Justice by quota - Omnibus Crime Bill of 1994

National Review, Sept 12, 1994 by J. Daryl Charles

AFTER the Omnibus Crime Bill suffered its setback in Amid August, the Clinton Administration tried to revive it by promising members of the Congressional Black Caucus that federal prosecutors would consider race in death-penalty cases. The offer was in lieu of the so-called Racial Justice Act, which would have allowed defendants in capital cases to challenge death sentences on the basis of "racial disparity."

Underlying both the Racial Justice Act and the Administration's promise is a dangerous notion: unless the racial composition of condemned prisoners reflects that of the general population, the death penalty is discriminatory. Thus, since blacks convicted of murder (whose victims are themselves overwhelmingly black) outnumber their white counterparts roughly 8 to 1, and since Asian-Americans rarely kill anyone, executions cannot be permitted.

Race should never be a factor in criminal law, especially in matters of life and death. Yet opponents of capital punishment insist upon making it an issue, in effect seeking racial quotas for executions. However, the claim that death sentences are racially biased has never been demonstrated.

Black and Hispanic prisoners are about as likely as white prisoners to be serving a sentence of life imprisonment or death. According to a 1991 survey of state prison inmates by the Bureau of Justice Statistics, between 1986 and 1991 6.9 per cent of convicted whites received life sentences, compared to 7.1 per cent for blacks and 6.7 per cent for Hispanics. Similarly, the percentage of inmates serving sentences of life without parole was the same for both whites and blacks: 0.7 per cent. And most significantly, 0.5 per cent of convicted whites, 0.3 per cent of convicted blacks, and 0.4 per cent of convicted Hispanics received the death penalty.

If the oft-repeated claim of "pervasive racism" against blacks in capital cases were valid, one would expect it to show up in statistical trends. Yet the numbers show no such thing. From 1977 to 1991, slightly more than four thousand felons received death sentences in the United States. Of these, 59 per cent were white, 39.6 per cent were black, and 7.4 per cent were Hispanic. Of the 157 who were actually executed, 54 per cent were white, 39 per cent were black, and 6 per cent were Hispanic.

In 1984, the U.S. witnessed the highest number of executions (21) of any year since 1976, when three Supreme Court cases upheld the death penalty. The statistical breakdown of death sentences for 1984, published in Corrections Today, is revealing, though not surprising: 1,405 people were sentenced to death, all of whom had been convicted of murder. Of these, 1,388 were male, 17 were female; 804 were white, 585 were black, and 16 were classified as members of other races. Of the 21 who actually were executed, 13 were white males, 7 were black males, and 1 was a white female.

A similar profile emerges from statistics compiled by the NAACP Legal Defense and Education Fund. In its March 1986 newsletter, the group identifies the race of each death-row inmate executed between January 1977 and January 1986. Of the 51 people executed, 34 were white and 17 were black. No commentary on racial imbalance attended these statistics.

A twist on the racial-disparity argument says that, even if black murderers are no more likely to be executed than white murderers, black murderers are more likely to get the death penalty when they kill whites than when they kill blacks. But there is a common-sense explanation for this phenomenon that has nothing to do with racism. When a murder involves people of different races, it is more likely that the victim and the killer are strangers, and such murders tend to be of the kinds where the death penalty applies. Whites are significantly more likely to be murdered by a stranger--and by someone of a different race--than blacks are.

In connection with a 1987 Supreme Court case, Joseph Katz, a professor of statistics at Georgia State University, examined data used in the defense of a black man who was sentenced to death for the murder of a white Atlanta police officer. Katz organized the data into four categories: black-on-black murder, black-on-white murder, white-on-white murder, and white-on-black murder. Black-on-black murder normally was drug-, gang-, or family-related--i.e., cases that do not typically qualify for the death penalty. In contrast, blacks frequently killed whites in the context of burglary or robbery and thus were eligible for the death penalty based on double felony charges. Whites killed whites in burglaries or robberies about as often as in family disputes. The final category Katz analyzed, white-on-black murder, occurred too infrequently for a pattern to be discernible.

Lacking a legitimate philosophical basis for opposing capital punishment, many abolitionists in desperation reach for the race card. Claims of "racial bias" allow the anti-death-penalty crowd to assume the mantle of civil rights. But to suggest that the ultimate in human crimes should not be met with the ultimate in punishment simply because of skin color is not justice or compassion. It is racism, pure and simple.