Base Death Sentences on the Facts, Not Race

WHAT if 65 percent of the job applications a district attorney received came from African-Americans and yet more than 80 percent of the people he hired were white? Would the law require that he explain?

What if the prosecutor habitually used his ``peremptory'' jury challenges to exclude African-Americans in felony cases in order to produce white juries? Would the law require he explain?

What if more than 60 percent of the murder cases the prosecutor handled involved African-American victims, yet in cases where he sought the death penalty, more than 80 percent involved white victims? Would he have to explain?

In the first two examples, the answer is yes: Under current law, he must explain.

Yet, surprisingly, there is no present remedy in the third situation. No law currently requires the government to explain even the most glaring and consistent racial patterns in how crimes are charged - even when a defendant's life is at stake.

Throughout our history, race has figured heavily in the death penalty. Before the Civil War, the Slave Codes mandated execution for any black who murdered a white but allowed a mere fine for a white who killed a black. Postwar laws continued to require different sentences based on the race of the victim. Today, long after our laws have been sanitized of such overt discrimination, the death penalty continues to be reserved overwhelmingly for cases where the victim is white. Of the 236 people executed since 1976, over 80 percent of the cases involved white victims while nearly 50 percent of the homicide victims each year are nonwhite. Incredibly, only once in the nation's history has a white been executed for killing a black - where the victim was a police officer and the defendant had also killed a white.

Last month, the House of Representatives voted to redress this inequity. It narrowly passed the Racial Justice Act, prohibiting the carrying out of a death sentence ``that was imposed based on race.'' But opponents are seeking to exclude it from the comprehensive crime bill, arguing that it will result in racial quotas and spell the end of the death penalty in America. Many of us who support the death penalty and have proudly devoted much of our careers to improving the nation's crime-fighting efforts find these arguments hollow. They are disturbingly reminiscent of the diversionary arguments against the Civil Rights Act back in 1964: that the real issue was not race but a too-powerful federal government trampling states' rights.

The Racial Justice Act would permit a death-penalty defendant to offer statistical evidence that death sentences in the judicial district where the crime was committed are imposed disproportionately based on the race of the defendant or the victim. The evidence would have to take into account penalties imposed for similar crimes by similar defendants.

If significant evidence exists, the prosecutor has an opportunity to explain, just as in the job discrimination and jury selection contexts. All he has to do is show that he had nonracial reasons for seeking or not seeking the death penalty. For example, the evidence in one case may be strong, the witnesses in another case had credibility problems; this defendant has a much longer criminal record, those defendants were mentally impaired or acted under duress. Or the prosecutor could simply show that the present crime is so serious - for example, any serial murder - that the death penalty would have been imposed regardless of race.

Where there is no race-neutral explanation, just as in the hiring and jury selection areas, the unrebutted showing of discrimination would require that the tainted sentence not be carried out. Of course, the conviction would be unaffected and a sentence of life without parole would generally be in order.

Under the act, the death penalty would continue in full force. Executions would be prevented only when they should be. It is the absolute antithesis of quota justice: It removes - not introduces -

considerations of race from deciding who lives and who dies and ensures that all death sentences are based only on the facts of the individual case, not prejudice.

For three decades, America has applied this same standard to protect people who have been deprived of a job, housing, service in a restaurant, or access to the ballot box because of their race. Surely these are important rights, but they pale next to life itself. It is time to correct this egregious inconsistency and ensure civil rights protections for this most fundamental right. When it comes to matters of life and death, asking the government to explain is the least we can do. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.