By Erik Eckholm
New York Times
23th February 1995
About half of all the people who are murdered each year in the United States are black. Yet since 1877, when a firing squad in Utha initiated the modern era of capital punishment, the overwhelming majority of people who have been executed -85 per cent- had killed a white person.
Only 11 per cent had killed a black person.
Such a huge disparity seems to suggest that racial factors may be influencing how death penalty is dispensed but in different ways than some people had suspected.
While death penalty opponenets had long feared that the race of the killer would play a pronounced role in determining who would be executed and that blacks would be put to death far more frequently than whites, several studies suggest that the most significant distinction is the race of the victim.
Other things being equal, the studies show killers of white people are more likely to receive death sentences than killers of blacks.
Whether similar racial disprities are likely to occur in New York and what if anything, should be done to prevent it have been topics of dispute in Albany as legislators prepare to revive the death penalty.
But the experience of other states suggests to many experts that such patterns will be hard to eliminate. "Some people are being senteced to death based on race, and I find that morally and legally objectionalble", said Dr. David C. Baldus, professor of law at the University of Iows and director of what is widely considered the most authoritative study of racial factors in capital punishment.
The question of race is among the mostly polically charged and highly studied issues in capital punishment. And it goes to the heart of a question that troubles many opponenets: whether the imposition of the death penalty is inherently unfair.
Shortly before he retired from the United States Supreme Court last year, Justice Harry A. Blackmun cited intractable racial disparities as one of the reasons why he had turned against capital punishment altogether.
But bias if it exists is no reason to slow down executions said Ernest van den Haag former professor of jurisprudence at Forum University in New York. "The fact that a murder who gets the death penalty could point to a murder who didn't" he said " does not make him any less guilty".
Although the strength of some of the research findings disputed, numerous studies around the country have reached these basic conclusions:
"Disparities in death sentencing are most often realted to the race of victim. When the victim is white, the death penalty is imposed more often whether the killer is black or wite. In one study, the presence of wihte victim did as much to increase the changes of a death sentence as the fact that the murder was committed during an armed robbery.
Bias does not necessary occur at the most visible point of the judicial process-when juries decide whether to recommend death. Often disparities arise from earlier decisions by prosecutors like whether to allow the defendant to plead gulty to a lesser charge or whether to ask for the death penalty at all.
The disparities are concentrated among certain kinds of murder cases that account for perhaps one-fifth to one-forth of the total. In a majority of murderes -crimes of passion, killings in barroom brawls- death is rarely imposed. In a small number of especially grisly crimes like multiple murders, death sentences are frequent regardless of race. But for murderes that fall into a middle ground-the killing of a shopkceper in a robbery, say or a murder by a person with a serious felony record-prosecutors and juries are more likely to agonize over the propriely of a death sentence and hidden biases are more likely to creep in the studies suggest.
In a 1990 review of 28 studies on race and the death penalty the General Accounting Office in Whasington said" in 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder of receiving the death penalty". The office described the trend as "remarkably consistent" trough research of varied quality and scope, and pointed to crucial gaps in some reports that found no bias.
The same review described as "equivocal" the evidence that the race of the defendant mattered several studies found sings that blacks convicted of murder were more likely to be executed especially in rural areas but others found white defendants at higher risk especially in cities and some studies found no difference.
A long history
Law once gave penalties by race
To many people the likelihood of bias seems greatest in interracial killings with blacks who kill whites more likely to receive death sentences. The sheer numbers appear to bears that out: over the last 18 years, 88 black men have been executed for killing whites while only two white men have been executed for killing blacks.
But most of the studies indicate that when the nature of the crimes is taken into acount as well as the fact that black-on-white killings are more frequent than white-on-black killings the evidence of extra bias arises from the race of the victim, regardless of the killer's race.
Discrimination in murder penalties by the race of the victim has a long history, especially in the South. In the days of slavery, laws in many states openly specified different penalties, said George H.Kendall associate councel of the NAACP Legal Defence and Educational Fund with death the automatic sanctions when a black killed a wite. "Those laws were swept away after the Civil War but the customs that grew up around them remained" Mr.Kendall said.
In a classic 1944 study of American race relations "An American Dilemma" Gunnar Myrdal found that when blacks committed crimes against each other without invoving whiles the legal consequences were lower than when whites were harmed. "The sentences for even major crimes are ordinarly reduced when the victim is another Negro" he wrote.
Because of its size and detail the most persuasive evidence of bias comes from a study of Georgia in the 1970's by Dr. Baldus. Looking at 1050 murder cases researchers tried to weed out the influence of 39 factors that might affect penalties from the past record of the defendant to whether the killing was committed like robbery or rape to the motives and means of the killing.
After those factors are eliminated Mr.Balus said in a recent interview a clear racial effect reamined: when the murder victim was white the chance of a death penalty was roughly doubled in certain kinds of case the ones failing into that middle ground.
Assessing statistics
Just how reliable are the studies?
Some statisticians question whether the Baldus study let alone others of lesser sweep really prove bias. Stephen P.Klein a researcher at the Rand Corporation said the available statistical methods were incapable of showing cause and effect.
He noted that the number of actual death sentences in question in such studies was small and that uncounted often intangible factors like the credibility of witnesses at trial might well explain the apprent racial disprities.
Dr.Samuel R. Gross a professor at law at the University of Michigan and an author of a study that found bias in eight states said there was no reason to think that uncounted factors would wipe not the racial differences found in numerous studies around the country.
The focus on the race of victims rather than defendants has a paradoxical effect. Since most murders involve killers and victims of the same race eliminating the disparity linked to the race of the victim would likely mean that the proportion and perhaps the absolute number of blacks on death row would rise.
If killers of black people were executed at the rate of killers of whites many more blacks would receive death sentences. If on the other hand killers of whites were executed at the same rate as killers of blacks, many whites would be spared.
But a jump in death sentences for blacks would be unlikely, said Mr Kendall of the legal defence fund which opposes the death penalty on the ground that it is inherently unfair and unworkable.
"If everything were fair, I think we'd see a lot fewer capital cases over all" he said. Now, he said the death penalty is used especially when a high-profile victim is murdered , usually a white person. Given the enormous public expense of capital cases "we're not going to see a big increase in black victim cases" he said.
Countermeasures
Effort to offset racial disparities
Whetehr racial disparities seem to other parts of country will extend to New York when it institutes the death penalty cannot be known. Dr Baldus and others caution against assuming that studies in one place and time apply to any other. But he added that his recent analysts of death sentencing in New Jersey in 1980's produced premliminary evidence of similar bias, though the numbers are still small.
Mr. Kendall said that if anything the country appeared to be moving backward in race relations and that prejudice was by no means limited to the South. "I don't see anything about New York that would make the process work any differently here than anywhere else" he said.
What might be done to purge the death penalty of bias is unclear. As one countermeasure New York legislators apparently plan, in capital cases, to permit lawyers to question potential juroes in private about their racial attitudes.
New York many also call for research on racial aspects of death sentencing over time to delect any disparities. But it apparently will not take the step that civil rights advocates want most to write into the law that statistical evidence of disparities should be a powerful weapon in court for individual defendants facing death.
If prosecutors had no legitimate explanation for defected disparities Mr. Kendall said then death sentence in the affected subgroup of defendants should be overturned.
The Baldus study itself was the centerplace of an appeal to the United States Supreme Court in 1987 by a black man in Georgia who had been sentenced to death for murdering a white police officer in the case McCleskey v. Kemp the defendant argued that his penalty should be revoked based on the evidence of systematic discrimination in cases like this.
The Supreme Court by a 5 to 4 vote rejected the appeal arguing that he also had to prove actual discrimination in the handing of his own case.
But defence lawyers say that standard has harmed their search for trial fairness.
"It is almost impossible to prove purposeful discrimination in a single case" said Dale Jones an assistant public defender.
For the last several years civil rights groups have sought to write a "racial justice" provision into Federal criminal law which would require quantitative studies of racial patterns in death sentencing. But last year Congress as it adopted a new crime bill rejected the proposal. Opponents belittled the evidence of bias and said such a law could be used in court to hog down any application of the death penalty.
Dr.van den Haag the death penalty proponent questioned the importance of research showing bias by the race of the victim. And even if discrimination exists, he said, the solution is not to abolish the death penalty but to end disparities - by increasing executions of the favoured group. Dr. Baldus said the issue was not whetehr blacks or whites get their state on death sentencing whwtehr justice is tainted by inappropiate consideration. "The real concern isn't the number of black people on death row" he said "it is the integrity of the system".
