Execution by quota?

Public Interest, Summer, 1994 by Stanley Rothman, Stephen Powers

ON MARCH 17, 1994, the House Judiciary Committee voted to incorporate the Racial Justice Act into this year's Omnibus Crime Control Bill. The Act essentially would create quotas for the administration of the death penalty, under the assumption that the penalty is applied in a manner discriminatory to black Americans. While the legislation has been opposed by House Republicans, one should not, given the temper of the times and the mood of Congress, discount the possibility that it eventually will become law.

The Racial Justice Act would prohibit "the imposition or execution of the death penalty in a racially discriminatory pattern." Further, the Act provides that to establish a prima facie showing of discrimination:

it shall suffice that death sentences are being imposed or executed ... upon persons of one race with a frequency that is disproportionate to their representation among the numbers of persons arrested for, charged with, or convicted of, death-eligible crimes....

The controversy

The employment of the death penalty as the ultimate criminal sanction has been the subject of enormous debate. Execution has been challenged not only on moral and religious grounds, but more recently on constitutional grounds--as a violation of the Eighth Amendment's protection against cruel and unusual punishment. Opponents of the death penalty contend that it is employed so arbitrarily as to amount to a game of state-sponsored Russian roulette. While the Supreme Court has not ruled capital punishment to be unconstitutional, in 1972 it held that the death penalty was unconstitutional as then practiced, finding evidence of arbitrariness sufficient to require that states overhaul death sentencing procedures.

One of the most controversial aspects of the arbitrariness claim is the charge--leveled by numerous activists and social scientists--that the death penalty has been applied in a manner unfair to blacks. In Furman vs. Georgia (1972), several members of the Court observed that racial discrimination had produced different patterns of sentencing and rates of execution for blacks and whites. Indeed, numerous studies of the late 1800s and early 1900s have found that blacks were executed in disproportionate numbers, particularly when the victims of their crimes were white.

The apparently discriminatory impact of capital punishment has not gone unnoticed in Congress. In fact, one aim of the Racial Justice Act is to circumvent prior federal court decisions which have held that statistical research does not provide sufficient evidence of "discriminatory intent" to trigger Fourteenth Amendment protection. The Act states that "it shall not be necessary to show discriminatory motive, intent, or purpose on the part of any individual or institution."

If the Racial Justice Act becomes law, state and federal authorities will have to demonstrate that any racial disparities in sentencing are "clearly and convincingly" explained by non-racial factors. Given the high cost of litigation and likely delays, as well as the difficulty of proving non-discrimination when sentencing is based partly on factors not easily subjected to statistical analysis (how does one quantify the "heinousness" of a crime?), states could be forced to abandon death sentences against some black defendants, irrespective of the merits of the cases. If this occurred, sooner or later it might also be an easy matter for white defendants to show discriminatory sentencing under the same law. The death penalty would be effectively eliminated.

But is death sentencing truly discriminatory? The truth is complicated by a number of factors that opponents of the death penalty have tended to discount or ignore. There appear to be legitimate reasons for racially disparate sentencing. Indeed, a number of social scientists have argued that racial prejudice is not a significant determinant of execution rates. These social scientists have demonstrated that when a number of legal factors are taken into account, the relationship between a defendant's race and the likelihood of execution tends to disappear. Why, we must ask, in spite of the questionable validity of the discrimination thesis, does the death penalty continue to be assailed as one of the most repugnant manifestations of American racism?

Past studies

Before the Supreme Court's decision in Furman, a majority of death penalty studies had reposed that discrimination against black defendants was substantial, particularly in cases of rape and in the South. Certainly there was ample historical precedent. By law, black slaves were subject to the death penalty for numerous crimes for which whites received much more lenient sentences. In 1848, for example, Virginia enacted a statute which required that blacks be executed for any crime for which whites might receive three years' imprisonment (Dike, 1981). The evidence for discriminatory death sentencing through the nineteenth and early twentieth centuries, particularly in the South, seems incontrovertible.