THE DEATH PENALTY in the United States today is, as the lawyers say, "settled law" -- meaning the major constitutional challenges to its imposition have been recently considered and rejected by the U.S. Supreme Court. But the debate over whether the death penalty is imposed fairly and impartially enough to suit not the legal but the moral conscience of America still rages.
That dispute centers on two main issues: First, does racial discrimination play a significant role in determining who is sentenced to die? And, second, is the quality of legal defense for indigent people facing the death penalty good enough to ensure that poor people are not unfairly treated?
The modern history of the death penalty begins in 1972, when a Supreme Court decision effectively declared all existing capital punishment laws unconstitutional for violating the Constitution's Eighth Amendment clause against "cruel and unusual punishment." The decision was based on the court's conclusion that death-sentencing procedures were arbitrary and potentially discriminatory. State legislatures -- led by those in the South, where the death sentence was imposed most often -- then wrote new statutes to meet the Supreme Court's objections.
In 1976, the Supreme Court ruled in favor of statutes that attempted to limit the death sentence to the most heinous murders. Today, 36 states (including Maryland and Virginia) have such death penalty statutes. The new laws also added to capital murder trials a "penalty" phase during which the prosecution can present evidence supporting imposition of the death penalty and a guilty defendant's attorney can present evidence of mitigating factors, such as the defendant's poverty or possible mental illness or whether the defendant was abused as a child.
In more recent years, the Supreme Court has ruled that a capital murder defendant's legal defense is adequate if it is proven that defense counsel's decisions were reasonable at the time they were made and if the guilty verdict is supported by the weight of evidence presented at trial. The court also has ruled that statistical evidence of broad racial disparities in the imposition of the death penalty is not necessarily grounds for proving racial discrimination in any given case. To overturn a verdict on grounds of racial discrimination, the court ruled, defendants must prove discrimination in their particular cases.
Even the staunchest critics of the death penalty acknowledge that it is imposed far more equitably today than it was before 1972. But numerous statistical studies by criminologists have established that capital defendants who kill whites are still far more likely to receive the death penalty than defendants who kill blacks. "The critical distinction is the race of the victim, period," says University of Iowa law professor David C. Baldus, co-author of the recent book Equal Justice and the Death Penalty. "All of the white-victim crimes are treated more harshly than those with black victims," adds Baldus, whose massive statistical studies of death sentencing are considered the most authoritative by criminologists. Baldus found that in Georgia, a capital defendant -- white or black -- who killed a white person had on average a 4.3 times greater chance of receiving the death penalty than a defendant who killed a black person under similar circumstances.
"The discrimination is against anybody who kills a white," says University of Michigan law professor Samuel R. Gross, co-author of Death & Discrimination. His reviews of capital crime cases in Arkansas, Florida, Illinois, Mississippi, North Carolina, Oklahoma and Virginia have found race-of-victim sentencing disparities similar to those Baldus found in Georgia. "In every case the race of the victim makes a large difference in who gets sentenced to death and who doesn't."
The Bush administration Justice Department has disputed the findings of racial disparity in sentencing, pointing to a U.S. District Court review of Baldus's Georgia study that concludes that the study was seriously flawed and its conclusions invalid. (Numerous criminologists do not share the District Court's opinion. "The quality of the judge's report is laughable," says University of New Hampshire criminologist Michael Radelet. "He absolutely did not know what he was talking about. And that's not just my opinion, but the opinion of every criminologist I know.")
Justice officials also have argued that even if the studies that report a race-of-victim disparity are correct, the best way to redress such an imbalance isn't to end capital punishment but to more aggressively prosecute homicides committed against blacks.
In 1989 testimony before the Senate Judiciary Committee, Baldus argued that the race-of-victim disparities found in numerous academic studies flow mostly from the decisions of local prosecutors who decide in which cases they will seek the death penalty. Baldus called the disparities "the effect of political, personal and economic considerations" by prosecutors. In this view, the murder of whites more often results in public outrage, because whites can better identify with white victims, especially if they are middle-class victims. The political power of whites in most communities leads elected prosecutors -- consciously or unconsciously -- to respond. Murderers of blacks, as the Baldus and other studies suggest, are given less attention.
Anti-death-penalty activists such as Bryan Stevenson in Alabama and Stephen B. Bright at the Southern Prisoners' Defense Committee in Atlanta have compiled examples of alleged local judicial and prosecutorial bias in instances of black-on-white crime, many of which come from rural counties in the South. In one case in Swainsboro, Ga., the SPDC charged, the local prosecutor struck 10 of 10 blacks from the jury pool through use of his peremptory challenges, giving reasons such as "he appears to have the intelligence of a fence post" and "he looked a little slow." The SPDC also charged that the judge in the case was racially biased because he admitted having used racial epithets and because he belonged to an all-white country club.
Recent Supreme Court decisions limiting death penalty appeals on constitutional grounds have led to more aggressive legal strategies at the local level. The best capital murder defense is often the "scorched earth" defense, says Albert M. Pearson, a University of Georgia law professor and formerly the chief counsel to a committee headed by former Supreme Court justice Lewis Powell that studied the federal court review process for convicted death-penalty defendants. Stevenson and Bright use that approach, going into little towns and filing motion after motion, investigating the racial attitudes and behaviors of prosecutor and judge alike, charging violations of the Voting Rights Act if judges are elected in districtwide elections that dilute black voting strength. They mobilize black church leaders, hold rallies and fill the courtroom with black spectators. In Swainsboro, Amnesty International representatives even came to town and held a press conference at which Swainsboro was compared to South Africa.
"We are trying to make a poor black man accused of murder be just like the mayor's nephew, somebody with clout," says Stevenson. But such scorched earth tactics aren't popular with local lawyers appointed by a court to defend indigent clients.
"One of the most difficult things for a lawyer in a rural locale to do is go in and defend the hell out of a case," says Pearson. "The community is against you, and you have to live there and go before that judge again. My experience is that they don't usually do a constitutionally improper job, but they don't use the motion process to impose costs on the prosecutor that would cause him to be cautious in asking for the death penalty. There is a consensus nationally that the quality of representation in capital cases has got to be improved. The question is to what level. Does everyone have the right to have a Bryan Stevenson defend them?"
Some believe the situation is urgent. In a devastating expose' of how indigent capital murder clients are actually defended in the South, the National Law Journal last year concluded: "The surprising cause of this failure in fairness lies not in the riveting legal and moral questions that usually animate the death penalty debate but in the way the death penalty really works in the small-town courthouse." The Journal's six-month investigation by a team of three reporters found that trial lawyers representing death-row inmates in the six states they studied had been disbarred, suspended or disciplined at rates ranging from 3 to 46 times the overall rates for those states. More than half of the dozens of capital defense lawyers interviewed said they were handling their first capital murder case when their client was convicted. Capital murder trials in those states often took one or two days -- compared with two weeks to two months in states with sophisticated indigent defense systems. And the all-important penalty stage to set punishment took as little as 15 minutes to three hours, often with little or no defense lawyer effort to present mitigating evidence. Finally, the Journal found it was still common for blacks to be tried by all-white juries.
"There is a policy question of what's fair play," Pearson says of the present quality of defense counsel afforded indigent capital murder defendants. "There is no question that perfection is not now required." -- W.H.