Appeal Cites Report That More Killers of Whites Are Condemned : Race of Victim Called Factor in Death Penalty

Ten years after the Supreme Court reinstated the death penalty, the justices squarely face a fundamental question: Is the race of the victim a factor in imposing capital punishment?

In a case to be heard this month, Warren McCleskey, a black man convicted of killing a white policeman, contends that he received a death sentence in part because prosecutors and jurors in Georgia treat killers of whites more harshly.

But his argument does not turn solely on the facts of his case. Instead, civil rights attorneys want to use the case to demonstrate what they consider to be a compelling pattern of racial discrimination in death sentences throughout the South. In Georgia, for example, a study of sentencing patterns showed that killers of whites were 11 times more likely to receive the death penalty than killers of blacks.

Troublesome Issue

For the Supreme Court, McCleskey’s case poses a clear dilemma: The justices have been leery about using such statistics to decide an individual case before them, but they have also been sensitive to evidence of systematic racial discrimination. And, for several justices, the death penalty continues to be a troublesome, divisive issue.

Fourteen years ago, the high court struck down death penalty laws throughout the nation, concluding that Georgia and several other Southern states had picked criminals for execution in “an arbitrary and capricious manner.” In one county, for example, a rapist would get a death penalty, although in another, a multiple killer would not.

Four years later, the justices reversed themselves, again in a Georgia case. The death penalty could be restored, they decided, because criminal laws rewritten since the earlier ruling should “guide” juries in selecting the proper sentence. In addition, a required review by the Georgia Supreme Court would “safeguard against prejudicial or arbitrary factors” that determine who lives and who dies.

66 Executions

Since then, 65 men and one woman have been put to death around the nation, and 1,765 criminals are in prisons awaiting a similar fate.

But the NAACP Legal Defense Fund, a staunch foe of capital punishment, did not believe that the law would be administered fairly, and extensive studies conducted by David Baldus, a University of Iowa law professor, were offered to prove the point.

From 1974 to 1979, Georgia had 2,475 cases of homicide in which a suspect was arrested. Of those, 128--about 5%--resulted in death sentences.

Baldus found that 228 of the cases involved blacks killing whites, resulting in 50 death sentences, a rate of 22%. Of the 745 cases in which whites killed whites, 58 death sentences were meted out, a rate of 8%.

The largest group--1,438 cases--involved blacks killing blacks, but only 18 of these killers got death sentences, a rate of only about 1%. Only 64 cases involved whites killing blacks, which led to two death sentences, a rate of 3%.

Victims Compared

If the cases are compared by victim, Baldus told a federal court, those who killed whites were 11 times more likely to get the death penalty than those who killed blacks, regardless of race of killer.

Even when Baldus narrowed his study to compare only crimes that are similar--such as a killing that took place during a store robbery--he found that killers of whites were 4.3 times more likely to get the death penalty than killers of blacks.

The NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights Under Law say such numbers show a clear pattern of racial discrimination, one that places a higher value on the lives of whites than on the lives of blacks.

In Georgia, they point out, seven men have been put to death since the high court upheld the state’s death penalty law in 1976. Six of the seven were blacks who killed whites.

“Although these raw figures are certainly not scientific proof,” the committee said in its brief to the court, “no fair-minded observer who is aware of the history of race relations in this state can confront them without suspecting that racial inequities persist in the manner in which capital defendants are chosen for execution by the Georgia judicial system.”

State’s Argument

Attorneys for the state of Georgia say the high court justices should ignore the statistics and focus on the case now before them, that of Warren McCleskey--a convicted robber and murderer who shot a policeman in Atlanta.

“Although statistics are a useful tool in many contexts . . . there are simply too many unique factors relevant to an individual case to allow statistics to be an effective tool in proving intentional discrimination,” the state contends in its brief. “Statistics alone or a disparity alone is clearly insufficient to justify an inference of discrimination.”

The state says there is no evidence that the prosecutor or jurors treated McCleskey more harshly because he is black or because his victim was white. Moreover, the Georgia Supreme Court reviewed the sentence and certified that it was not “influenced by passion or prejudice” or excessive in relation to the crime.

In 1978, McCleskey, along with three accomplices, tried to rob a furniture store in Atlanta. When a policeman responding to a silent alarm entered the store, “two shots rang out,” the court record says. One shot struck the officer in the head, killing him. The four suspects fled but were apprehended later, and one testified that McCleskey was the trigger man, a charge that he denied.

Accomplices Get Prison

All four men were convicted of participating in the robbery and murder. Three received long prison terms, and McCleskey was given a death sentence.

Since then, his case has gone back and forth on appeals in state and federal courts (McCleskey vs. Kemp, 84-8611). In a 1983 federal court trial, Baldus presented his findings, which included 230 factors that could influence the outcome of a case, ranging from age and occupation of the murderer to the location and circumstances of the crime. One expert testified that this was “far and away the most complete and thorough analysis of sentencing” ever conducted.

But the judge disagreed, concluding that the study was “substantially flawed” because the data could not measure which were the most heinous crimes.

The next year, the full U.S. 11th Circuit Court of Appeals reviewed the case and--despite three strong dissents--agreed that Baldus’ data did not prove that Georgia’s system was discriminatory.

Appeals Court Opinion

Social science is a “non-exact science” whose results should be used by a court only when “the statistical evidence is so strong as to permit no inference other than that the results are the product of racially discriminatory intent or purpose,” the appeals court said.

The NAACP Legal Defense Fund, however, said this standard is “one no capital defendant could ever overcome.”

The circuit court opinion also includes two other passages that civil rights groups found shocking.

“The Baldus study does not purport to show that McCleskey was sentenced to death because of either his race or the race of his victim,” the opinion stated. “It only shows that in a group involving blacks and whites, all of whose cases are virtually the same, there would be more blacks receiving the death penalty than whites and more murderers of whites receiving the death penalty than murderers of blacks.”

In its brief to the high court, the Lawyers Committee called it “astounding . . . that any court in this day and age would simply dismiss admittedly valid, comprehensive proof because it ‘only’ demonstrated that race is an influential factor in capital sentencing.”

‘Racially Neutral Factors’

Later in the same opinion, the appeals court said Baldus’ study did not include “countless racially neutral factors” that could explain the differences in sentences of whites and blacks, including “looks, age, personality . . . clothes and demeanor.”

The civil rights attorneys called it “unimaginable that such criteria could serve as legitimate justifications for death sentences.”

But one finding of the Baldus study has been left largely unexplained. After he controlled his study to take into account all the possible factors, he found that the race of the killer--as opposed to the victim--had little effect on the sentence he received.

“If bias is going to be a factor, surely it would be more apparent with respect to the race of the defendant who is sitting right there before the prosecutor and the jury,” said Steven Klein, a research scientist at the Rand Corp. in Santa Monica, who has reviewed the Baldus study. “It just doesn’t ring right.”

Florida Case

“It’s preposterous to say we have discrimination that shows up in the cases of victims but not the defendants,” said Sean Daly, an attorney for Florida, who will defend its death penalty law in a case that has been paired with McCleskey’s.

Samuel Gross, a Stanford University law professor, studied capital punishment in Florida and seven other states, not including California, and found that cases with white victims consistently resulted in more death sentences. In Florida, murders involving white victims were eight times more likely to result in death sentences than murders of blacks.

But the forthcoming Florida case also has “a strange set of facts,” as Daly noted. There, a white man convicted of raping and killing his 13-year-old white step-niece is contending that he was subjected to discrimination in the sentencing because his victim was white (Hitchcock vs. Wainwright, 85-6756).

The entire premise of focusing on the victims is “outrageous,” says Paul Kamenar, legal director of the Washington Legal Foundation, a conservative group that supports the death penalty. “It is quite a strange theory that would allow a murderer to use his victim as his defense,” he says.

Kamenar says that relying on statistical measures would lead the criminal-justice system down a blind alley. “Even if you concluded the statistics were right, how would you correct it?” he asked. “Execute more murderers of blacks? Have a quota system for executions?”

The Legal Defense Fund’s answer is the elimination of capital punishment. However, Jack Boger, the fund’s chief attorney, says his first goal in the McCleskey case is to win a Supreme Court order requiring the lower courts to examine the data on racial bias in sentencing.

‘Most Visible Cases’

In addition, he offers one possible explanation for why bias shows up mostly in regard to the victim. “My sense of it is that prosecutors invest more time and resources in what they view as the most visible cases. Since the whites have a higher status, their cases get more attention,” Boger said.

Yale Kamisar, a University of Michigan law professor, said he doubts that the Supreme Court will rely on the statistics to decide the McCleskey and Hitchcock cases, which they will hear Oct. 15 and rule on by June.

“They are very squeamish about using this kind of data,” Kamisar said. “You can never say conclusively based on these numbers that one factor caused the outcome. I may find these studies impressive, but I don’t think a majority of the justices will.”