The fallacy of the Racial Justice Act


OPPONENTS OF the death penalty once argued that execution was unconstitutional because blacks were more likely to be hanged than whites for the same crimes.

That turned out not to be true. The data showed the reverse in fact. Whites were somewhat more likely to be put to death than blacks for the same crimes.

The anti-death penalty crowd then changed tactics. Well, they said, it isn't the race of the criminal that betrays the system's institutional racism, it is the race of the victim. The National Association for the Advancement of Colored People, among others, advanced the claim that when the victim of a murder was white and the perpetrator black, the death penalty was more likely to be meted out than if the victim and killer were both black.

As is so often the case with data provided by leftist groups, the mainstream press swallowed these claims uncritically. The New York Times, for example, in a story on the Racial Justice Act, pronounced, "That some bias occurs is not much at issue. Many studies show that juries mete out the death penalty to black and other minority defendants in a disproportionate number of murder cases, particularly when the victims are white . . ."

Those assertions may well be false. Professor Stanley Rothman and Stephen Powers, writing in the summer issue of Public Interest, analyze the available data and come to the conclusion that racial bias is probably not a factor in sentencing.

Between 92 percent and 97 percent of homicides are intra-racial, blacks killing other blacks and whites killing other whites. In cases of interracial murder (usually black-on-white, rarely the reverse), the crimes tend to have a different character. Black-on-black murders, like white-on-white murders, tend to occur between people who know each other and often follow a quarrel (73 percent in one study), whereas black-on-white crimes more often involve other felonies, like kidnapping, rape, armed robbery and mutilation. The Supreme Court has held that such "aggravating" factors may be taken into account in sentencing.

You can look at data showing that black murderers more often hang for killing whites than for killing blacks and conclude that racism must be at work. That's what the NAACP, the Congressional Black Caucus (which has been pushing the Racial Justice Act) and others have done. But Messrs. Rothman and Powers have found many other variables at work -- so many, in fact, that it's impossible to say that racism accounts for disparate sentencing.

Juries are more likely to put murderers to death for killing policemen. Eighty-five percent of policemen killed in the line of duty have been white.

Moreover, the studies that have been cited for the proposition that blacks are more likely to be sentenced to death if they kill whites did not control for factors like previous criminal record, degree of criminal intent and heinousness of the crime (a difficult thing for social science to measure anyway).

Some of the data, far from supporting the proposition that blacks suffer from discrimination in the criminal justice system, point to the reverse. According to the Bureau of Justice Statistics, a division of the Justice Department, the percentage of inmates on death row who are black (42 percent) is lower than the percentage of black criminals who are charged with murder (48 percent).

If the system were biased against blacks, the percentages ought at least to be reversed. (Yes, the Justice Department also investigated the possibility that more blacks are arrested and charged due to bias but could not find any evidence to support that idea either.)

The Racial Justice Act, part of the omnibus crime bill that also contains midnight basketball, therapy for youthful offenders and early childhood education funds, would make it virtually impossible to impose the death penalty on anyone. Republicans have threatened a filibuster in the Senate if it isn't removed or altered.

In 1992, there was general rejoicing in Democratic circles that the era of gridlock had ended and that government was finally unleashed to do good for the American people. Their idea of "good" is written into legislation like this -- founded on fallacy and thwarting the will of the majority.

Mona Charen is a syndicated columnist.

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