- The Washington Times - Sunday, June 1, 2003

More Americans are becoming uncertain as to whether the death penalty and our standard of “equal justice for all” are compatible. A new, extensively documented Amnesty International report on race as a factor in capital cases, “Death by discrimination,” begins with a challenging statement by Senator Russell Feingold, Wisconsin Democrat: “We simply cannot say we live in a country that offers equal justice to all Americans when racial disparities plague the system by which our society imposes the ultimate punishment.”

Amnesty’s report includes these cold facts: “The U.S. will soon carry out its 300th execution of an African-American prisoner since resuming judicial killing in 1977.” By April 10 of this year, “290 blacks had been put to death, and at least 10 more have scheduled execution dates by the end of July.

“African-Americans are disproportionately represented among people condemned to death in the U.S. While they make up 12 percent of the national population, they account for more than 40 percent of the country’s current death row inmates, and one in three of those executed since 1977.”

The U.S. Supreme Court addressed possible racial discrimination in capital cases in McCleskey v. Kemp (1987). McCleskey, an African-American, was convicted of armed robbery and murder in Georgia in 1978. Citing a report that indicated a disproportionate number of blacks were on death row in Georgia, McCleskey’s attorneys claimed that his pending execution was unconstitutional under the Eighth Amendment (opposing cruel and unusual punishment) or 14th Amendment (equal protection under the law).

In a 5-to-4 vote, the Court ruled that “apparent disparities in sentencings are an inevitable part of our criminal system.” In other words, for a defendant to win an appeal based on racial discrimination, the Court said that he or she must provide “exceptionally clear proof” that, in that particular case, discrimination had influenced the case’s outcome. The burden of proof, according to the Court, is thus on the prisoner on death row. This is due process turned upside-down.

But, as reported in law professor Stuart Banner’s “The Death Penalty: An American History” (Harvard University Press, 2002), one of the Justices, Antonin Scalia, in a memorandum circulated to his colleagues before the decision — said pessimistically that “the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable.”

Mr. Banner says that Scalia’s conclusion was that “racism and irrationality were facts of life, and that was that.”

However, Justice Lewis Powell, who actually wrote that majority decision in McCleskey v. Kemp, was troubled, on reflection: In Mr. Powell’s published biography, the justice, after he retired, wished he had voted differently in that crucial case. Furthermore, Powell had come to think that the death penalty should be abolished — too late, alas, for McCleskey, who was executed in 1991.

Justice Scalia, however, remains a firm supporter of capital punishment. But Amnesty International, commenting on Scalia’s conviction that racial antipathies are “ineradicable,” points out that “even if racism is ineradicable … the death penalty is not.” Justice Powell came to realize that, but there is not yet a majority on the Supreme Court that agrees with Powell.

Before his death, Justice William Brennan — a vigorous dissenter in the McCleskey decision — told me that “maybe it’s because it’s the way I want it to come out. I just have a feeling that the evolving standards of human decency will finally lead to the abolition of the death penalty in this country.”

“Do you realize,” Brennan said in wonderment, “that we are the only Western country that has not abolished the death penalty? I can’t believe that the leader of the free world is going to keep on executing people. I am absolutely convinced that its abolition will happen.”

There is increasing disquiet throughout the country, and even among some in Congress, as to whether there is equal justice on death row — and not only about racial disparities. However, there is not on the current Supreme Court any member who dissents in every capital case, as Brennan and Thurgood Marshall did. Justice Harry Blackmun also decided, late in his term, to “no longer tinker with the machinery of death.” The death penalty, he said, is unconstitutional. But, as Mr. Banner notes, “the rest of the Court (has) tinkered on.”

Since George W. Bush, as governor of Texas and as president, is an unapologetic supporter of the death penalty, it is highly unlikely that, in filling a vacancy on the Supreme Court, he will nominate anyone with a public record of affirming Blackmun, Powell or Marshall.

But there are signs that some governors are recognizing evolving standards of decency. On April 24, Democratic Gov. Rod Blagojevich of Illinois said that he will not lift the three-year-old ban on capital punishment put in place by former Gov. George Ryan. The new governor would like to be able to believe, he says, that the system won’t keep making mistakes.

But in his 2002 State of the Union address, Mr. Bush proclaimed that “America will always stand firm for the nonnegotiable demands of human dignity,” including “equal justice.”

But Mr. President, on death row, justice is often color-coded.

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