The Court Tunes Out

For shame, Supreme Court, for shame.

The court’s majority has simply chosen to shut its eyes to blatant systematic racial discrimination in the United States in the way murderers are sentenced to death. No one looking at the voluminous statistics can fail to note that the killers of white people are far more likely to be executed than the killers of black people. About 95% of the nearly 2,000 persons on Death Row in this country killed whites, though blacks are six times more likely than whites to be murdered. The only possible explanation is that the justice system values white lives more highly than black lives.

Yet five U.S. Supreme Court justices make believe that the facts are other than what they are. Justice Lewis F. Powell Jr.--writing for himself and for Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Antonin Scalia--says that discrepancies in sentencing are built into the the criminal-justice system and that there is no reason to assume that the explanation for the discrepancies is racial discrimination.

The fact is that deciding Wednesday’s case from Georgia on behalf of the condemned man, Warren McClesky, would have been tantamount to throwing out the death penalty throughout the country, for the racial disparity in capital sentencing exists in every state. The majority of the court did not want to do that, so it resorted to this unbelievable rationalization instead.

Faced with the statistics, which he could not explain away, Powell said that it is up to state legislatures to examine them and determine “the appropriate punishment for particular crimes.” This is what judges always say when they don’t want to decide a case: Leave it up to the legislature. But in our society we expect judges to pursue justice when legislatures cannot or will not.

This case from Georgia was the last of the broad-based legal challenges to the death penalty, all of which have now failed. Barring an unforeseen development, the nation can now expect a steady cadence of executions in response to the majority’s demand for revenge against killers. But do not think that the number of murders will decline as the number of executions goes up. The death penalty is not a deterrent. It does nothing more or less than turn states into murderers.

The same 5-4 majority on Tuesday held that capital punishment could be meted out to persons who did not actually kill anyone as long as they were at the scene and participating in a crime when the murder occurred. This decision could affect as many as 29 death-penalty cases now pending in California as well as many more cases around the country. It unfortunately reverses the trend in recent years of reserving the death penalty for killers alone.

It is clear that there are now five solid votes on the U.S. Supreme Court on behalf of using capital punishment. The hiatus in executions after the court’s 1972 ruling throwing out the death penalty was just a hiatus. Except in specific cases of legal error or other extenuating circumstances, the court will stand aside as thousands of condemned people are led to their deaths.

If even the racial argument didn’t move this majority, it is hard to imagine what might. But we hope that opponents of capital punishment will find a better argument, and we hope that the Supreme Court justices have their thinking caps on when they hear the argument. For now, it is a sad day for those who believe that government should be at least as moral as the governed.