Supreme Court asked to look at racial bias in death penalty

A decade of Supreme Court reforms has failed to eliminate racial discrimination as a factor in who gets the death penalty in the United States. According to social scientists, law professors, and some capital-punishment experts, racial prejudice continues to taint the criminal-justice system through which convicted murderers are sentenced.

These experts say it is not the race of a murderer, but the race of a murderer's victim, that plays a determinative role in who receives the death penalty in some states.

``Black defendants whose victims are white are receiving persistently more death sentences than white defendants or those whose victims are black,'' says Jack Boger of the NAACP Legal Defense and Educational Fund. ``Race is playing an unchecked role in capital sentencing,'' he says.

Of the 47 inmates executed for murder since capital punishment was reinstated by the Supreme Court in 1976, 28 were white, 17 black, and 2 Hispanic. Of their victims, 43 were white and 5 were black.

The Supreme Court is expected to decide next month whether it will hear a Georgia case in which a black death-row inmate is arguing that the state is more likely to execute blacks who kill whites than to execute other convicted murderers whose victims were black. In this case, 36-year-old Warren McCleskey was convicted of killing a white policeman during a 1978 robbery at an Atlanta furniture store.

Opponents of capital punishment see the case as one of the last opportunities to argue before the nation's highest court that executions are unconstitutional because they are carried out in a discriminatory and inconsistent manner.

Racial discrimination was one of the issues mentioned specifically by the Supreme Court in 1972 when it struck down capital punishment as unconstitutional. Four years later, the court reinstated capital punishment in a series of decisions establishing safeguards designed to eliminate racial discrimination as a factor in death sentences. Experts who have studied the issue say these safeguards have been ineffective.

The central issue is whether black murderers who kill whites are receiving the same treatment under the law as murderers whose victims are nonwhite. The 14th Amendment to the Constitution guarantees all US citizens ``equal protection'' under the law. The debate is not over McCleskey's guilt or innocence but over how he will be punished -- by execution or a prison term.

The 11th US Circuit Court of Appeals ruled earlier this year in the McCleskey case that despite statistics showing what it termed a ``marginal disparity based on the race of the victim,'' McCleskey had failed to demonstrate that he, personally, had been discriminated against by Georgia officials. The appeals court further held that ``proof of a disparate impact alone is insufficient to invalidate a capital sentencing system.''

McCleskey's argument is based on a 1983 study by David C. Baldus, a University of Iowa law professor. Mr. Baldus examined 1,066 cases between 1973 and 1978 in which Georgia defendants were sentenced to death. He found that if a murder victim was white, the defendant's chances of being condemned to die were twice as high as those of a defendant whose victim was black.

A more recent study of death sentences since 1976 in Mississippi, conducted by Richard Berk of the University of California, Santa Barbara, also found that blacks convicted of killing whites were more likely to receive the death penalty.

Samuel Gross and Robert Mauro of Stanford University reached similar conclusions in an eight-state study of capital sentencing from 1976 to 1980 in Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and Virginia.

Though the amount of victim-race data is growing, the subject is still a matter of debate in criminal-justice circles. The Justice Department included only a brief mention of the issue in its recent annual report on capital punishment. It suggested that one of the explanations for the higher death-penalty rate among those who murder whites is that ``whites may constitute a greater proportion of felony murder victims.'' The report concluded that further research is needed.

Lawrence Greenfeld, who wrote the Justice Department report, notes that between 1975 and 1984 some 204,000 people were murdered in the United States. During this period, 2,384 defendants were convicted of murder and sentenced to die, yet only 32 executions were carried out.

``It is a very tiny fraction of all murder victims whose offender was ultimately executed. It is a very, very, very selective process,'' says Mr. Greenfeld. ``With so few compared to so many victims, can you really tie it to some kind of discrimination?''

``It is our position,'' says Paul D. Kamenar of the conservative Washington Legal Foundation, ``that the death penalty is imposed not because of the race of the victim but because of the nature of the crime.''

He says the victim-race argument is a ``last-ditch attempt'' by capital-punishment opponents to have the Supreme Court overturn the death penalty. ``I think they are trying to come up with any crafty argument they can make,'' he says.

Mr. Kamenar adds, ``If someone could show that there was some racial bias, I would be one of the first to say the death penalty should not be imposed for that reason -- but that is not to say that the death penalty should be struck down altogether.''

``The statistics are correct,'' says Ernest van den Haag, the John M. Olin Professor of Jurisprudence and Public Policy at Fordham University. ``What they prove is that there is discrimination in favor of black murderers of blacks, and against black murderers of whites.''

Professor van den Haag, a supporter of capital punishment, concedes that discrimination apparently exists in death-penalty sentencing, but he adds, ``In my opinion that doesn't make them less guilty.'' He stresses, ``We should execute the [guilty] whites, too.''