A Response to the Initial Report of the United States to the United Nations

Ford Foundation Symposium

October 172000

by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center

The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has signed and rat­i­fied, guar­an­tees the right to equal treat­ment before [all] tri­bunals … admin­is­ter­ing justice,“1 and this cer­tain­ly includes the appli­ca­tion of the death penal­ty. Although the Race Convention does not specif­i­cal­ly address cap­i­tal pun­ish­ment, it binds all state par­ties to con­demn racial dis­crim­i­na­tion and under­take to pur­sue by all appro­pri­ate means and with­out delay a pol­i­cy of elim­i­nat­ing racial dis­crim­i­na­tion in all its forms.…“2 The Convention fur­ther requires states to pro­vide both a rem­e­dy and a forum for chal­leng­ing racial discrimination.

The United States, in its recent report on its com­pli­ance with the Race Convention, acknowl­edges the con­cerns that have been raised about the per­sis­tent prob­lem of racial dis­par­i­ties in the death penal­ty, but it has failed to under­take or even to rec­om­mend the means that would help to rem­e­dy these dis­par­i­ties, as required under the Convention.

The vol­ume of evi­dence show­ing that race dis­torts and effects the crit­i­cal deci­sions about who lives and who dies in this coun­try is now over­whelm­ing and irrefutable. The his­to­ry of racial bias in the death penal­ty con­tributed to the United States Supreme Court’s find­ing that the exist­ing death penal­ty was uncon­sti­tu­tion­al in 1972.3Subsequent revi­sions of state and fed­er­al laws were intend­ed to cor­rect for the arbi­trary and capri­cious qual­i­ty of cap­i­tal pun­ish­ment, which opened the door to racial bias.4

But the prob­lems of racial dis­par­i­ties have not been eliminated.5 African-Americans are sen­tenced to death and are exe­cut­ed in far greater num­bers than their pro­por­tion in the U.S. pop­u­la­tion as a whole.6 Those who receive the death penal­ty have almost exclu­sive­ly been con­vict­ed of com­mit­ting a crime against a white per­son. Eighty-two per­cent of the exe­cu­tions car­ried out since 1976 have involved the mur­der of a white victim,7 even though whites are vic­tims in only 50% of the mur­ders com­mit­ted in the U.S.8 When inter­ra­cial mur­ders are exam­ined, the sta­tis­tics are even more glar­ing. Since 1976, 158 black defen­dants have been exe­cut­ed for the mur­der of a white vic­tim, but only 11 white defen­dants have been exe­cut­ed for the mur­der of a black victim.9 Indeed, in the entire his­to­ry of the U.S., it has been extreme­ly rare for a white per­son to be exe­cut­ed for mur­der­ing a black per­son, while exe­cu­tions of blacks for the mur­der of whites have been rel­a­tive­ly common.10

In 1990, the U.S.‘s own General Accounting Office con­duct­ed a review of the exist­ing stud­ies on race and the death penal­ty and con­clud­ed that the over­whelm­ing major­i­ty of these stud­ies showed that: those who mur­dered whites were found to be more like­ly to be sen­tenced to death than those who mur­dered blacks.“11

Supreme Court Justice Harry Blackmun, who vot­ed to uphold the death penal­ty both in 1972 when it was halt­ed, and in 1976 when it was rein­stat­ed, con­clud­ed that racial dis­crim­i­na­tion con­tin­ues to infect the prac­tice of the death penal­ty: Even under the most sophis­ti­cat­ed death penal­ty statutes, race con­tin­ues to play a major role in deter­min­ing who shall live and who shall die.“12

Recent stud­ies fur­ther con­firm the per­sis­tent pat­tern of racial dis­crim­i­na­tion in the U.S. death penal­ty. A sys­tem­at­ic analy­sis in Philadelphia by award-win­ning researchers David Baldus and George Woodworth revealed that the odds of receiv­ing a death sen­tence are near­ly four times (3.9) high­er if the defen­dant is black. These results were obtained after ana­lyz­ing and con­trol­ling for case dif­fer­ences such as the sever­i­ty of the crime and the back­ground of the defendant.

How does racial bias creep into a sys­tem which the U.S., in its report on com­pli­ance with the Race Convention, claims to be pro­tect­ed by height­ened pro­ce­dur­al safeguards?“13 One way is through the key deci­sion-mak­ers, who make the cru­cial deci­sions about which defen­dants will be pur­sued with the death penal­ty. A study by Professor Jeffrey Pokorak of St. Mary’s University Law School in Texas found that the key pros­e­cu­tors who choose to pur­sue death cas­es around the coun­try are almost exclu­sive­ly white men. Of the chief District Attorneys in coun­ties using the death penal­ty in the United States, near­ly 98% are white and only 1% are African-American. If such a pat­tern of race dis­par­i­ty were found in the employ­ment records of a major U.S. cor­po­ra­tion, there would sure­ly be an offi­cial out­cry and swift changes would be made.

Examinations of the rela­tion­ship between race and the death penal­ty, with vary­ing lev­els of thor­ough­ness and sophis­ti­ca­tion, have now been con­duct­ed in every major death penal­ty state. A report to the American Bar Association found that in 96% of these reviews, there was a pat­tern of either race-of-vic­tim or race-of-defen­dant dis­crim­i­na­tion, or both. Race is more like­ly to affect death sen­tenc­ing than smok­ing affects the like­li­hood of dying from heart disease.

A most egre­gious exam­ple of this type of racial dis­crim­i­na­tion was revealed in a study of Kentucky’s death row. In that state, there were over 1,000 mur­ders of African-Americans since the death penal­ty was rein­stat­ed. However, not one per­son on Kentucky’s death row was there for the mur­der of a black per­son. Death row was exclu­sive­ly pop­u­lat­ed by those who mur­dered a white person.14

Just yes­ter­day, a study was released regard­ing Texas’s use of the death penal­ty. Among oth­er egre­gious exam­ples of injus­tice, the pat­tern of racial bias stood out: Although almost a quar­ter of all Texas mur­der vic­tims were black men, only 0.4% of those exe­cut­ed since the rein­state­ment of the death penal­ty were con­demned for killing a black man. And Texas has nev­er exe­cut­ed a white man for killing a black person.

Perhaps most telling of all the stud­ies on race and the death penal­ty was released last month by U.S. Department of Justice. Americans look to the fed­er­al gov­ern­ment to be a mod­el of equal­i­ty and full due process. The region­al bias­es which may dis­tort local appli­ca­tion of the law should be absent from a more cen­tral­ly con­trolled fed­er­al gov­ern­ment. The fed­er­al death penal­ty should not be cloud­ed with the aura of racial discrimination.

But the num­bers revealed by the same gov­ern­ment which reports that it finds no prob­lem with race and the U.S. death penal­ty reveal a dif­fer­ent sto­ry. By the gov­ern­men­t’s own num­bers, 80% of the near­ly 700 cas­es sub­mit­ted by U.S. Attorneys in the past 5 years for fed­er­al death penal­ty pros­e­cu­tion involved minor­i­ty defen­dants. Over 70% of the cap­i­tal pros­e­cu­tions approved by Attorney General Janet Reno involved minor­i­ty defen­dants. And 80% of those cur­rent­ly on the fed­er­al death row are minori­ties, includ­ing 2/​3 who are African-American. That’s a worse record than exists in any state death row around the country.

The response of the Attorney General and the President of the United States to these embar­rass­ing num­bers is that they were trou­bled.” Perhaps even more stud­ies will be con­duct­ed, but in the mean time, the first two fed­er­al exe­cu­tions in 37 years are sched­uled to occur in the next two months, and there has been no acknowl­edg­ment that a mora­to­ri­um is need­ed while such racial dis­par­i­ties are exam­ined more close­ly. There has been no call for leg­is­la­tion to guar­an­tee that sta­tis­ti­cal stud­ies show­ing such pat­terns of racial bias be at least con­sid­ered by courts review­ing them.15

Without such reme­di­al leg­is­la­tion, and despite this over­whelm­ing evi­dence of dis­crim­i­na­tion, the response of the courts will be to deny relief. Such leg­is­la­tion, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in var­i­ous states but it has only been passed by one state, Kentucky.16 In its stead, Congress enact­ed severe restric­tions on the access of death row inmates to fed­er­al courts where race chal­lenges can be brought,17 and elim­i­nat­ed all fed­er­al fund­ing for the legal resource cen­ters which had fre­quent­ly raised these claims.

The human cost of this racial injus­tice is incal­cu­la­ble. The deci­sions about who lives and who dies are being made along racial lines by a near­ly all white group of pros­e­cu­tors. The death penal­ty presents a stark sym­bol of the effects of racial dis­crim­i­na­tion. In indi­vid­ual cas­es, this racism is reflect­ed in eth­nic slurs hurled at black defen­dants by the pros­e­cu­tion and even by the defense. It results in black jurors being sys­tem­at­i­cal­ly barred from ser­vice, and the devo­tion of more resources to white vic­tims of homi­cide at the expense of black vic­tims. And it results in a death penal­ty in which blacks are fre­quent­ly put to death for mur­der­ing whites, but whites are almost nev­er exe­cut­ed for mur­der­ing blacks.

This per­sis­tent and per­va­sive evi­dence of racial dis­crim­i­na­tion in the appli­ca­tion of the death penal­ty, cou­pled with the resis­tance to cor­rec­tive leg­is­la­tion, under­mines the U.S.‘s com­pli­ance with the Race Convention. If blacks are being pun­ished more severe­ly because of their race, or if defen­dants who kill white vic­tims are exe­cut­ed while those who kill blacks are giv­en life sen­tences, then the death penal­ty is an instru­ment of dis­crim­i­na­tion in vio­la­tion of the Race Convention and should be stopped.

Endnotes

1. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969), Article 5(a) (here­inafter Race Convention).

2. Race Convention, Article 2(1) (empha­sis added).

3. See Furman v. Georgia, 408 U.S. 238 (1972) (espe­cial­ly con­cur­rences of Marshall, Brennan, and Douglas, JJ.).

4. See Gregg v. Georgia, 428 U.S. 153 (1976).

5. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

6. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (July, 2000).

7. Id.

8. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1998 293, Table 3.136 (1999).

9. See Facts About the Death Penalty, Death Penalty Information Center (October 102000).

10. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 71991.

11. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (empha­sis added).

12. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dis­sent­ing from the denial of certiorari).

13. Initial Report of the United States to the United Nations on the Elimination of Race Discrimination, Part II, C. Specific Articles, Article 5: Capital Punishment (Sept. 2000)

14. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (cit­ing Univ. of Louisville study).

15. See McCleskey v. Kemp, 481 U.S. 279 (1987) (reject­ing all such stud­ies, but posit­ing leg­is­la­tion requir­ing their use in appeals).

16. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act, not passed in the Senate).

17. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (call­ing the restric­tions on habeas cor­pus a mon­u­men­tal shift of pow­er to the state courts from the Federal judiciary”).