Last week the Florida legislature entered the 21st century by voting to replace the electric chair with a more modern method of execution, lethal injection. Florida was one of only four states that still used the electric chair, and it abandoned the chair only after two gruesome incidents of malfunctioning and a Supreme Court decision to hear a case challenging Florida's use of electrocution as an unconstitutional imposition of cruel and unusual punishment.
But while Florida was willing, under tremendous public pressure, to reconsider the technique by which it executes persons, it refused to allow consideration of a much more important question--racial disparity in how it administers the death penalty. The legislature voted to reject an amendment that would have allowed defendants to challenge the imposition of the death penalty if they could show racial disparity in its administration and the state could not explain the disparity.
In reaching these decisions, Florida brought itself into line with the rest of the nation. While all but three states have now jettisoned the electric chair, only one--Kentucky--allows death-row defendants to challenge racial disparities in capital punishment.
It has long been known that race--particularly the race of the victim--infects the decision of who lives and who dies in our criminal justice system. In the 24 years since the death penalty was reinstated by the Supreme Court, 143 black persons have been executed for killing white victims, while only 11 whites have been put to death for killing a black victim. More than 80 percent of those on death row are there for killing a white person, even though whites make up only half the homicide victims each year. A 1991 study of Florida's death penalty found that persons who killed whites were 3.4 times more likely to be sentenced to death than those who killed blacks.
Yet none of this is deemed relevant by our criminal justice system. Thirteen years ago, the Supreme Court in McCleskey v. Kemp considered a sophisticated statistical study of more than 2,000 murder cases showing that in Georgia, prosecutors sought the death penalty in 70 percent of the cases where blacks killed whites but in only 19 percent of the cases where whites killed blacks. Even after controlling for 39 nonracial variables that might possibly explain the differences, the study found that defendants charged with killing whites were 4.3 times more likely to receive a death sentence than those charged with killing blacks.
The Supreme Court said such evidence was insufficient to support an equal-protection challenge absent proof that an individual prosecutor in an individual case intentionally sought the death penalty because of race or that an individual jury imposed death because of race. Since criminal defendants generally are barred from seeking discovery about the prosecutor's or the jurors' motives, this showing is impossible without an admission of racism.
In reaching this result, the court acknowledged the breadth of racial disparity in criminal justice but cited that as a reason not to recognize disparity as a legal defense. Noting that racial disparities infect the entire criminal justice system, the court said that to recognize them as a constitutional matter would "throw into serious question the principles that underlie our entire criminal justice system." But the questions are already there--the only issue is whether the legal system will face up to them. Justice Brennan, dissenting, called the majority's rationale a "fear of too much justice." Because of the broad implications for recognizing racial disparity as a legal objection to the death penalty, the court said that "McCleskey's arguments are best presented to legislative bodies." But outside Kentucky, no one has accepted the argument. Congress repeatedly has refused to enact a statute authorizing defendants to raise these claims, and now Florida has refused to do so as well.
Whether we rely on race in choosing who lives and dies is ultimately far more important than whether we carry out executions by electricity or drugs. As long as we refuse to allow issues of racial disparity to be aired in the legal system, minorities will have no basis for faith in our legal system.
The writer is a law professor at Georgetown University.