TIME: Almanac 1993/TIME Almanac 1993.iso/time/042991/0429110.000

Text File | 1992-08-28 | 10.0 KB | 200 lines

                                                                                LAW, Page 68

Race and the Death Penalty


A high-court move to halt repeated appeals stirs concern about
an arbitrary process

By JILL SMOLOWE -- Reported by Jonathan Beaty/Los Angeles, Cathy
Booth/Miami and Julie Johnson/Washington


    "The death penalty symbolizes whom we fear and don't fear,
whom we care about and whose lives are not valid," says Bryan
Stevenson, the director of Alabama's Capital Representation
Resource Center. Fair enough. Just whom do Americans fear -- and
whom do they care about? The answers to these questions of life
and death lie in a set of dry but startling statistics:

    -- Of the 144 executions since the 1976 reinstatement of
the death penalty in the U.S., not one white person has been
executed for the killing of a black.

    -- In those 144 killings, 86% of the victims were white,
although roughly half of all murder victims in the U.S. are
black.

    -- Of the 16,000 executions in U.S. history, only 30 cases
involved a white sentenced for killing a black.

    Yet when Warren McCleskey, a black death-row inmate in
Georgia, petitioned the Supreme Court in 1987, arguing that his
capital sentence should be overturned because the race of his
white victim played a significant role in his sentencing, his
claim was rejected. Presented with data demonstrating that
murderers of whites are four times as likely to receive the
death penalty as murderers of blacks, the court allowed that the
link between a victim's race and the imposition of the death
penalty was "statistically significant in the system as a
whole." But, the court concluded, no petitioner could rely
exclusively on such statistics to show that "he received the
death sentence because, and only because, his victim was white."

    Last week McCleskey again petitioned the Supreme Court.
This time he sought to have his conviction reviewed on the
ground that his constitutional right to counsel had been
violated when the police used a jailhouse informer to obtain a
confession from him; this time the court was even sterner in its
rejection. In a 6-to-3 ruling, the majority said such repeated
petitions as McCleskey's "threatened to undermine the integrity
of the habeas corpus process." Then the court set tough new
standards that severely curtail a state prisoner's ability to
bring claims of violations of his constitutional rights before
a federal court.

    Legal experts who believe the death penalty in the U.S. is
applied in an unjust and arbitrary fashion are further alarmed
by this latest ruling. "When you cut back on procedural grounds,
you're talking about preventing discussion of disputes that may
shine a light on various areas of the criminal-justice system
that are going awry," says Randall Kennedy, a professor at
Harvard Law School. "Who's going to shine a light on the way the
system works other than the people enmeshed in it?" Gerald
Chaleff, one of Southern California's top criminal-defense
attorneys, warns, "You judge a society by how it imposes its
harshest penalty, and in the U.S. we are now in a rush to see
that it happens quickly rather than that it happens fairly."

    In many of the 36 states that have capital-punishment
statutes, the decision concerning who shall live and who shall
die often has disturbingly little to do with the heinousness of
the crime. More pertinent factors commonly involve the race of
the victim and the competence of the defendant's counsel. Many
legal experts believe the race of the defendant also plays a
role -- 12% of the U.S. population is black, though blacks
constitute 50% of death-row inmates -- but the evidence is
equivocal. "The trouble with the death penalty is that it's like
a lottery," says law professor Steven Goldstein of Florida State
University. "There are so many discretionary stages: whether the
prosecutor decides to seek the death penalty, whether the jury
recommends it, whether a judge gives it."

    Nowhere is that point illustrated more starkly than in
Columbus, Ga. Since Georgia adopted its current death-penalty
law in 1973, four white men in the Columbus district attorney's
office have decided which murders will be prosecuted as capital
crimes. To date, 78% of their cases have involved white victims,
although blacks are the victims in 65% of the community's
homicides. Among the other factors that may create greater
sympathy for a white victim or defendant: all four judges in the
state superior court, which tries capital cases, are white, and
often the juries are all white, although blacks account for 35%
of the Columbus population.

    Given the odds stacked against black defendants who kill
whites, the results are perhaps predictable. Last February two
men were convicted of murder in separate trials in Columbus.
James Robert Caldwell, a white defendant, was found guilty of
raping and murdering his 12-year-old daughter and repeatedly
stabbing his 10-year-old son. His sentence: life imprisonment.
Jerry Walker, a black, was convicted of murdering the
22-year-old son of a white Army commander at nearby Fort Benning
during a convenience-store robbery. His sentence: death.
Caldwell's trial lasted five weeks. Walker's lasted 12 days. His
jury deliberated for 97 minutes. Says Stephen Bright of the
Atlanta-based Southern Prisoners' Defense Committee: "The death
penalty was imposed not for the crime in Walker's case but
because of the race and prominence of the victim's family."

    Columbus is not alone in its skewed application of
justice. A 1990 report prepared by the government's General
Accounting Office found "a pattern of evidence indicating racial
disparities in the charging, sentencing and imposition of the
death penalty." A midterm assessment of the Bush
Administration's civil rights track record issued last week by
the independent Citizens Commission on Civil Rights found a
similar "pattern of inequity" in death sentencing. Richard Burr
of the NAACP Legal Defense and Educational Fund's
capital-punishment project puts it more bluntly, "Prosecutors
frequently pay no attention to the families of black homicide
victims. They don't even stay in touch with them." Later this
year Congress will consider a measure that aims to enable
defendants to quash death-penalty sentences if they can provide
evidence demonstrating a racial bias in sentencing patterns.

    While Congress deliberates, defendants in capital cases
must make the best of often terrible circumstances. According
to the Washington-based Death Penalty Information Center, more
than 90% of the 2,400 men and women currently on death row were
financially unable to hire an attorney to represent them at
trial. A few states, most notably California, take pains to
ensure that defendants receive competent counsel. But in many
states, particularly in the South, there are no safeguards.
Because most states lack a public-defender system, courts
appoint lawyers arbitrarily. The result, says Bright, is that
"people aren't sentenced for committing the worst crimes;
they're sentenced for having the worst lawyers."

    Often the lawyers tossed into capital cases are either the
most inexperienced, the most jaded or the most unethical. A
1990 investigation conducted by the National Law Journal found
that lawyers who represented death-row inmates in six Southern
states had been disciplined, suspended or disbarred at a rate
of up to 46 times that of other attorneys in those states. In
Louisiana, the state with the highest rate of disciplinary
action against death-row trial lawyers, the average length of
a capital trial is just three days, and the average penalty
phase lasts just 2.9 hours.

    Small wonder, given how ill-prepared many of the defense
lawyers are when they enter the courtroom. Some of these
attorneys meet their clients for the first time on the day of
arraignment. More than half the lawyers are handling a capital
case for the first time. Some have drinking problems; others
have decided biases. One Louisiana defendant learned that his
lawyer was living with the prosecutor. A Florida man discovered
that his public defender was a deputy sheriff. In Georgia, Eddie
Lee Ross was defended by a white attorney who referred to Ross
as a "nigger" and had been the Imperial Wizard of the local Ku
Klux Klan for 50 years. Ross now awaits the electric chair.

    Even court-appointed lawyers with good intentions are
hampered by stingy allowances. Many work in states where there
is a cap on both fees and legal expenses. Arkansas imposes a
$100 limit on expenses and a $1,000 maximum on lawyer's fees.
California, by contrast, routinely approves two lawyers for
capital cases, pays them each an average of $75 an hour, and
covers expert services, such as private investigators, which
typically add $5,000 a month more to the defense tab. The state
bill in an uncomplicated case comes to about $25,000, whereas
in Arkansas, says Stevenson of the Resource Center, "we're
asking lawyers to work for $1 an hour." Next month two Arkansas
attorneys will challenge the cap before the state supreme court.

    This week the U.S. Supreme Court will hear arguments in
the case of Payne v. Tennessee about the value of
"victim-impact evidence." On two prior occasions, the high court
ruled that at the time of sentencing in capital cases, it is
improper to introduce testimony dealing with the impact of a
crime on a victim's family. The Bush Administration is sending
no less a figure than Attorney General Dick Thornburgh to the
court to argue for Tennessee's position allowing such impact
evidence. After last week's ruling in the McCleskey case, many
legal experts are concerned that the Justices this time will
side with Tennessee. "The court is quite systematically knocking
out regulations, streamlining the road to the electric chair,"
says Harvard's Kennedy. In the rush to make the process more
efficient, the rights of criminal defendants are getting
battered.