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The role of racial bias in the administration of justice has been the subject of extensive and often controversial research in the USA. Numerous studies have found empirical evidence of disparate treatment of criminal defendants on the basis of ethnic origin. Critics of these findings argue that the statistical results are skewed by factors such as the generally higher crime rates in ethnic communities or poor methodology in the research. Nonetheless, many social scientists have concluded that, when compared to white defendants, minority groups face a greater likelihood of imprisonment and serve longer sentences for identical offences.
In 1998, the Presidential Advisory Board on Race recognised that these discrepancies in the incarceration rate could not be explained solely by the higher crime rates in ethnic communities:
"These disparities are probably due in part to underlying disparities in criminal behavior. But evidence shows that these disparities also are due in part to discrimination in the administration of justice and to policies and practices that have an unjustified disparate impact on minorities and people of color."
The Board had been deliberately excluded from examining capital punishment, at least partially because of the perceived public support for the death penalty (see page 23).
While controversy continues to surround many of the issues involving race and the criminal justice system, the findings in one area of study are virtually unanimous. Research
into the death penalty over the past two decades has consistently shown a pattern of sentencing anomalies which cannot be explained without reference to racial factors. These non-judicial variables are particularly pronounced when the race of the defendant is linked to that of the victim.
As of 1 January 1999, 3,549 prisoners remained under sentence of death in the USA. Slightly more than half of all death row inmates are people of colour, a number roughly proportional to the overall conviction rates for all categories of homicide. But beneath the surface, glaring inconsistencies appear which strongly indicate that the imposition of death sentences is often influenced by the ethnic background of the defendant and the victim. Of the 500 prisoners executed between 1977 and end of 1998, 81.80 per cent were convicted of the murder of a white, even though blacks and whites are the victims of homicide in almost equal numbers nationwide. In 1972, the US Supreme Court ruled that
the administration of the death penalty was unacceptably arbitrary and declared all existing state statutes to be unconstitutional. Four years later, the Court approved new trial and sentencing procedures intended to ensure that the death penalty would be imposed in a con sistent and rational manner, by fairly distinguishing the few murder cases which met the criteria for death sentences from the many which did not. However, research in the years following that 1976 decision continued to show a disproportionate number of death sentences imposed on minority groups, as well as wide geographic variations in its application within some states.
One landmark study of death sentencing patterns in Georgia is particularly noteworthy, both for its thoroughness and its profoundly disturbing conclusions. Professor
David Baldus and his colleagues examined more than 2,000 murder cases, including those before and after judicial reforms in 1973 intended to prevent discriminatory sentencing. The survey found that the frequency of cases in which death sentences were obviously excessive declined following the reforms. However, after accounting for some 200 variable factors in each case (such as the depravity of the crime or previous criminal record of the defendant) a clear pattern of racial disparities remained. When all conceivable legal factors were accounted for, the odds of a death sentence were four times higher for cases with white victims than for cases with black victims. The odds of a death sentence in cases in which blacks killed whites were as much as 11 times higher than the capital murder of a black victim by a white person.
A report released in June 1998 by the Death Penalty Information Center summarized the research to date and reached the conclusion:
"Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, while racism in the death penalty has been largely ignored..."
Confronted with credible empirical evidence of racial discrimination throughout the capital justice process, the response of most state and federal authorities has been to enter a state of denial. Far from restricting its use, political leaders across the USA are expanding the application of the death penalty, thereby increasing the risk of its use in a discriminatory manner.
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