A Response to the Initial Report of the United States to the United Nations
Ford Foundation Symposium
October 17, 2000
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).
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 10, 2000).
10. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.
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”).
