A New Look at Race When Death Is Sought
By Adam Liptak
New York Times - April 29, 2008
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
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.
It has never been conclusively proven that, all else
being equal, blacks are more likely to be sentenced to
death than whites in the three decades since the
Supreme Court reinstated the death penalty in 1976.
Many experts, including some opposed to the death
penalty, have said that evidence of that sort of direct
discrimination is spotty and equivocal.
But 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.
His statistics have profound implications. For every
100 black defendants and 100 white defendants indicted
for capital murder in Harris County , Professor Phillips
found that an average of 12 white defendants and 17
black ones would be sent to death row. In other words,
Professor Phillips wrote, "five black defendants would
be sentenced to the ultimate sanction because of race."
Scott Durfee, the general counsel for the Harris County
district attorney's office, rejected Professor
Phillips's conclusions and said that district attorneys
there had long taken steps to insulate themselves from
knowing the race of defendants and victims as they
decided whether to seek the death penalty.
"To the extent Professor Phillips indicates otherwise,
all we can say is that you would have to look at each
individual case," Mr. Durfee said. "If you do that, I'm
fairly sure that you would see that the decision was
rational and reasonable."
Indeed, the raw numbers support Mr. Durfee.
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.)
Mr. Holmes was, Professor Phillips said, selective but
effective: he asked for the death sentence against 129
defendants and obtained 98.)
But Professor Phillips said that the numbers suggesting
evenhandedness in seeking the death penalty did not
tell the whole story. Once the kinds of murders
committed by black defendants were taken into
consideration - terrible, to be sure, but on average
less heinous, less apt to involve vulnerable victims
and brutality, and less often committed by an adult -
"the bar appears to have been set lower for pursuing
death against black defendants," Professor Phillips
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
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
Jon Sorensen, a professor of justice studies at Prairie
View A&M University in Texas, said he was suspicious of
Professor Phillips's methodology.
"It's bizarre," Professor Sorensen said. "It starts out
with no evidence of racism. Then he controls for
Moreover, Professor Sorensen said, Professor Phillips
failed to take account of other significant factors,
including the socioeconomic status of the victims.
Professor Sorensen said he remained convinced that
racial disparities, if they exist at all, "are victim-
based only," as earlier studies have found.
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.
That ruling closed off what had seemed to opponents of
the death penalty a promising line of attack, and they
are still furious about it, comparing it to the court's
infamous 1857 decision that blacks slaves were property
and not citizens.
"McCleskey is the Dred Scott decision of our time,"
Anthony G. Amsterdam, a law professor at New York
University, said in speech last year at Columbia .
"It is a decision for which our children's children
will reproach our generation and abhor the legal legacy
we leave them," said Professor Amsterdam, who worked on
the McCleskey case and many other capital punishment
The majority opinion in McCleskey was written by
Justice Lewis F. Powell Jr. After he retired, his
biographer asked Justice Powell whether, given the
chance, he would change his vote in any case.
"Yes," Justice Powell said. "McCleskey v. Kemp."