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There have been many unsuccessful attempts to legislate against the racist use of the death penalty. Proponents of Warren McCleskey's claims (detailed on pages 7 and 22) called on the US Congress to exercise its statutory authority to prohibit any unjustifiable racial disparities demonstrated through statistical evidence. In 1988, the Fairness in Death Sentencing Act (also known as the Racial Justice Act) was proposed. The legislation would have allowed capital defendants to challenge their death sentence by using statistical evidence of discriminatory practices.
Over the next few years, the Act was modified and regularly introduced in Congress. In 1990 it was passed by the US House of Representatives but defeated in the Senate. The Act was reintroduced in the Senate the following year as a provision of another bill. President Bush made it clear that he would prevent passage of the entire bill if the Racial Justice Act was not removed; the Senate promptly removed the legislation. Proposed again in 1994, the Racial Justice Act once more failed to become law.
Opponents of the Act appeared unconcerned at the compelling evidence of racial bias in the use of the death penalty. Instead, they assaulted the legislation through misrepresentation, by referring to the Act as "the Death Penalty Abolition Act", or implying that the Act would create death penalty "quotas" from each race.
Only one US state has approved legislation which attempts to ensure that racial bias does not play a part in the life-or-death decisions of the courts. Kentucky passed a Racial Justice Act in 1998, after a study commissioned by the state General Assembly showed that every death sentence up to March 1996 was for the murder of a white victim, despite over 1,000 black murder victims during the same time.
Even these overwhelming statistics were challenged by the pro-death penalty lobby. One assistant district attorney, Joseph Bouvier, was quoted in the press as stating: "This is a classic example of what people mean when they say there are lies, damn lies and then there's statistics."
Under the provisions of the Kentucky legislation, the courts may consider statistical or other evidence indicating a bias in the decision to seek the death penalty relating either to the race of the victim or the defendant. The claim must be raised by the defendant in a pre-trial conference, followed by a hearing at which both sides are allowed to submit evidence. It is up to the defence to show by clear and convincing evidence that race was the basis for the prosecution's decision to seek the death penalty. The provisions of the legislation are not retroactive and will not apply to any case prior to 1998.
In February 1997 the American Bar Association (ABA), passed a resolution calling for a moratorium on the use of the death penalty in the USA until all jurisdictions using it were striving "to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendants." While not opposed to the death penalty per se, the ABA concluded that the authorities were failing to confront the undeniable and unacceptable role of racial bias and poverty in its application. Since the adoption of the moratorium resolution, a number of lawyers' groups in individual states have passed similar motions, including the Bar Associations of Connecticut, Ohio and Pennsylvania.
The passage of the Racial Justice Act by Kentucky legislators is a positive indication of their willingness to address the most obvious manifestations of racial prejudice. But as the contents of this report demonstrate, selective application of capital charges by prosecutors is just one of a multitude of factors contributing to discriminatory death sentences. No legislation, however well-intended, can address these more subtle but equally insidious aspects of racial bias in the use of the death penalty
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