We must ask about death penalty bias
Editorial, Seattle Post-Intelligencer, May 30, 1999
Even though the answer might foster a painful national debate and turn
the criminal justice system upside down and inside out, this nation must not be afraid to ask the question: Is the death penalty being applied with a blind eye to race and economic status?
Because capital punishment is the most awesome power a state can wield,
and 38 do, it should be applied evenhandedly.
That we declare as believers in a state's right to deprive citizens of
life if they commit crimes so heinous and reprehensible that any lesser
punishment would not suffice.
The question has the kind of broad currency now that it has never
enjoyed, except among diehard opponents to capital punishment. The Nebraska Legislature recently voted to place a 2-year moratorium on executions while the state researched whether race, economic status or other issues play any part in capital punishment. (Gov. Mike Johanns vetoed the moratorium Wednesday.)
Earlier, Missouri Gov. Mel Carnahan antagonized death penalty supporters
and gratified opponents by granting Pope John Paul II's request that one
condemned prisoner's life be spared.
What causes us doubt is not these events as much as the staying power
and unsettling nature of the allegations of unfairness toward minorities and low- or no-income defendants in death penalty cases.
High among the concerns are national statistics that show that people
who murder white people are much more likely to be sentenced to death than
people who kill black people. Also, private attorneys in Louisiana have
gone without pay for a year on capital punishment cases, and a Colorado
judge has declared he could not be part of a system that is so "manifestly
At the highest level, the suspicions date to a 1987 U.S. Supreme Court case called McCleskey vs. Kemp which, for want of one vote, could have
brought clarification, if not resolution, to the troubling contentions.
Attorneys for a Georgia death row inmate presented the justices with a
seven-year study of cases from that state that showed that defendants
whose victims were white were, on average, 4.3 times more likely to die than defendants whose victims were black. Further, black people were 1.1
times as likely to be sentenced to death, according to the study led by
University of Iowa professor David Baldus.
But only showing a disturbing, long pattern of racial disparities in
Georgia was not sufficient to prove bias in the lone murder case before
them, the justices ruled, albeit by the slim margin of 5 to 4.
Taking their cue, the federal courts have not granted relief based on
the disproportionality assertion in death penalty cases. Yet the clamor
about inequality has escalated, ignited again by a 1996-98 study by Baldus
that revealed that the odds of being sentenced to death in Philadelphia were nearly four times higher when the defendant was black.
In one of the more chilling observations, Baldus said: "In Philadephia,
the capital sentencing statute has operated as though being black was not
merely a physical attribute, but as if it were one of the most important
aggravating factors actually justifying the death penalty."
No comparable study has been done in Washington state, which counts
three black men among 15 people on death row. And, while no disproportionality claim has been granted by the state Supreme Court in any appeal, the issue of paltry pay for emotionally grueling and time-draining death-penalty cases is a constant among defense attorneys and judges.
Consider one example. In 1990 Port Orchard attorney Roger Hunko was paid
$35 an hour for a capital case; a friend from law school days was then
making $235 an hour. Three years ago, Hunko received $52 an hour for
another death case; by then, his friend had topped $500 an hour. Aside
from his moral objections, it's no wonder Hunko objects to subsidizing the
death penalty process.
What can states do to assure citizens that when a person is put to death
in their name that discrimination -- intentional, inadvertent or insidious
-- has played no part? The Illinois Supreme Court has appointed a committee to study trial and sentencing procedures in capital cases. In that state a dozen have been freed from death row after it was determined they were wrongly convicted. Luckily, they were still alive.
Kentucky has acted responsibly by permitting judges to consider
race-based challenges to a prosecutor's decision to seek the death penalty. The country's first Racial Justice Act was passed there last year.
And though Nebraska executions will continue on schedule, there is no
reason why the integrity of the system cannot be formally questioned.
As of Wednesday, 46 people had been executed this year in this country;
the tally stands at nearly 550 since 1976. Each state that operates the
machinery of death has a responsibility to prove its oft-stated claim of
equal protection under the law.
In his vigorous dissent in McCleskey vs. Kemp, the late Justice Harry
Blackmun framed the dilemma in a manner that cannot be rebutted on any
moral ground. Addressing the court's fear the whole system could
collapse if disparity were shown, he said: "If a grant of relief (to the
defendant) were to lead to a closer examination of the effects of racial
considerations throughout the criminal justice system, the system, and
hence society, might benefit.
"Where no such factors come into play, the integrity of the system is
enhanced. Where such considerations are shown to be significant, efforts
can be made to eradicate their impermissible influence and to ensure an
even-handed application of criminal sanctions."
Like Blackmun, we submit that the fear that we may learn that justice is
not colorblind in the administration of capital punishment is no
justification for avoiding the question.