The Racial Justice Act was intended to nullify the Supreme Court's ruling by explicitly allowing statistics to be the basis of death penalty appeals. The act was passed by the House, but omitted from the final crime bill being considered by Congress. The Congressional Black Caucus agreed to drop the Racial Justice Act from the crime bill after President Clinton promised to use executive orders to achieve the same result on the federal level. The act likely will surface again in Congress in one form or another.

Is death sentencing really racially discriminatory? Those who claim there is a pattern of discrimination are ignoring a host of studies that show otherwise. When all relevant factors are taken into account, there is no relationship between race and the likelihood of any particular sentence.

Abolishing the Death Penalty.

Studies of the Death Penalty: Race of the Criminal.

In a similar vein, a 1981 study by Gary Kleck of Florida State University found that between 1929 and 1966 the rate of execution for blacks (9.7 per 1,000 murders) was slightly lower than that for whites (10.4 per 1,000 murders). Indeed, Kleck observed that outside of the South, the probability that a white would be executed was substantially higher than the risk for nonwhites. Since then, many other studies have found that white defendants are at greater risk in murder cases than black defendants.

Studies of the Death Penalty: Race of the Victim.

First, interracial killings are rare. Between 92 and 97 percent of homicides involve whites killing whites or blacks killing blacks. Second, in the small number of interracial slayings (the vast majority being blacks killing whites), the circumstances surrounding the crimes appear to be substantially different. Black on black homicides are most likely to occur during altercations between persons who know each other. Black on white homicides (and to a somewhat lesser extent, white on white homicides) are often committed during the course of a felony or by a multiple offender. Judges and juries are more likely to render harsher verdicts if the victim is an innocent store owner or a police officer than if the victim dies as a result of a bar fight with the accused. Finally, other factors such as a defendant's prior criminal record are important.

The McCleskey Case.

An expert methodologist, Joseph Katz, analyzed the NAACP study for the prosecution and found a number of conceptual and methodological problems. Most importantly, Katz argued that the researchers had not accounted satisfactorily for the fact that black on white murders tended to be the most aggravated of all and frequently were combined with armed robbery, as McCleskey's was. This was the case that resulted in the Supreme Court ruling that statistics were not enough to prove racial discrimination. Katz later told the Senate Judiciary Committee that:

• 67 percent of black on white killings in Georgia involved armed robbery.
• Only 7 percent of black on black killings involved armed robbery.
• Black on white murders more frequently involved kidnapping and rape, mutilations, tortures or beatings or were carried out execution-style.

Politics and the Death Penalty.

Of course, many questions remain. Is the death penalty arbitrary, given that only a fraction of those eligible are ever executed? Is it barbaric? Is it ineffective as a deterrent? If the answers to these questions are affirmative, the death penalty can be either abolished or further reformed. But whatever society's decision, it should not be based on unsubstantiated charges of racial discrimination.

By Stanley Rothman and Stephen Powers, Center for the Study of Social and Political Change, Smith College, based on "Execution by Quota? - in The Public Interest, Summer 1994.

Note: Nothing written here should be construed as necessarily reflecting the views of the National Center for Policy Analysis or as an attempt to aid or hinder the passage of any legislation.