Advertisement

High Court Rejects Racial Challenge to Death Penalty

Share via
Times Staff Writer

The Supreme Court on Wednesday upheld the death penalty, rejecting as inconclusive statistical evidence that race helps determine which murderers are condemned to die and which are allowed to live.

Foes of the death penalty admitted that the 5-4 decision, in the case of a black man who killed a white Atlanta policeman, swept away their best chance of ending executions in the United States.

Lawyers opposed to capital punishment had presented what they viewed as powerful evidence that killers of whites were more likely than killers of blacks to be sentenced to death in several Southern states. They cited a study that found murderers were 11 times more likely to receive the death sentence if the victim was white rather than black.

Advertisement

Concedes System Not Perfect

Justice Lewis F. Powell, in a long and carefully worded opinion, conceded that Georgia’s capital punishment system is not perfect and might be unfair to blacks. But he insisted that statistics could not “prove” that race dictated the death penalty for the black killer of a white Atlanta policeman.

“In this case,” he said, the court had no evidence that prosecutors and jurors discriminated against the killer. He said the court would need “far stronger proof” of “purposeful discrimination” before it would throw out the death penalty.

In dissent, Justice William J. Brennan Jr. said that the “dual system of crime and punishment” that was legal before the Civil War is “still effectively in place” in Georgia. He derided the court’s majority for dismissing evidence that “relentlessly documents” a pattern of continuing unfairness.

Advertisement

Had Other Alternatives

If the court majority had concluded that the death penalty was contaminated with racism, it could have thrown out all state capital punishment laws, as it did in 1972 when a majority of five justices found the administration of the penalty to be “arbitrary” and “capricious.”

Or it could merely have required Georgia officials to explain the apparent racial “discrepancy” in how death sentences are meted out and, if necessary, revise state laws and procedures to eliminate discrimination.

Instead, the court chose the third route, concluding that while the statistics may be troubling, they do “not demonstrate a constitutionally significant risk of racial bias” that would require a change in Georgia’s judicial system.

Advertisement

Lawyers on both sides called the ruling the most important on the issue since the court reinstituted capital punishment in 1976, providing that states gave juries clear guidance on which crimes merited the death penalty.

“It is shocking that this court would turn a deaf ear to evidence that race plays an enormous role in judgments about the death penalty,” said Henry Schwarzchild, a lawyer for the American Civil Liberties Union.

Daniel Popeo, an attorney with the conservative Washington Legal Foundation, said that he is “elated” by the decision. “If it had gone the other way,” he said, “sociologists and statisticians would have become more important than judges and juries.”

Inmates May Be in Peril

Dozens of Death Row inmates in the 37 states that permit capital punishment are likely to move a step closer to execution because of the high court ruling.

But the courts--state and federal--will continue to hear a variety of individual challenges to death sentences. Even while upholding Georgia’s death penalty law Wednesday, the Supreme Court also vacated the death sentence of a Florida murderer, concluding that a judge should have allowed his jury to hear “mitigating evidence” (Hitchcock vs. Dugger, 85-6756).

Just a month ago, the court majority concluded that statistical evidence was enough to justify promoting a woman over a better-qualified man as part of an affirmative action plan. But in the death penalty case, the court rejected statistical evidence as inconclusive.

Advertisement

The statistics compiled on all of the Georgia murder cases from 1973 to 1980 shows “at most only a likelihood that a particular factor (such as race) entered into some decisions,” Powell wrote.

70 Persons Executed

Since the Supreme Court reinstated capital punishment in 1976, also in a Georgia case, 70 persons have been executed, including seven in Georgia--six blacks who killed whites and one white whose victim was also white. The majority of murder victims in Georgia are black, but none of their killers has been executed.

The Georgia case decided Wednesday began in 1978 when Warren McCleskey, along with three others, robbed an Atlanta furniture store. A policeman, alerted by a silent alarm, entered the store and was shot in the head and killed.

The fatal bullet was found to have come from a gun owned by McCleskey. He was convicted of first-degree murder and sentenced to death.

The NAACP Legal Defense Fund appealed his case and presented statistical evidence compiled by University of Iowa law professor David Baldus showing a pattern centering on race.

Analyzing data from more than 2,000 Georgia homicide cases, Baldus found that prosecutors were more likely to seek the death sentence when a murder victim was white than when he was black. Moreover, juries were more likely to vote for a death sentence when the victim was white.

Advertisement

Victims’ Race Studied

The death sentence was dealt to 1% of blacks convicted of killing other blacks and 3% of whites convicted of murdering blacks. But when the victims were white, the death sentence was far more likely: in 8% of the cases in which the killer was white and 22% of those in which the killer was black.

Baldus looked at 39 other factors, including aggravating or mitigating circumstances such as whether the murder was committed during a drunken argument. He still found that cases involving white victims were 4.3 times more likely to result in a death sentence than those in which the victims were black.

McCleskey’s death sentence was upheld by the Georgia Supreme Court in 1981, by a federal district court in 1981 and by a federal appeals court in 1984.

Powell concluded that Georgia’s judicial system had “imperfections” but also contained “safeguards to make it as fair as possible.” Moreover, McCleskey’s defense team did not present “direct evidence” that he was treated unfairly, he said.

Calls Evidence Impossible

John Charles Boger, the New York attorney who represented McCleskey, said it would be impossible for lawyers to furnish that kind of evidence.

“The only thing that would fit the bill would be a confession from a juror or a prosecutor, which is obviously not going to happen,” said Boger. “We clearly demonstrated through the statistics that race is a factor in who lives and who dies under Georgia’s capital punishment statute. I’m very disappointed the court chose to ignore this evidence.”

Advertisement

In his dissent, Brennan declared: “It is tempting to pretend that minorities on Death Row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.”

‘Not Too High a Price’

Letting some convicted murderers escape execution for life in prison “is not too high a price to pay for a death penalty system that does not discriminate on the basis of race,” he said.

Joining Powell in the majority were Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Antonin Scalia.

Two of the dissenters--Brennan and Justice Thurgood Marshall--oppose the death penalty entirely. The other two--Justices Harry Blackmun and John Paul Stevens--said that Georgia officials should be forced to explain the apparent unfairness in their system, and if possible, revise their laws and procedures to eliminate race as a factor (McCleskey vs. Kemp, 84-6811).

THE DEATH PENALTY OVER 15 YEARS

Key death penalty decisions from the Supreme Court:

1972--A badly split court threw out all death penalty laws, concluding that they were “arbitrary” and “capricious” in their administration. (Furman vs. Georgia)

1976--Capital punishment was reinstated in states where new laws give juries guidance on which crimes deserve the death penalty. (Gregg vs. Georgia)

Advertisement

1977--Death sentences for rape were prohibited. (Coker vs. Georgia)

1982--Death sentences were prohibited for accomplices who did not commit a killing or “intend” that the victim be killed. ‘Enmund vs. Florida)

1986--Execution was prohibited for prisoners who are insane. (Ford vs. Wainwright)

April 21, 1987--Death sentences were permitted for accomplices to murders if their participation was “major” and they displayed a “reckless indifference to human life.” (Tison vs. Arizona)

Advertisement