In 1987, the U.S. Supreme Court, apparently accepting as correct
the evidence that the death penalty is unfairly and unevenly
imposed, nonetheless ordered a black defendant convicted of
murder to be executed.
This was the case of Warren McCleskey, the most important death
penalty case of our time. McCleskey was convicted in Georgia
of killing a white policeman. Opponents of the death penalty
chose this case to challenge the death penalty on the grounds
of its systematically discriminatory application. A major
study was conducted and reams of evidence was presented to the
court showing that black people convicted of murder of white
people were much more likely to be given the death penalty;
that blacks killing blacks and whites killing whites were
rarely executed; and (as we have just learned again in the
King case), whites convicted of killing blacks almost never
are given the death penalty.
The New York Times of April 23, 1987, reports, "While 60
percent of Georgia homicide victims are black, all seven
people put to death in Georgia's electric chair since the
1976 [Supreme Court] decision upheld the state's death penalty
law were convicted of killing white people; six of the seven
murderers were white."
Justice Powell, writing for the majority in the 5-4 case,
apparently accepted the validity of the studies presented
to the court, and even that some disparities are almost
certain to occur. But he said that the defendant "must
prove that the decision makers in *his* case acted with a
discriminatory purpose" by showing evidence specific to
the case; a generalized study showing statistical
disparities was not enough.
Since showing that the police, prosecutors, judges, juries,
and others acted out of prejudice is almost impossible in
most cases, we continue executing primarily black men,
and disproportionately black men convicted of killing whites.
I'd like to add that there is a parallel between this
Supreme Court decision on the one hand and our enforcement
of anti-discrimination laws on the other. There have
historically been two legal standards for enforcing
anti-discrimination laws. One is called "disparate impact"
and the other is called "disparate treatment".
Under disparate impact, to show discrimination in employment,
for example, it is only necessary to show a pattern of
employment which is unlikely to result from chance. Suppose
it can be shown that 20% of those qualified to be firefighters
are black, but only 1% of those hired as firefighters over
a 10- or 20-year period are black. That would qualify as
evidence of discrimination. Prior to the Reagan years,
this standard was the main one, and it made civil rights
enforcement possible.
Under disparate treatment, each person alleging discrimination
must bring his or her case individually, and has to demonstrate
that his or her own specific treatment was in some way
discriminatory. That is very much harder to do, but in most
(though not all) cases disparate treatment is the standard
applied. This has made the civil rights laws much harder
to enforce, and has to an extent repealed the laws that many
struggled in the 1960s to get passed.
It's a really frightening parallel that the prevailing law
applies the same "disparate treatment" standard to showing that
there is discrimination in the application of capital
punishment. As long as the McCleskey decision stands, there
is no obvious barrier to continuing to use the justice system
to kill primarily black men.
Dale
A. Dale Tussing, Ph.D.
Professor of Economics
Syracuse University
Syracuse, NY 13244
Voice: 315-443-2642 Fax: 315-443-3717
