Judging Color

"That the following shall be considered as a capital offence when committed by a slave or person of color committing a rape of attempting it on a free white female." 1816 Georgia Criminal Statuse

WHILE THE EXPLICITLY racist terms of this ancient Georgia law may seem shocking, recent statistical studies on the administration of the death penalty in certain southern states now seem to indicate that our present system of capital punishment bears, in some senses, a remarkable resemblance to the death penalties of the old South.

Linking 1816 with 1984 is the pervasive and statistically dissemble racial discrimination that plagues capital punishment cases throughout our criminal justice system: an issue that has been central to the death penalty, at least according to Harvard Law Professor Alan Dershowitz, "since the beginning of time" Scholarly research on this subject much of it just now becoming available has revealed evidence that simply put death sentences are far more likely to result in those cases in which either the offender is Black or the victim is white.

Yet as David Bruck points out in a recent New Republic article on the subject of the death penalty, this sort of racial discrimination cannot be discerned by a mere glance at our death row population Because murder in America is, for the most part, "segregated"--e.g. whites usually kill whites and Blacks usually kill Blacks--the effects of offender victim discrimination tend to cancel each other out, and the percentage of death row inmates who are Black thus seems to correspond to the percentage of those arrested for homicide who are Black.

Yet when statistics regarding the race of both the offender and the victim are isolated and analyzed separately, as was done in a 1980 study by two Massachusetts criminologists. William Bowers and Glenn Pierce, the results are indeed starting. After a comprehensive examination of the administration of the death penalty in Georgia, Florida and Texas during the period 1973-1980. Bowers and Pierce found strong statistical evidence to support discrimination claims. In Florida for example, among those homicides cases in which the victim was white a Black offender was five times more likely to be sentenced to death than a white offender. Even more remarkable was the pattern of discrimination, as revealed by the study based upon the race of the victim. Among Black offenders in Texas, for example, those whose victims were white were 87 times more likely to receive a death sentence than those whose victims were Black. From all this, according to Bowers and Pierce, emerges "a single underlying racist tenet: that white lives are worth more than Black lives."

Explanations for this trend are, to some extent, necessarily speculative. Intuitively subtle or even unconscious racism on the part of not only juries but also judges and prosecutors, seems to lie at the root of the problem. In any particular case, a death sentence is only the final stage in a long drawn-out criminal justice process. For example, it is obvious, and statistically confirmed by Bowers and Pierce, that considerations of race do indeed come into play at the indictment stage in the decisions of local prosecutors, sensitive to public opinion and the odds for success regarding whether to plea bargain or seek a capital conviction.

In addition, juries, especially in southern states where the death penalty is most prevalent tend to defend white lives more vehemently than Black lives and especially to identify more with white victims. While the tendency towards such discrimination is, unfortunately, inextricably a part of criminal "justice" in states such as Georgia, it is aggravated in capital cases where opposition in principle to the death penalty is grounds for exclusion from a jury: statistics prove that juries qualified by such a condition underrepresented certain identifiable segments of the population, among them Blacks.

In contrast to only recently emerging statistical studies, such as that of Bowers and Pierce, legal arguments which suggest that differential treatment of suggest that differential treatments of this sort is inconsistent with prescribed constitutional standards, have, in fact, haunted death row appeals and Supreme Court decisions for close to fifteen years now. As a result, both the issue of capital punishment and the Court itself, are left today with a legacy of ambiguity, irony and, above all, hypocrisy.

Much of the legal ammunition for contemporary racial-discrimination based death sentence appeals has been derived from the Supreme Court's own 1972 decision in Furman v. Georgia. In this landmark case, the Court, in effect, struck down nearly every death penalty statute in the United States and, in the process, spared the lives of nearly 600 inmates then on death row.

According to the Court in effect existing death penalty laws have resulted in a system of capital punishment which when examined revealed "no meaningful basis for distinguishing the few cases in which (death) is imposed from the many in which it is not." The Court concluded that "these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

But the Furman decision did not, as many at the time had expected mark the end of capital punishment in the United States. State legislatures merely redrafted capital statutes in efforts designed to remedy these flaws and thus comply with the conditions implicitly set forth in Forum Typically these new laws provided safeguards to limit jury discretion.

In 1976, the Supreme Court in Gregg v. Georgia, upheld the constitutionality of redesigned death penalty statutes in Georgia, Florida, and Texas, finding that such laws provided adequate remedies for the pre--Furman problems of arbitrariness and discrimination.

HOW IS IT that these new laws have failed to provide the cure for the sort of racial discrimination that, as statistics reveal, still plagues the death penalty? For one thing, such racial discrimination is present not only in sentencing decisions, but also in the earlier stages of the criminal justice process Moreover, appellate review regardless of the percentage of death sentences overturned, does nothing to redress the imbalance of treatment by race.

Proponents of the death penalty, in rebuttal to racial discrimination claims often argue that this type of challenge to capital punishment is mere utopianism for it represents, in essence a lack of faith in the fundamental fairness of a criminal justice system administered as it inevitably must be by human beings. Yet such a justification fails to recognize that the death penalty is different from all other forms of criminal punishment, not only in degree but also in kind. In the recent words of Associate Supreme Court Justice William Brennan:

Although we may tolerate such irrationality in other sentencing contexts, the premise of Furman was that such arbitrary and capricious decision making is imply invalid when applied to a matter as grave as the determination of whether a human life should be taken or spared.

Racial discrimination moreover is significantly more prevalent in capital cases. As Bowers and Pierce point out, because death is the supreme form of punishment, reserved for those crimes which most provoke in people, abhorrence and anger, it is also the punishment most subject to "deeply rooted passions and prejudices that will cause its application to depart from the retributive justice model."

Because of the manner in which the news media covers the issue of capital punishment, the public tends to identify the death penalty with the individual criminal and to judge the issue by weighing the seriousness of his crime. And yet, as controversial as the questions of its moral justification or deterrent effect may be to the issue of the death penalty, aggregate evidence of pervasive racial discrimination in its administration screams for its abolition.

More immediately, for the 1230 convicted murders awaiting execution the racial discrimination question represents the last substantive issue in the federal court appeals for stays of execution; now that, just last month, the Supreme Court rejected an appeal based upon the issue of proportionality review. This, combined with the present Court's frequently articulated and ever-growing impatience with death penalty delays, is almost sure to mean a gradual acceleration in 1984 pace of executions in 1984 and the years to come.

What, in the final analysis, are the adds that the current Supreme Court. given its conservative bent, will rule favorably on a radical discrimination based appeal when it is finally forced to consider the issue? Not good, agree most constitutional scholars. According to Dershowitz the Burger Court will in all like hood handle the issue "the way they've always handled its poorly stupidly nastily, and without compassion it's all very grim.