How the Death Penalty is Racist

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Of all the arguments against the death penalty, the hardest to prove has been that it is biased based upon the defendant’s race. Not any more

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

… the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

The facts, however, seem to belie the findings:

John B. Holmes Jr., the district attorney in the years Professor Phillips studied, 1992 to 1999, asked for the death sentence against 27 percent of the white defendants, 25 percent of the Hispanic defendants and 25 percent of the black defendants. (Professor Phillips studied 504 defendants indicted for the murders of 614 people. About half of the defendants were black; a quarter each were white and Hispanic.)

But what the numbers do not demonstrate is the nature of the homicides for which District Attorney Holmes sought the death penalty, controlling for the race of the perpetrator:

Professor Phillips wrote about percentages and not particular cases, but his data suggest that black defendants were overrepresented in cases involving shootings during robberies, while white defendants were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims.

This disparity is common, and it’s about time it was applied to the death penalty. The United States is currently dealing with the disparities in sentencing between powder cocaine (generally favored by whites) and crack cocaine (generally favored by blacks) offenses. Anyone who visits night court can see the differences, down to the level of misdemeanors. And in Harris County, where the stakes are life and death,

When the nature of the crime is taken into account, Professor Phillips wrote, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Harris County juries corrected for that disparity to an extent, so that the odds of a death sentence for black defendants after trial dropped to 1.49.

I wouldn’t party over the fact that the odds of a death sentence for blacks is only half again as likely than for whites. Neither would I celebrate this study making any difference anytime soon:

This discussion, at least where the courts are concerned, is entirely academic. Twenty-one years ago, the Supreme Court ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not offend the Constitution. The vote was 5 to 4, and the case was McCleskey v. Kemp.

True enough. But someday Antonin Scalia and Anthony Kennedy (both born in 1936) will be not merely old men, they will be very, very old men. And 5-4 could become 6-3. McClesky v. Kemp, in its own way, is the late 20th Century’s Plessy v. Ferguson, and may yet go the way of that case and bring the United States ever closer into the family of fully civilized nations.





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