1991 and the Racial Justice Act

Continuing from the last post on the battle between Joe Biden and Pres. H.W. Bush, with each claiming to be tougher on Crime: There was one voice of reason at the hearing: Sen. Howard Metzenbaum of Ohio. Here's what he said about why the Racial Justice Bill should not be dropped from the new bill that would implement 30 to 50 new death penalty offenses: (Cite is 137 Cong Rec S 8263

Mr. METZENBAUM. Mr. President, I rise to oppose any effort to remove the Racial Justice Act amendments from the death penalty provisions of the crime bill. If a crime bill with numerous death penalty provisions is to pass this body, it is critical that we deal with the obvious discriminatory nature of death penalty sentences.

The Racial Justice Act has nothing to do with whether you are for or against the death penalty. It is about racial discrimination.[more...]

We, as a society, have determined correctly that racial bias should not influence such questions as who should get a job, who should vote, who should buy a house, or who should get a fair trial. It is time for Congress to make it clear that racial bias should not affect the question of who gets executed in this country. That is exactly what the Racial Justice Act does.

It creates a Federal right to a capital sentencing process that is unsullied by race discrimination. It is premised on the simple idea that it should be no more difficult to prove discrimination when a person's life is at stake than it is to prove bias when a person's job or right to vote is at stake.

If we are going to have a death penalty, it is absolutely critical that we do everything possible to ensure that criminal defendants are not wrongly or unjustly executed. We cannot attain that level of certainty unless we are sure that capital sentencing procedures are free from racial bias. That is what the Racial Justice Act is designed to do.

Our criminal justice system is far from infallible. Since the turn of the century, there have been over 350 instances in which defendants in this country were wrongly convicted of homicide and rape, and sentenced to death. At least 23 of these innocent people were actually sent to their death by our Government-23 men sent to their death. They were not guilty. It was a mistake. These mistakes were made for a number of reasons. Adding racial discrimination to the equation only increases the likelihood that juries will mistakenly or unjustly send people to their death.

Any discussion of this issue cannot ignore the shameful history of this country's treatment of Afro-Americans. In particular, there is a long history of discriminatory treatment in the enforcement and prosecution of criminal laws and the application of the death penalty. Beginning with the slave codes of colonial days, blacks faced criminal penalties for conduct which was legal for whites and they faced more severe punishment than whites when both committed the same offense. Some offenses constituted capital crimes only when committed by Afro-Americans or blacks.

With the passage of the 13th amendment, the slave codes were replaced by black codes which contained these racially discriminatory practices.

The 14th amendment abolished the black codes and supposedly guaranteed equal treatment under the law for blacks. But as we all know, that goal has not been fulfilled.

Mr. President, we need to confront the fact that in many parts of the country our criminal justice system operates primarily against racial minorities and the poor in our society. The Los Angeles Times reported that although-

...it is clear that whites sell most of the nation's cocaine and account for 80 percent of its consumers, it is blacks and other minorities who continue to fill up America's courtrooms and jails.

One out of four black males in their twenties is either in jail or on probation or parole. A black male in his twenties is more likely to be caught up in the criminal justice system than to be in college. A Florida study found that black women are 10 times more likely to be turned over to child abuse authorities for substance abuse during pregnancy than are white women.

The police chief in Atlanta has wondered aloud whether our approach to crime would be different "if we started to put white America in jail at the same rate that we're putting black America in jail."

Mr. President, the New York police commissioner has suggested that we need to conduct a thorough study regarding race in the criminal justice system. I think that is appropriate. But I also think that at the very least the U.S. Senate must today make it clear that we want a capital sentencing process that is free of any hint of racial bias.

We in Congress have repeatedly sought to remedy racially discriminatory behavior when it occurs, whether it be in hiring, housing, or in education. For too long, however, we have ignored bias where it is a matter of life or death. When blacks are being sent to their death by our criminal justice system for conduct which would not result in capital punishment for a similarly situated white, when killing a white is four times more likely to result in a death sentence than killing a black, then it is time we act. The Racial Justice Act amendments of the crime bill are an important step toward remedying these injustices.

A study of this problem is not the answer. That will not resolve the issue. All it will do is postpone the deliberation and the determination as to what is the proper action for the Congress to take.

There can be little doubt that the death penalty is applied in a racially discriminatory manner. A General Accounting Office study found that since 1972 there has been a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty. That, from the General Accounting Office, is certainly an objective source.

This discrimination takes two forms: One kind is race of victim discrimination; and the other is race of defendant discrimination.

As to the first, the unfortunate fact of life is that juries in this country do not value the life of a black as highly as they value that of a white. Since 1976, when the death penalty was reinstituted 85.3 percent of the time that a person was executed, it was for killing a white person. Only 11 percent of the executions were for killing a black, and then only where the defendant was also black.

Mr. President, may we have order in the Senate?

Mr. President, I sought order because the next sentence I am about to make is an astounding one. Incredibly, there is not a single instance of a white being executed for killing a black. Never has a white been executed for killing a black.

Even more stark are some of the individual State statistics. A study of the Georgia system showed that white victim cases were over four times more likely to produce a death sentence than black victim cases. OK to kill a black, not OK to kill a white.

The other type of discrimination in capital sentencing involves discriminating against black defendants. Let me give some examples from the States. In a judicial district in central Georgia, the district attorney has sought the death penalty in 28 cases since taking office in 1974. In 22 of 28 cases, the defendant was black.

In Philadelphia, a single judge is responsible for sentencing 26 people to death. Of the 26, only 2 were white. Clearly, something is wrong with the system. Do not give me the argument that blacks commit more crime. The fact is blacks commit crime, and the whites commit crime. But the fact is we handle the matter differently when it comes to trying blacks and whites, and we make a big distinction when the victim is black instead of the victim being white.

[cites a long example]

I could cite other specific examples where racial bias has clearly tainted a particular death sentence. For example, Roosevelt Wilson, a black man, was sentenced to death for rape in Alabama in 1937. Despite claims that the victim consented and despite the fact that the jurors later said they believed the act was consensual, the jury still found that Wilson deserved to die simply for messing around with a white woman. Think of that. The jury felt that Wilson deserved to die because he had an affair with a white woman, messing around with her.

Another example comes from Louisiana. In 1953, Edgar Labat and Clinton Poret, two black men, were sentenced to death for raping a white woman and robbing her male friend. After a dozen of stays of execution and 16 years on death row, they were released because witness' testimony unraveled, alibi witnesses came forward, and evidence showed that one of the defendants had been beaten into confessing.

What we are going to be doing here on this crime bill, Mr. President, is we are going to refuse to take into account the racial justice aspects; but we are going to do something more, because that particular defendant probably would have been dead and gone a long time before, had there been in the law at that time the denial of the right of habeas corpus that is about the become the law, if so many in this Senate move in that direction today, or the first of next week.

Two black men, Robert Shuler and Jerry Chatman, were sentenced to death in Florida in 1960 for raping a white woman. They were freed in 1972, 12 years later, after it was proved that police had suppressed evidence and that plaster foot casts introduced at the trial had been made in the deputy sheriff's backyard.

Mr. President, I could stand here for another 2 hours citing other such miscarriages of justice. But the fact is that racial bias is often not as blatant as it was in the case of Brandley, of these others that I mentioned. That is why we need the Racial Justice Act. Even this Supreme Court, which has weakened antidiscrimination laws, acknowledges that in the voting rights and employment contexts, a prima facie case of racial bias can be established based upon a showing that a pattern of discrmination results from the application of particular practices.

But the Supreme Court's 5 to 4 decision in McCleskey versus Kemp means that, in the context of the death penalty, a prima facie case of racial bias can never be established by evidence which shows that there is a pattern of discrimination in the application of the death penalty.

In other words, the Supreme Court is willing to overlook evidence of racial bias in the capital sentencing context that has determined should not be overlooked in the employment or voting rights context. The Senate should not make that same mistake.

The Racial Justice Act prevents the use of the death penalty where it can be shown that the penalty has been applied in a racially disproportionate way and there are no pertinent nonracial explanations for this disproportionate application.

In so doing, it addresses the results of discrimination, rather than trying to pinpoint the causes which, as we know, are sometimes too subtle to identify.

The Racial Justice Act only requires what is fair and just, but that seems to be too much for some people. I would be remiss if I did not take note of the rhetoric of those who oppose the Racial Justice Act. Attorney General Thornburgh opposes this amendment and has said, "The Racial Justice Act cannot fairly be characterized as in any sense a civil rights measure."

Frankly, Mr. President, I have to wonder whether the Attorney General knows anything about civil rights. There is not a single scintilla of evidence that he has any sensitivity at all to the issue of civil rights, as evidenced by his opposition to the civil rights bill here in the U.S. Senate, and as evidenced by his comments concerning the Racial Justice Act.

Does the Attorney General really believe that there are no civil rights concerns raised by the evidence and studies which show that racial considerations influence whomever receives the death penalty? Is the Attorney General blind? Is he deaf? Can he not read the evidence that has been proven time and time again by independent sources?

Does the Attorney General Thornburg believe that it is acceptable for black people to be executed more frequently than whites, or that killers of whites should be executed more readily than killers of blacks?

Furthermore, if this is not a civil rights bill, why do I hear it attached by the administration, absurdly, as a quota bill? How absurd can the White House be getting? The administration's automatic response to any civil rights bill proposed by the Congress is to label it a quota bill.

Obviously, this measure will work to reduce discrimination. Otherwise, the administration would not feel compelled to trot out its favorite attack line.

Mr. President, it is tempting to toss aside constitutional safeguards in order to punish individuals accused of heinous crimes. Sometimes we are inclined to do that. Emotionally, sometimes we feel that way. But that is not how constitutional democracies operate.

The process by which we decide who shall suffer the death penalty tells us much about the character of this body and the character of this Nation. Surely, we have enough character to ensure that this process is free of racial bias.

I urge my colleagues to support the Racial Justice Act. I hope that my colleagues will not see fit to delete that portion of the bill, and I hope my colleagues will recognize that a study of the issue is not the answer; it is time to enact the Racial Justice Act.

I yield the floor.

The bill did not pass.

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  • Display: Sort:
    What is disproportionate? (none / 0) (#1)
    by Abdul Abulbul Amir on Tue Aug 04, 2015 at 10:21:09 AM EST
    Blacks commit about 50% of the homicides.

    While three white killers get the needle for every two black killers.

    To achieve more proportionate capital sentencing, more blacks will need to get the needle.  Is that really what you want?

    Add to that homicides are not fungible.  Lumping the sentencing outcomes for bar fight homicides with contract killing and multiple victim outcomes is misleading at best and dishonest at worse.

    As Mark Twain erroneously claimed (5.00 / 5) (#2)
    by Peter G on Tue Aug 04, 2015 at 05:15:02 PM EST
    that Benjamin Disraeli once said, there are lies, damn lies, and statistics. Just f'rinstance: (a) you have conflated all arrests for homicide, with commission (or possibly with conviction) for capital murder, i.e., the most aggravated cases of first degree murder; and (b) because prosecutors and juries consistently value black lives less highly than white lives (also borne out by your own second link), coupled with the fact that intra-racial killings are far more common that inter-racial, killers of black victims (i.e., black murderers, disproportionately) are more likely to get life sentences and less likely to get death sentences than white. The inference you draw from the statistics you cite, AAA, is entirely wrong.

    So the bottom line remains (none / 0) (#3)
    by Abdul Abulbul Amir on Tue Aug 04, 2015 at 11:33:23 PM EST
    Blacks commit more homicides than whites per the FBI, but more whites get the needle. This proves discrimination against blacks!  

    I note your (b) study was limited in regression analysis to forty some factors the authors imagined to be important.  Selection bias at its best.


    No one but you (and any crackpot source (5.00 / 3) (#4)
    by Peter G on Wed Aug 05, 2015 at 10:04:54 AM EST
    you are echoing) has claimed that the two essentially unrelated statistics you cite prove the conclusion you assert (and baselessly imply was Jeralyn's rationale). The fact that racial discrimination is structurally embedded in the criminal justice system, and is ineradicable from the capital punishment system, has been established statistically by every serious study (including the extraordinarily meticulous 40-factor regression analysis by Prof. Baldus) that I am aware of having been done on the subject, including many since then. If you can point to any professionally competent critique of the Baldus study for selection bias or on any other basis, I would be very surprised. If the point of your comment is either that African Americans, as a group, are more inclined to be violent criminals than whites and/or that judges and juries, on the whole, are biased against white people convicted of capital murder, as compared with black defendants, there's no point in pursuing this further.

    If the justice system values black life... (5.00 / 3) (#5)
    by Dadler on Wed Aug 05, 2015 at 10:39:10 AM EST
    ...far less that it values white life, which IMO (and your links also indicate, as Peter noted) it certainly does, then you would be less likely to get the death penalty for killing a black person than a white person. As such, because most murder is intra-racial, a FAR fewer number of those black-on-black murderers would get the death penalty. I.E., if blacks want to "get the needle" more, they need to start murdering more white people. And this is pretty obvious.

    IOW, wretched and absurd and inexcusable prejudices and inhumanities infect our justice system from top to bottom.


    If that were the only factor being considered (none / 0) (#7)
    by Abdul Abulbul Amir on Thu Aug 06, 2015 at 09:13:00 AM EST
    then maybe so.  But the implied assertion that all factors are equal (and they never are) other than race is a crock.

    You unfortunately seem to have no idea (none / 0) (#9)
    by Peter G on Thu Aug 06, 2015 at 10:50:21 AM EST
    what a 40-factor multiple regression analysis is, then. Nor the significance of the large sample size against which the analysis was run.

    "limited to forty some factors" (none / 0) (#11)
    by Mr Natural on Thu Aug 06, 2015 at 01:00:46 PM EST
    Yeah, that's some limit.

    You can't have it both ways (none / 0) (#14)
    by Jack203 on Mon Aug 10, 2015 at 10:36:53 PM EST
    "There are lies, damn lies and statistics."  So ignore those statistics that detract from my argument and look at these statistics that further my argument....

    I'll look at them both and make my own conclusion.


    Personal note: (none / 0) (#6)
    by Green26 on Wed Aug 05, 2015 at 08:20:49 PM EST
    I worked on Sen. Metzenbaum's first winning campaign for U.S. Senate. He had run twice previously.  Howard was a nice guy and a very strong liberal. Had a nice family too.  Here's a trivia question/answer: one of Metzenbaum's son-in-laws co-founded CurrentTV with Al Gore.

    I know (none / 0) (#8)
    by Peter G on Thu Aug 06, 2015 at 10:48:39 AM EST
    (law school classmate). Not going to say, though, in this forum.

    Yale law school? (5.00 / 1) (#10)
    by Green26 on Thu Aug 06, 2015 at 11:59:21 AM EST
    Cool. College roommate for me.

    I don't know him (none / 0) (#12)
    by Reconstructionist on Thu Aug 06, 2015 at 03:12:23 PM EST
     but Joel Hyatt was one of the first lawyers to do national advertising. I won't hold it against him despite what it led to.

    True (none / 0) (#13)
    by Green26 on Thu Aug 06, 2015 at 07:20:00 PM EST
    When the US Supreme Court case allowing advertising came down in mid 1977, he quit his job at Paul Weiss in NYC to move back to Cleveland to start the business. He eventually sold the business to MetLife. He then was the Democratic nominee for US Senate in Ohio, trying to replace Metzenbaum. Lost, as did all of the Democrat non-incumbents in Clinton's first midterm election. Then moved to Silicon Valley. Was Gore's primary fundraiser in the Western part of the US.