Race and The Death Penalty

By Jill Smolowe

"The death penalty symbolizes whom we fear and don't fear, whom we care about and whose lives are not valid," says Bryan Stevenson, the director of Alabama's Capital Representation Resource Center. Fair enough. Just whom do Americans fear -- and whom do they care about? The answers to these questions of life and death lie in a set of dry but startling statistics:

-- Of the 144 executions since the 1976 reinstatement of the death penalty in the U.S., not one white person has been executed for the killing of a black.

-- In those 144 killings, 86% of the victims were white, although roughly half of all murder victims in the U.S. are black.

-- Of the 16,000 executions in U.S. history, only 30 cases involved a white sentenced for killing a black.

Yet when Warren McCleskey, a black death-row inmate in Georgia, petitioned the Supreme Court in 1987, arguing that his capital sentence should be overturned because the race of his white victim played a significant role in his sentencing, his claim was rejected. Presented with data demonstrating that murderers of whites are four times as likely to receive the death penalty as murderers of blacks, the court allowed that the link between a victim's race and the imposition of the death penalty was "statistically significant in the system as a whole." But, the court concluded, no petitioner could rely exclusively on such statistics to show that "he received the death sentence because, and only because, his victim was white."

Last week McCleskey again petitioned the Supreme Court. This time he sought to have his conviction reviewed on the ground that his constitutional right to counsel had been violated when the police used a jailhouse informer to obtain a confession from him; this time the court was even sterner in its rejection. In a 6-to-3 ruling, the majority said such repeated petitions as McCleskey's "threatened to undermine the integrity of the habeas corpus process." Then the court set tough new standards that severely curtail a state prisoner's ability to bring claims of violations of his constitutional rights before a federal court.

Legal experts who believe the death penalty in the U.S. is applied in an unjust and arbitrary fashion are further alarmed by this latest ruling. "When you cut back on procedural grounds, you're talking about preventing discussion of disputes that may shine a light on various areas of the criminal-justice system that are going awry," says Randall Kennedy, a professor at Harvard Law School. "Who's going to shine a light on the way the system works other than the people enmeshed in it?" Gerald Chaleff, one of Southern California's top criminal-defense attorneys, warns, "You judge a society by how it imposes its harshest penalty, and in the U.S. we are now in a rush to see that it happens quickly rather than that it happens fairly."

In many of the 36 states that have capital-punishment statutes, the decision concerning who shall live and who shall die often has disturbingly little to do with the heinousness of the crime. More pertinent factors commonly involve the race of the victim and the competence of the defendant's counsel. Many legal experts believe the race of the defendant also plays a role -- 12% of the U.S. population is black, though blacks constitute 50% of death-row inmates -- but the evidence is equivocal. "The trouble with the death penalty is that it's like a lottery," says law professor Steven Goldstein of Florida State University. "There are so many discretionary stages: whether the prosecutor decides to seek the death penalty, whether the jury recommends it, whether a judge gives it."

Nowhere is that point illustrated more starkly than in Columbus, Ga. Since Georgia adopted its current death-penalty law in 1973, four white men in the Columbus district attorney's office have decided which murders will be prosecuted as capital crimes. To date, 78% of their cases have involved white victims, although blacks are the victims in 65% of the community's homicides. Among the other factors that may create greater sympathy for a white victim or defendant: all four judges in the state superior court, which tries capital cases, are white, and often the juries are all white, although blacks account for 35% of the Columbus population.

Given the odds stacked against black defendants who kill whites, the results are perhaps predictable. Last February two men were convicted of murder in separate trials in Columbus. James Robert Caldwell, a white defendant, was found guilty of raping and murdering his 12-year-old daughter and repeatedly stabbing his 10-year-old son. His sentence: life imprisonment. Jerry Walker, a black, was convicted of murdering the 22-year-old son of a white Army commander at nearby Fort Benning during a convenience-store robbery. His sentence: death. Caldwell's trial lasted five weeks. Walker's lasted 12 days. His jury deliberated for 97 minutes. Says Stephen Bright of the Atlanta-based Southern Prisoners' Defense Committee: "The death penalty was imposed not for the crime in Walker's case but because of the race and prominence of the victim's family."

Columbus is not alone in its skewed application of justice. A 1990 report prepared by the government's General Accounting Office found "a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty." A midterm assessment of the Bush Administration's civil rights track record issued last week by the independent Citizens Commission on Civil Rights found a similar "pattern of inequity" in death sentencing. Richard Burr of the NAACP Legal Defense and Educational Fund's capital-punishment project puts it more bluntly, "Prosecutors frequently pay no attention to the families of black homicide victims. They don't even stay in touch with them." Later this year Congress will consider a measure that aims to enable defendants to quash death-penalty sentences if they can provide evidence demonstrating a racial bias in sentencing patterns.

While Congress deliberates, defendants in capital cases must make the best of often terrible circumstances. According to the Washington-based Death Penalty Information Center, more than 90% of the 2,400 men and women currently on death row were financially unable to hire an attorney to represent them at trial. A few states, most notably California, take pains to ensure that defendants receive competent counsel. But in many states, particularly in the South, there are no safeguards. Because most states lack a public-defender system, courts appoint lawyers arbitrarily. The result, says Bright, is that "people aren't sentenced for committing the worst crimes; they're sentenced for having the worst lawyers."

Often the lawyers tossed into capital cases are either the most inexperienced, the most jaded or the most unethical. A 1990 investigation conducted by the National Law Journal found that lawyers who represented death-row inmates in six Southern states had been disciplined, suspended or disbarred at a rate of up to 46 times that of other attorneys in those states. In Louisiana, the state with the highest rate of disciplinary action against death-row trial lawyers, the average length of a capital trial is just three days, and the average penalty phase lasts just 2.9 hours.

Small wonder, given how ill-prepared many of the defense lawyers are when they enter the courtroom. Some of these attorneys meet their clients for the first time on the day of arraignment. More than half the lawyers are handling a capital case for the first time. Some have drinking problems; others have | decided biases. One Louisiana defendant learned that his lawyer was living with the prosecutor. A Florida man discovered that his public defender was a deputy sheriff. In Georgia, Eddie Lee Ross was defended by a white attorney who referred to Ross as a "nigger" and had been the Imperial Wizard of the local Ku Klux Klan for 50 years. Ross now awaits the electric chair.

Even court-appointed lawyers with good intentions are hampered by stingy allowances. Many work in states where there is a cap on both fees and legal expenses. Arkansas imposes a $100 limit on expenses and a $1,000 maximum on lawyer's fees. California, by contrast, routinely approves two lawyers for capital cases, pays them each an average of $75 an hour, and covers expert services, such as private investigators, which typically add $5,000 a month more to the defense tab. The state bill in an uncomplicated case comes to about $25,000, whereas in Arkansas, says Stevenson of the Resource Center, "we're asking lawyers to work for $1 an hour." Next month two Arkansas attorneys will challenge the cap before the state supreme court.

This week the U.S. Supreme Court will hear arguments in the case of Payne v. Tennessee about the value of "victim-impact evidence." On two prior occasions, the high court ruled that at the time of sentencing in capital cases, it is improper to introduce testimony dealing with the impact of a crime on a victim's family. The Bush Administration is sending no less a figure than Attorney General Dick Thornburgh to the court to argue for Tennessee's position allowing such impact evidence. After last week's ruling in the McCleskey case, many legal experts are concerned that the Justices this time will side with Tennessee. "The court is quite systematically knocking out regulations, streamlining the road to the electric chair," says Harvard's Kennedy. In the rush to make the process more efficient, the rights of criminal defendants are getting battered.

CHART: NOT AVAILABLE

CREDIT: TIME Chart

[TMFONT 1 d #666666 d {Source: National Coalition to Abolish Death Penalty}]CAPTION: 144 FELONS HAVE BEEN EXECUTED SINCE 1977

With reporting by Jonathan Beaty/Los Angeles, Cathy Booth/Miami and Julie Johnson/Washington