November 17, 2000
By David A. Love
Is the federal government's application of the death penalty racist? Data recently released by the U.S. Department of Justice suggests that it is: Of the 682 defendants facing capital charges in federal cases since 1995, blacks, Latinos and other people of color made up 80 percent of the total.
Attorney General Janet Reno said she was "sorely troubled" by the racial disparities.
The government compiled extensive data on the racial, ethnic and geographic distribution of defendants in capital cases.
Over the past five years, 48 percent of those people whose cases were submitted to the Justice Department for review were African American, 29 percent Latino and 20 percent white. Of the 19 people currently sentenced to death under federal law, 15 are people of color. Thirteen of those are black.
Although the federal government has not executed anyone since 1963, this could change on Dec. 12, when Juan Raul Garza is scheduled to be put to death.
Reno, while disturbed by the numbers, is not willing to concede that the government is racially biased. Rather, as she said at the press conference held to announce the study, she believes that the overrepresentation of minorities in the federal death-penalty system is due to the social ills--such as poverty, drugs and lack of opportunity-- which disproportionately affect people of color and result in crime. The attorney general believes that the report requires further study.
But many believe the time for more study is over.
"The entire criminal-justice system is rife with racism, and this is nowhere more evident than in the administration of the death penalty," said Diann Rust-Tierney, director of the American Civil Liberties Union's Capital Punishment Project.
Based on the federal data, geography also plays a role in who is chosen to be executed on the federal level. Over the paste five years, a whopping 40 percent of the death-penalty cases submitted to the Justice Department came from a handful of jurisdictions: Puerto Rico, the Eastern District of Virginia, Maryland, and the Eastern and Southern Districts of New York.
The race of the victim also skews the balance of justice. The report noted that blacks were much more likely to face the death penalty for killing whites than were white defendants who killed minorities.
This bias is not exclusive to federal cases. It runs through the application of the death penalty at the state level.
For example, since 1972 more than 60 percent of murder victims in Georgia have been African American, but 20 of the 22 people executed during that time period were convicted of murdering whites, according to the American Civil Liberties Union.
According to the National Coalition to Abolish the Death Penalty, the killers of white victims in Illinois, North Carolina and Oklahoma are four times more likely to receive a death sentence than are those whose victims are black. This is five times more likely in Mississippi, and seven times more likely in Maryland.
The disparities alarm Rep. Jesse Jackson, Jr., D-Ill. "What is this, some form of natural selection?" Jackson said. Death penalty Darwinism? Death-penalty survival of the fittest?"
Jackson, along with Sen. Russell Feingold, D-Wis., has introduced legislation calling for a nationwide moratorium on the death penalty.
The American Bar Association, a body which does not take positions on the morality of capital punishment, has also asked President Clinton to declare a moratorium pending an extensive review. The association and others have found that poverty and the quality of a defendant's legal representation, not the nature of the crime, are leading factors in deciding who is executed.
In 1994, Supreme Court Justice Harry Blackmun commented on the unfair application of capital punishment in the United States. Once a supporter of executions, he later became a death-penalty abolitionist.
"The effort to eliminate arbitrariness... is so plainly doomed to failure that it and the death penalty must be abandoned altogether," Blackmun said. "I may not live to see that day, but I have faith that eventually it will arrive."
This latest study should bring us close to that day.
David A. Love is a Public Interest Scholar at the University of Pennsylvania Law School. He contributed to the recently published book "States of Confinement: Policing, Detention and Prisons" (St. Martin's Press, 2000). He can be reached at email@example.com.