A New Look at Race When Death Is Sought

A New Look at Race When Death Is Sought

By Adam Liptak

New York Times - April 29, 2008

http://www.nytimes.com/2008/04/29/us/29bar.html

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.

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

concluded.

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.

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.

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

stuff."

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

landmarks.

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."

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