Date: Tue, 26 Nov 1996 08:09:33 -0600
From: hammel@compassnet.com
To: Multiple recipients of list <deathpenalty@assocdir.wuacc.edu>
Subject: Re: racial statistics


As a matter of fact, the issue of racial discrimination in the
administration of the death penalty in America has been the
subject of intense debate, and has generated thousands of pages
of comm-entary in law reviews, appellate opinions, and other
journals.  The reason there appears to be relatively little
debate about it today is because most of the legal issues
surrounding racial discrimination in death sentencing were
resolved adversely to condemned inmates in 1987.  In that year,
the United States Supreme Court issued a landmark decision on
this very issue entitled McCleskey v. Kemp, 481 U.S. 279.  The
petitioner in that case, Warren McCleskey, claimed that the death
penalty as administered in Georgia discrim-inated on the basis of
race.  He presented in support of his claims a survey conducted
by Professor David C. Baldus and  several colleagues.

Baldus studied 2,000 Georgia murder cases from the 1970s.  He
took into account 230 variables, including everything from number
of victims to jury composition to triggerman/non-triggerman
status and a host of other, smaller variables.  Controlling for
all these other variables, the Baldus study determined that there
were clear statistically significant differences in murder
sentencing based on the race of the murder victim.  Using
multiple-regression analysis, Baldus determined that the race of
the homicide victim played as important a role in determining
whether a defendant would be sen-tenced to death as (1) whether
the defendant was the "prime mover" in the murder or (2) whether
the defendant had a prior murder conviction.  The key stage of
the process was when the prosecutor decided to seek the death
penalty or not.  The prosecutor sought the death penaty in 70% of
the cases in which the defendant was black and the victim was
white.  In contrast, the prosecutor sought the death penalty in
only 15% of black-on-black murders, and only 19% of
white-on-black murders.  There was some evidence, which was less
convincing, pointing to discrimination based on the race of the
defendant.

The Supreme Court quibbled with some of the study's method-ology,
but they could not attack its fundamental conclusions for the
simple reason that the State of Georgia, despite Herculean
efforts, was unable to find any major flaws with the study.
Instead, the Supreme Court, in a 5-4 opinion authored by Lewis
Powell, conceded that the study demonstrated troubling aspects of
the administration of the death penalty in Georgia.  However,
Powell reasoned, McCleskey's appeal must fail for two main
reasons.  First, McCleskey had been unable to offer any "smoking
gun" evidence that the authorities discriminated against him
personally.  Second, Powell noted accurately that in the
Anglo-American model of criminal justice, prosecutors are
invested with extremely broad and unreviewable discretion, which
is thought to be necessary to their performing their jobs
correctly.  Powell reasoned that forcing pros-ecutors to explain
why they did or did not choose to pursue the death penalty in
particular cases would trample on this discretion and harm law
enforcement.  Justices Brennan and Blackmun issued smoldering
dissents on behalf of the four dissenters, and it is fair to say
that McCleskey has been one of the most fiercely criticized
opinions the Supreme Court has ever handed down.  There are
volumes of academic commentary attacking it.   Justice Powell
himself appears to have been swayed by some of this commentary.
Speaking to a group of students shortly after his retirement in
1991, he confessed that he had been wrong in McCleskey, and that
if he had the opinion to write over again, he would have struck
down the Georgia death penalty on the basis of racial
discrimination.

And that is how death penalty history is made.