Death Penalty: Black and White

SHOULD the race of the victim be relevant to the decision whether or not to execute a defendant convicted of a killing? Should the race of the defendant? I am confident that the overwhelming majority of Americans would answer ``no'' to both questions. Yet a new study released by the federal General Accounting Office (GAO), finds a ``pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty'' in this country. The GAO evaluated 28 studies which had shown that race plays an important, sometimes critical role in this life-or-death decision. These studies reveal, in state after state, that under otherwise similar circumstances, the killer of a white is far more likely to receive the death penalty than is the killer of a black.

Probably the best-known study was conducted by Prof. David Baldus, who analyzed all Georgia homicides between 1973 and 1979. Professor Baldus examined over 2,000 cases and considered 230 nonracial variables. After taking account of these variables, he found that a Georgia defendant's odds of receiving a death sentence were 4.3 times greater if his victim were white than if his victim were black.

A nationwide study by the Dallas Times Herald, encompassing 11,425 capital murders from 1977 to 1984, revealed that the killer of a white was nearly three times more likely to be sentenced to death than the killer of a black in the 32 states where the death penalty has been imposed. In some states, the disparities were even higher. In Maryland, killers of whites were eight times more likely to get the death sentence than killers of blacks; in Arkansas, they were six times more likely to receive it; and in Texas, they were five times more likely to receive it.

The nationwide results are supported by other studies of individual states or groups of states. Statistically, significant disparities based on the victim's race were found in Florida, Illinois, Oklahoma, North Carolina, and Mississippi. Among the results were that in Florida, killers of whites were eight times as likely to get the death penalty; and in Illinois, they were six times as likely to receive it. Other statistical studies have shown significant race-of-the-victim effects in South Carolina, New Jersey, Colorado, and Cook County, Chicago, Ill.

Congress will likely face this issue later this month as a result of the US Supreme Court's 1987 decision in McCleskey v. Kemp.

The court concluded that legislative action, not a constitutional ruling, is the appropriate way to address the manner in which race improperly affects capital sentencing. The court said that the legislature is better qualified to evaluate statistical studies and has greater flexibility than courts.

This past session the Senate Judiciary Committee accordingly took an important step to remedy the problem by approving a bill called the Racial Justice Act. The act would permit use of statistical evidence to demonstrate the existence of a pattern of racial bias in the application of death sentences. The proposed remedy is fair, it is workable, and it should be enacted by Congress.

Under the act, capital defendants who establish evidence of racial bias in death-penalty sentencing in a particular state could have their death sentences (not their convictions) set aside if the state does not rebut that evidence either by discrediting the statistical analysis or by showing that nonracial factors explain the disparities in sentencing data.

This proposal would not eliminate the death penalty, nor threaten the operation of fairly functioning state capital-punishment systems. It would affect only cases in which a valid statistical showing is made of racial discrimination in the imposition of the death penalty. Even in these cases, resentencing (including reimposition of the death sentence) could occur once the discrimination is rectified.

The act would not create a difficult or unprecedented task for the courts. The courts routinely use statistical evidence in constitutional challenges in other areas, such as jury selection, voting rights, and employment-discrimination cases.

Passage of the Racial Justice Act would encourage states to take positive steps to guard against the possibility of discrimination tainting their capital cases. For example, states could provide clearer guidelines to prosecutors as to when it is appropriate to seek the death penalty. The state appeals courts could also ensure greater fairness by comparing death-sentence cases with other capital cases in which a life sentence was imposed, so that death sentences stained by racial bias can be corrected.

The question here is not whether capital punishment is an appropriate criminal sanction. The American Bar Association has taken no position for or against capital punishment generally. But if the death penalty is to be imposed, the ABA believes strongly that every reasonable step must be taken to eliminate arbitrariness, including racial bias, that may exist in the capital-sentencing process.

Racial discrimination in the imposition of capital punishment is intolerable. Congress can take a giant stride in helping to ensure equal justice under the law for all our citizens by enacting the Racial Justice Act.