A New Look at Race When Death Is Sought

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A New Look at Race When Death Is Sought

By ADAM LIPTAK

Published: April 29, 2008

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.”

http://www.nytimes.com/2008/04/29/us/29bar...kR99zeNTqvLSJ5g