Tuesday, 11 December 2007

Discriminatory Justice: Flawed death penalty system values whites over blacks

09:04 AM CST on Sunday, December 9, 2007

When convicted murderer Larry Allen Hayes was put to death in 2003, he made headlines.

In Texas – the country's lethal injection leader – many executions draw relatively little notice. But Mr. Hayes was newsworthy: He was the first white Texan in decades to be put to death for killing a black person.

The state has executed 405 people since reinstituting capital punishment in 1974; Mr. Hayes is the only white executed whose victim was black, according to available records. And although earlier reports are incomplete, Mr. Hayes may be the only white to die for killing a black since the middle of the 19th century.

Earlier this year, this newspaper reversed its longstanding support for the death penalty because the process is both deeply flawed and irreversible. One of the most glaring defects in the system may be that deep-seated bias seems to play a significant role in life-or-death decisions.

In general, capital punishment has been meted out somewhat arbitrarily in our country, with factors such as politics and geography affecting the level of justice a murder victim's family can expect. But one detail has been a consistent predictor of who lives and who dies – race. Specifically, the race of the victim appears to have a profound impact on a killer's punishment.

Although whites and blacks are murdered in almost equal numbers, killers whose victims are white are about four times as likely to pay with their lives. A mountain of studies has reached the same conclusion: The judicial system discriminates.

In fact, an analysis by the Death Penalty Information Center found that the statistical correlation between race and the death penalty is stronger than the link between smoking and heart disease. While research about cigarettes and health problems spurred legal and cultural changes, the capital punishment studies are gathering dust.

The fact that blacks who kill whites are executed in disproportionate numbers is not in dispute.

When the U.S. Supreme Court rejected the appeal of a black man sentenced to death for killing a white police officer, the justices did not challenge the damning studies showing racial disparities in capital punishment cases. But in 1987, they ruled 5-4 that a larger pattern did not prove bias in an individual case.

Later, Justice Lewis Powell, who authored that decision, expressed regret and said he thought that capital punishment should be abolished.

Still, this decision has presented a significant obstacle for other defendants going forward. To those who point to racial disparity to challenge their death sentences, the courts seem to be saying: Even a confirmed pattern of unfairness does not establish that you have been treated unfairly.

Experts who have studied discrimination and the death penalty list an array of political and psychological factors that intrude on the judicial process. They point to all-white juries and mostly white prosecutors deciding whether black defendants should be put to death. They cite deep-rooted biases about race and class, tracing back to a time when certain crimes were punishable by death for blacks but not for whites. And they note the highly subjective nature of sentencing.

No doubt the reasons for the disparities are complex and not easily resolved. But instead of taking decisive action by calling a halt to this unfair punishment, Texas and other states continue to tinker with the apparatus of death. Right now, the Supreme Court is considering the merits of the particular cocktail of drugs used to dispense death sentences, but it is ignoring the bigger issue: Decades of evidence prove that the sentences are handed out unevenly and unfairly.

The underlying message is clear: Some lives simply are deemed more valuable by our deeply flawed justice system.

To impose an irreversible punishment in such an imperfect and discriminatory way is indefensible.

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