Mexican on death row or the execution of another. According to Tony Garza, former Texas Secretary of State, “ . . . from the sense of the left and right, Mexico was being scapegoated”200—a notion supported by Trump’s aggressive and vindictive anti-Mexico political rhetoric, including slogans like “build the wall” and his consistent characterization of Mexicans as illegal, criminal, and dangerous—in his words, “bad hombres.”201 During the thirty-five-day government shutdown (the longest shutdown in U.S. history) in December 2018 and January 2019, Trump equated undocumented immigrants with pedophiles in a passionate and aggressive attempt to justify the need (or, more precisely, funding need) for his proposed wall on the Mexico

199. Mexican Officials Visit San Quentin Death Row, SAN FRANCISCO CHRON., August 7, 1993, at B4. 200. Halperin, supra note 72. 201. Dara Lind, No, Seriously, the Trump Administration Is Building a Wall, VOX (Mar. 13, 2018), https://www.vox.com/policy-and-politics/2018/3/13/17107034/trump-border-wall-mexico [https://perma.cc/ZHA7-KX9M]; David Agren, ‘Bad Hombres’: Reports Claim Trump Spoke of Sending Troops to Mexico, GUARDIAN (Feb. 1, 2017), https://www.theguardian.com/us- news/2017/feb/02/bad-hombres-reports-claim-trump-threatened-to-send-troops-to-mexico [https://perma.cc/D76B-9ZA7]. To bust his voting base, Trump frequently expressed his slogans, like “build the wall,” in television appearances and posted on his Twitter account.

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border.202 Although we could say that the war between Mexico and the United States ended 171 years ago, the long legacy of hate and vindictiveness remains, particularly under the Trump administration. In essence, Mexicans and other Latinos are now being perceived as a political, economic, cultural, and social threat to the white power structure—the white America which has been in total control for over 500 years. Internationally, with the newly defined borders which accompany the globalization of crime and punishment, “it is easier to rationalize the harsh treatment of persons who are essentially ‘out-siders.’”203 Nieling and Urbina comment on this perceived threat: [B]ecause the United States considers itself a ‘moral’ and ‘law-and- order’ society, the U.S. has a phobia of the outsider, the different, and the stranger. As an institutionalized state of feeling and thinking, such phobia has manifested itself into ignorance, with in turn has resulted in viciousness and vindictiveness. Likewise, fear of those who threaten our interests or the status quo, has manifested itself into low levels of tolerance.204 In sum, the data show that the experiences of Mexicans (and Latinos in general) on death row differ from the experiences of blacks and whites. Ultimately, then, the central objective of this Article is to provide information that will facilitate the development of data sets that will eventually enable us to quantitatively test the effects of race (blacks, whites, and other racial groups) and ethnicity (Mexicans and other ethnic groups) in capital punishment. More globally, Mexicans and the various other ethnic groups within the Latino community constitute a separate group, distinct from blacks and whites, and thus must be treated accordingly in academic research, publication, and dialogue. Ultimately, to best promote equality, universal justice, and human dignity, the American judicial system, government officials, and society as a whole must be more inclusive of Latinos and other specific ethnic groups when analyzing the effects of race and ethnicity on capital punishment.

202. Chris Stevenson, Trump Equates Illegal Immigrants with Paedophiles in Attempt to Justify Need for Border Wall, INDEPENDENT (Jan. 13, 2019) https://www.independent.co.uk/ news/world//us-politics/trump-illegal-immigrants-paedophiles-border-wall- shutdown-tweets-a8726046.html [https://perma.cc/R72X-XQAM]. 203. IMMIGRATION AND THE LAW, supra note 74, at XIX, 30, 287. 204. Sara Nieling & Martin Guevara Urbina, Epilogue: Thoughts for the Future, in A COMPREHENSIVE STUDY OF FEMALE OFFENDERS: LIFE BEFORE, DURING, AND AFTER INCARCERATION 233 (2008).

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APPENDIX

Table 1: Latinos Executed in the United States, 1977–2018

Number, Years From Date of State of Ethnicity of Method of Foreign # Name Age Race/Ethnicity, Sentence to Execution Execution Defendant Execution National and Sex of Victim Execution May 15, Lethal 1. Jesse de la Rosa 24 Texas Mexican 1 Asian male No 1985 Injection Henry Martinez Lethal 2. 43 July 9, 1985 Texas Mexican 1 white male No Porter Injection Lethal 3. Rudy Esquivel 50 June 9, 1986 Texas Mexican 1 white male No Injection December Lethal 4. Richard Andrade 25 Texas Mexican 1 Latina (female) No 18, 1986 Injection January 30, Lethal 5. Ramon Hernandez 44 Texas Mexican 1 Latino (male) No 1987 Injection March 4, Lethal 6. Elisio Moreno 27 Texas Mexican 1 white No 1987 Injection , Lethal 7. Carlos de Luna 27 Texas Mexican 1 Latina (female) No 1989 Injection May 23, Lethal 8. Ignacio Cuevas 59 Texas Mexican 2 white males No 1991 Injection January 22, Lethal 9. Joe Angel Cordova 39 Texas Mexican 1 white male No 1992 Injection , Lethal 10. Jesus Romero 27 Texas Mexican 1 Latina (female) No 1992 Injection Doing Justice, or an Illusion of Justice 1807

March 23, Lethal 11. Carlos Santana 40 Texas Dominican 1 Latino (male) Yes 1993 Injection Ramon Montoya March 25, Lethal 12. 38 Texas Mexican 1 white male Yes Facundo 1993 Injection Leonel Torres May 12, Lethal 13. 44 Texas Mexican 1 Latino (male) No Herrera 1993 Injection August 24, Lethal 14. 26 Texas Mexican 1 Latino (male) No 1993 Injection September Lethal 15. Jessie Gutierrez 29 Texas Mexican 1 white female No 16, 1994 Injection January 17, Lethal 16. Mario S. Marquez 36 Texas Mexican 1 Latina (female) No 1995 Injection December Lethal 17. Esequel Banda 31 Texas Mexican 1 white female No 11, 1995 Injection August 22, Lethal 18. Luis Mata 45 Arizona Mexican 1 white female No 1996 Injection September Lethal 19. Joe Gonzales 36 Texas Mexican 1 white male No 18, 1996 Injection January 8, Lethal 20. Paul Ruiz 49 Arkansas Unknown 2 white males No 1997 Injection March 25, 21. 39 Florida Cuban 1 black female Electrocution Yes 1997 Lethal 22. Davis Losada 32 June 4, 1997 Texas Mexican 1 Latina (female) No Injection Irineo Tristan June 18, Lethal 23. 30 Texas Mexican 1 white male Yes Montoya 1997 Injection Mario Benjamin September Lethal 24. 25 Virginia Mexican 1 white male Yes Murphy 17, 1997 Injection 1808 66 UCLA L. REV. 1762 (2019)

January 21, 1 Latina (female), Lethal 25. Jose Jesus Ceja 42 Arizona Mexican No 1998 1 white male Injection Angel Francisco April 14, Lethal 26. 32 Virginia Paraguayan 1 white female Yes Breard 1998 Injection April 22, Lethal 27. Jose Villafuerte 45 Arizona Honduran 1 Latina (female) Yes 1998 Injection May 19, Lethal 28. Pedro Cruz Muniz 41 Texas Mexican 1 white female No 1998 Injection June 26, 1 white male, 3 Lethal 29. Leopoldo Narvaiz 30 Texas Mexican No 1998 white females Injection Genaro Ruiz August 26, Lethal 30. 43 Texas Mexican 1 black male No Camacho 1998 Injection September Lethal 31. David Castillo 34 Texas Mexican 1 Latino (male) No 23, 1998 Injection October 1, 1 black male, 1 Lethal 32. Javier Cruz 41 Texas Mexican No 1998 white female Injection October 5, Lethal 33. Roderick Abeyta* 44 Nevada Unknown 1 white female No 1998 Injection January 26, Lethal 34. Martin Vega 52 Texas Mexican 1 white male No 1999 Injection February 10, Lethal 35. George Cordova 39 Texas Mexican 1 Latino (male) No 1999 Injection February 16, 2 white males, 1 Lethal 36. Andrew Cantu 31 Texas Mexican No 1999 white female Injection Lethal 37. Jose De La Cruz 31 , 1999 Texas Mexican 1 Latino (male) No Injection August 18, Lethal 38. Joseph Trevino 37 Texas Mexican 1 white female No 1999 Injection Doing Justice, or an Illusion of Justice 1809

October 27, Lethal 39. Ignacio Ortiz 57 Arizona Mexican 1 Latina (female) No 1999 Injection November Lethal 40. Jose Gutierrez 39 Texas Mexican 1 white female No 18, 1999 Injection June 15, Lethal 41. Paul Selso Nuncio 31 Texas Mexican 1 white female No 2000 Injection June 29, Lethal 42. Jesse San Miguel 29 Texas Mexican 1 white male No 2000 Injection July 26, Lethal 43. Juan Soria 33 Texas Mexican 1 white male No 2000 Injection August 9, Lethal 44. Oliver Cruz 33 Texas Mexican 1 white female No 2000 Injection November Lethal 45. Miguel Flores 31 Texas Mexican 1 white female Yes 9, 2000 Injection December 7, Lethal 46. Edward Castro 50 Florida Mexican 1 white male No 2000 Injection Adolph , Lethal 47. 50 Texas Mexican 1 Latina (female) No Hernandez 2001 Injection June 19, Lethal 48. Juan Raul Garza 44 Federal Mexican 3 Latinos (male) No 2001 Injection April 10, Lethal 49. Jose Santellan 40 Texas Mexican 1 Latina (female) No 2002 Injection Rodolfo April 30, Lethal 50. 52 Texas Mexican 1 Latino (male) No Hernandez 2002 Injection May 22, Lethal 51. Johnny Martinez 29 Texas Mexican 1 white male No 2002 Injection Javier Suarez August 14, Lethal 52. 33 Texas Mexican 1 Latino (male) Yes Medina 2002 Injection 1810 66 UCLA L. REV. 1762 (2019)

Rigoberto October 2, Lethal 53. 43 Florida Cuban 1 Latina (female) Yes Sanchez-Velasco 2002 Injection December 4, 1 Latino (male), 1 Lethal 54. Leonard Rojas 52 Texas Mexican No 2002 white female Injection January 15, Lethal 55. John Baltazar 30 Texas Mexican 1 Latina (female) No 2003 Injection John William February 4, Lethal 56. 42 Texas Unknown 1 Latina (female) Yes Elliott* 2003 Injection April 22, Lethal 57. Juan Chávez 34 Texas Mexican 1 Latino (male) No 2003 Injection September Lethal 58. Andrew Flores 32 Texas Mexican 1 Latino (male) No 21, 2004 Injection October 6, Lethal 59. Peter Miniel* 42 Texas Unknown 1 white male No 2004 Injection November Lethal 60. Anthony Fuentes 30 Texas Mexican 1 white male No 17, 2004 Injection Alexander Lethal 61. 28 June 7, 2005 Texas Mexican 1 white female No Martinez Injection David Aaron July 28, Lethal 62. 29 Texas Mexican 1 white female No Martinez 2005 Injection October 20, Lethal 63. Luis Ramirez 42 Texas Mexican 1 Latinos (male) No 2005 Injection January 31, Lethal 64. Jaime Elizalde 34 Texas Mexican 2 Latinos (male) No 2006 Injection March 22, Lethal 65. Robert Salazar Jr. 27 Texas Mexican 1 Latina (female) No 2006 Injection Jackie Barron Lethal 66. 40 May 4, 2006 Texas Unknown 1 white female No Wilson* Injection Doing Justice, or an Illusion of Justice 1811

May 24, 1 Latino (male), 1 Lethal 67. Jesus Aguilar 42 Texas Mexican No 2006 Latina (female) Injection Angel Maturino June27, Lethal 68. 46 Texas Mexican 1 Latina (female) Yes Resendiz 2006 Injection August 17, Lethal 69. Richard Hinojosa 45 Texas Mexican 1 white female No 2006 Injection December Puerto Lethal 70. Angel Diaz 55 Florida 1 white male Yes 13, 2006 Rican Injection January 10, 1 Latino (male), 1 Lethal 71. Carlos Granados 36 Texas Mexican No 2007 Latina (female) Injection March 6, Lethal 72. Robert Perez 48 Texas Mexican 2 Latinos (male) No 2007 Injection March 28, Lethal 73. Vincent Gutierrez 28 Texas Mexican 1 Latino (male) No 2007 Injection June 20, Lethal 74. Lionell Rodriguez 36 Texas Mexican 1 Asian female No 2007 Injection June 21, Lethal 75. Gilberto Reyes 33 Texas Mexican 1 Latina (female) No 2007 Injection August 29, Lethal 76. John Joe Amador 32 Texas Mexican 1 white male No 2007 Injection Jose Ernesto August 5, Lethal 77. 33 Texas Mexican 2 white females Yes Medellin 2008 Injection August 7, Lethal 78. Heliberto Chi 29 Texas Honduran 1 white male Yes 2008 Injection August 14, Lethal 79. Michael Rodriguez 45 Texas Mexican 1 white male No 2008 Injection January 28, 2 Latinos (male), Lethal 80. Virgil Martinez 41 Texas Mexican No 2009 2 Latinas (female) Injection 1812 66 UCLA L. REV. 1762 (2019)

January 29, Lethal 81. Ricardo Ortiz 46 Texas Mexican 1 Latino (male) No 2009 Injection February 4, 1 Latino (male), 1 Lethal 82. David Martinez 36 Texas Mexican No 2009 Latina (female) Injection James Edgard March 10, Puerto 1 white male, 1 Lethal 83. 34 Texas No Martinez 2009 Rican white female Injection Luis Cervantes March 11, Lethal 84. 38 Texas Mexican 1 Latina (female) No Salazar 2009 Injection April 15, Lethal 85. Michael Rosales 35 Texas Mexican 1 black female No 2009 Injection November Lethal 86. Yosvanis Valle 34 Texas Cuban 1 Latino (male) Yes 10, 2009 Injection March 2, 1 Latino (male), 1 Lethal 87. Michael Sigala 32 Texas Mexican No 2010 Latina (female) Injection Samuel April 27, Lethal 88. 40 Texas Mexican 1 Latino (male) No Bustamante 2010 Injection May 19, Lethal 89. Rogelio Cannady 37 Texas Mexican 1 Latina (female) No 2010 Injection May 25, Lethal 90. John Alba 54 Texas Mexican 1 Latina (female) No 2010 Injection August 17, Lethal 91. Peter Cantu 35 Texas Mexican 2 white females No 2010 Injection Lethal 92. Humberto Leal 38 July 7, 2011 Texas Mexican 1 Latina (female) Yes Injection August 10, Lethal 93. Martin Robles 33 Texas Mexican 2 Latinos (male) No 2011 Injection September Lethal 94. Manuel Valle 61 Florida Cuban 1 Latino (male) Yes 28, 2011 Injection Doing Justice, or an Illusion of Justice 1813

Frank Martinez October 27, Lethal 95. 39 Texas Mexican 1 Latino (male) No Garcia 2011 Injection Guadalupe November Lethal 96. 46 Texas Mexican 1 Latina (female) No Esparza 16, 2011 Injection Rodrigo January 26, Lethal 97. 39 Texas Mexican 1 white female 10 No Hernandez 2012 Injection February 29, Lethal 98. George Rivas 41 Texas Mexican 1 white male 11 No 2012 Injection Jesse Joe March 28, Lethal 99. 47 Texas Mexican 1 Latino (male) 10 No Hernandez 2012 Injection June 27, Lethal 100. Samuel López 49 Arizona Mexican 1 Latina (female) 25 No 2012 Injection Ramon Torres November Lethal 101. 41 Texas Unknown 1 Latina (female) 10 No Hernandez 14, 2012 Injection December 4, 1 Latino (male), 1 Lethal 102. George Ochoa 38 Oklahoma Mexican 16 No 2012 Latina (female) Injection 5 Latinos (male), December 3 Latinas Lethal 103. Manuel Pardo 56 Florida Cuban 24 No 11, 2012 (female), 1 white Injection male July 16, Lethal 104. John Quintanilla 36 Texas Mexican 1 white male 9 No 2013 Injection September Lethal 105. Robert Garza 30 Texas Mexican 4 Latinas (female) 10 No 19, 2013 Injection Arturo Eleazar September Lethal 106. 37 Texas Mexican 1 white male 13 No Diaz 26, 2013 Injection January 22, Lethal 107. Edgar Tamayo 46 Texas Mexican 1 white male 20 Yes 2014 Injection 1814 66 UCLA L. REV. 1762 (2019)

February 2, Lethal 108. Juan Chávez 46 Florida Cuban 1 white male 16 Yes 2014 Injection April 9, Lethal 109. Ramiro Hernandez 44 Texas Mexican 1 white male 14 Yes 2014 Injection April 16, 1 Latino (male), 2 Lethal 110. Jose Villegas 39 Texas Mexican 12 No 2014 Latinas (female) Injection 1 Latino (male), 1 October 28, Lethal 111. Miguel Paredes 32 Texas Mexican Latina (female), 1 14 Yes 2014 Injection white male 1 Latino (male), 1 January 21, Lethal 112. Arnold Prieto Jr. 41 Texas Mexican Latina (female), 1 20 No 2015 Injection white female March 11, Lethal 113. Manuel Vasquez 46 Texas Mexican 1 Latina (female) 16 No 2015 Injection April 15, Lethal 114. Manuel Garza Jr. 34 Texas Mexican 1 Latino (male) 13 No 2015 Injection August 12, Lethal 115. Daniel Lee López 27 Texas Salvadoran 1 white male 5 No 2015 Injection Alfredo Rolando October 1, 1 white male, 1 Lethal 116. 49 Virginia Salvadoran 4 Yes Prieto 2015 white female Injection Juan Martin October 6, Lethal 117. 35 Texas Salvadoran 1 Latino (male) 15 No Garcia 2015 Injection October 14, Lethal 118. Licho Escamilla 33 Texas Mexican 1 white male 12 No 2015 Injection Gustavo Julian February 16, Lethal 119. 43 Texas Unknown 1 white male 24 No Garcia 2016 Injection Pablo Lucio April 6, Lethal 120. 38 Texas Guatemalan 1 Latino (male) 17 No Vasquez 2016 Injection Doing Justice, or an Illusion of Justice 1815

March 7, Lethal 121. Rolando Ruiz 44 Texas Mexican 1 Latina (female) 21 No 2017 Injection Ruben Ramirez November Lethal 122. 47 Texas Mexican 1 Latina (female) 19 Yes Cardenas 8, 2017 Injection Rosendo March 27, Lethal 123. 38 Texas Mexican 1 white female 9 No Rodriguez III 2018 Injection May 16, Lethal 124. Juan Castillo 37 Texas Mexican 1 Latino (male) 12 No 2018 Injection Roberto Moreno Novembe 1 Latino (male), 2 Lethal 125. 64 Texas Mexican 25 Yes Ramos 14, 2018 Latinas (female) Injection Joseph December 4, Lethal 126. Christopher 47 Texas Mexican 1 white male 15 No 2018 Injection Garcia December Puerto Lethal 127. Jose Jimenez 55 Florida 1 white female 24 No 13, 2018 Rican Injection *Classified as unknown because it was not possible to trace them to Latino heritage, or trace their exact ethnicity.

1816 66 UCLA L. REV. 1762 (2019)

Table 2: Latino Executions by Ethnicity

Latino Execution by Victim’s Foreign Ethnicity of Defendant State and Race/Ethnicity Nationals Jurisdiction Mexican: 103 Texas (107) Latino: 95 25 Cuban: 6 Florida (8) White: 72 Puerto Rican: 3 Arizona (5) Black: 4 Salvadoran 3 Virginia (3) Asian: 2 Honduran: 2 Arkansas (1) Dominican: 1 Nevada (1) Guatemalan: 1 Oklahoma (1) Paraguayan: 1

Unknown: 7 Federal (1)