Death Penalty, Still Racist and Arbitrary

The New York Times
LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks.
What became known as the Baldus study was the centerpiece of the Supreme Court’s 1987 decision in McCleskey v. Kemp. That case involved a black man, Warren McCleskey, who was sentenced to die for murdering a white Atlanta police officer. Mr. McCleskey argued that the Baldus study established that his death sentence was tainted by racial bias. In a 5-to-4 decision, the Supreme Court ruled that general patterns of discrimination do not prove that racial discrimination operated in particular cases.
Of course, the court had to say that, or America’s capital justice system would have screeched to a halt. Georgia is not special. Nationwide, blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of those executed had murdered white people. Over the past three decades, the Baldus study has been replicated in about a dozen other jurisdictions, and they all reflect the same basic racial bias. By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write e-mails announcing they are seeking death in a given case because the murderer was black (or because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of Harris County, Chuck Rosenthal, resigned after news emerged that he had sent and received racist e-mails. His office had sought the death penalty in 25 cases; his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite defendant.
Since 1976, Texas has carried out 470 executions (well more than a third of the national total of 1,257). You can count on one hand the number of those executions that involved a white murderer and a black victim and you do not need to use your thumb, ring finger, index finger or pinkie.