ISSUE / DEATH PENALTY : Little-Noticed Kennedy Measure Might Mean End to Executions

No wonder politicians from coast to coast have been falling all over themselves in support of the death penalty: Public opinion polls show that the vast majority of the voters support capital punishment.

But, if a little-noticed measure now pending in the Senate becomes law, the practical effect may be to abolish the death penalty nationwide.

That at least is the opinion of Atty. Gen. Dick Thornburgh and the top law enforcement officials of about two dozen states.

The measure, known as the Racial Justice Act and sponsored by Sen. Edward M. Kennedy (D-Mass.), was approved 7 to 6 by the Senate Judiciary Committee in October. A close vote is expected in the full Senate, probably within weeks.

Proposal

The bill forbids imposing the death penalty in states in which statistics show that a “racially discriminatory pattern” exists in capital punishment cases. And the proposal would invalidate the death penalty whether the “racial” pattern involved a defendant directly or some other aspect of capital cases.

The latter is significant because statistical analyses of capital punishment have consistently yielded the same result: Those who murder whites are more likely to get a death sentence than those who murder blacks.

Strangely enough, the race of the murderer is not as clearly significant nationwide as the race of the victim. For the nation as a whole, a General Accounting Office study said, only “equivocal” evidence was found that the race of the offender had a strong effect on the imposition of the death penalty. There was, however, some evidence suggesting that, in some states, blacks are more likely to receive the death penalty than whites.

Under the proposed law’s terms, a Death Row inmate could cite racial data in death penalty cases as a reason for having his sentence invalidated. It would then be up to the state to convince a federal judge through “clear and convincing evidence (that) pertinent non-racial factors” explain the statistical disparity.

The committee report gave these examples:

If death penalties were imposed on black persons convicted of capital crimes far more frequently than on whites convicted of the same crimes, a racially discriminatory pattern would be presumed and prosecutors would have to demonstrate that non-racial factors accounted for the difference.

Equally, the committee report said, if evidence shows that 15% of all defendants charged with killing white persons receive the death penalty and only 1% of all defendants charged with killing black persons received the death penalty, then a discriminatory pattern would be presumed. It would be up to prosecutors to offer proof that non-racial factors were involved.

Opposing Forces

State officials contend that they cannot meet such a test. It “would have the practical effect of abolishing capital punishment,” Thornburgh and 23 state attorneys general said recently in letters to members of the Senate.

California Atty. Gen. John Van de Kamp, in a March 15 letter to the Senate, also opposed the Kennedy bill, saying that it “will effectively preclude any state from enforcing its capital punishment statutes.”

In a sharply worded response, civil rights leaders said they were “outraged by the cavalier attitude” expressed by the state attorneys general. The measure is “designed to expose and eliminate racial bias in the application of the death penalty, not to eliminate the death penalty,” they said.

“I’m shocked by their willingness to tolerate discrimination in the way that our criminal justice system metes out the most severe punishment,” said Julius L. Chambers, director of the NAACP Legal Defense Fund.

Among those supporting the bill are the American Bar Assn. and the Leadership Conference on Civil Rights.

Background

The Kennedy measure is an attempt to overturn a 1987 Supreme Court ruling that upheld Georgia’s capital punishment system, despite an exhaustive study which found that killers of whites in the state were four times as likely to get the death sentence as were killers of blacks.

The court, on a 5-4 vote, concluded that the murderer in question--a black man who shot a white policeman--had received due process of law and a fair trial. Statistics based on other cases were irrelevant, the justices said, opening the way for a potential execution.

The original Kennedy measure has been incorporated into a broader Senate bill whose purpose is to re-establish the death penalty for federal crimes, including espionage, destruction of an airplane and the murder of a U.S. official.