The real place of race

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Robert Bacon Jr. made two deadly mistakes.

The first: He killed the ex-husband of his girlfriend.

The second: The ex-husband was white.

As a result, Bacon was sentenced to death. But if his victim had been black, odds are very good that he would have been sentenced to life.

This is the often-overlooked part of the debate about the death penalty and racial discrimination. While much has been documented about bias against black defendants, one of the most crucial reasons why someone is sentenced to death remains largely ignored.

What really counts is the race of the victim, not the killer.

This overwhelmingly determines whether someone is charged with a capital offense in the first place; whether prosecutors seek the death penalty or a plea bargain; whether a judge will side with prosecutors; and whether a defendant -- black or white -- has to worry about dying in a death chamber.

The bottom line: People who kill white people are much more likely sentenced to die than those who kill black people.

"In our society, the judgment is made that the death of a white person is more heinous than the death of a black person. That is sad," said Duke University law professor Jim Coleman, who represented serial killer Ted Bundy in his futile attempts for a death-penalty reprieve after his conviction in Florida for murder.

Added University of Iowa Law School professor David Baldus: "People always think it's the race of the defendant, when that's not true. You're twice as likely to get the death penalty if the victim is white."

In the mid-'80s, Baldus became the first researcher to document that the race of victims was a major factor in capital cases. His work was the basis of a 1987 U.S. Supreme Court decision, McClesky v. Kemp, which is considered one of the most important death penalty cases ever.

Baldus' studies in Georgia and Philadelphia showed that those who killed whites were four to five times more likely to receive the death penalty than if the victim was black. He said he now believes the ratio is about 2-to-1 across the country.

Still, that's troubling in a society that pretends to value fairness.

"If you apply to college, and your chances are only half as likely to be accepted if you are white, everyone would be up in arms," University of North Carolina Law School professor Jack Boger said of the new estimate. "If two students got into a fight, and one was expelled and the other got 30 minutes in lunchroom, everybody would recoil. It would be considered outrageous, particularly if the student who got sent to the lunchroom was black."

The collective body of evidence clearly shows that the death penalty is guilty of such outrageous discrimination -- even racism -- against both the convicted and the dead. Consider that across the country, 161 black inmates have been executed for killing whites since 1976 when the death penalty was reinstated, according to the Death Penalty Information Center in Washington, D.C. Only 11 Caucasians have been executed for killing blacks. And in federal cases, prosecutors sought the death penalty twice as often for blacks who killed whites than when they killed blacks, according to a study released last fall by the U.S. Department of Justice.

Why are juries more inclined to sentence blacks charged with killing whites to death than the other away around? Death penalty experts including Baldus, Boger, Coleman and Northwestern University professor David Protess cite numerous intertwined reasons, not all related to race.

It begins with how sensationally the media plays up the crime. Newspapers and TV stations tend to overplay the murders of wealthy whites and all but ignore the killings of poor blacks. Coverage of middle-class murders tend to get a short life on the front page of the metro section, unless some other "hot item" pushes the story back to the inside pages.

"Black victims are barely noticed, particularly if it's a black-on-black crime," Baldus said. "The media plays up the fact when white people are killed."

Once a suspect is arrested, prosecutors take charge. They can choose to plea bargain with the defendant. They can seek charges less than first-degree murder. They can seek a conviction of murder in the first degree, but ask for a sentence of life behind bars.

But, particularly if it's a sensational crime with a white victim, public pressure usually causes "law and order" prosecutors to seek the death penalty. Less than 2 percent of prosecutors across the country are black, according to statistics from the Death Penalty Information Center.

"If the victim is black, particularly if he's an unsavory character, a drug dealer for example, prosecutors are likely to say, 'No jury would return a death verdict,'" Baldus said.

There are many stories of prosecutors who use subtle tactics to exclude blacks and death-penalty opponents from juries. It's legal and typical for judges, at a prosecutor's request, to dismiss prospective jurors if they oppose the death penalty for personal, moral or religious reasons. So the people left on the jury are people more likely to support the death penalty than the community as a whole.

Also, if prosecutors believe blacks must be on the jury to withstand the appellate reviews, they will seek out older women, government workers or manual laborers. Prosecutors know that such people often do not argue against white jurors who are more likely to want the death penalty.

Sometimes, prosecutors aren't subtle at all. During the 1997 election campaign for Philadelphia's district attorney, it was revealed that an assistant D.A. had produced a training video that taught prosecutors how to exclude blacks from juries, and do it in a way that would withstand judicial review. The video claimed "young black women are very bad" for prosecutors and "blacks from low-income areas are less likely to convict."

Coleman recalls defending a black drug addict in Florida on appeal who had been found guilty of killing an elderly woman. In a legal brief, the prosecutor wrote that the defendant should get the death penalty because the victim was a white woman who had been raped and killed by a person of another color.

"This was not a startling statement to them," Coleman said. "There was no comment on it by the defense attorney or the judge. I came in and said, 'Oh my God, who would write this in a brief?' The reason was, this was something they believed, or believed others would believe; this was acceptable."

Protess, the Northwestern professor, noted one other major factor in deciding who gets the ultimate penalty of death: money, regardless of the race of the accused and the victim.

O.J. Simpson, for example, was accused of killing his ex-wife and a waiter, both of whom were white. A large amount of blood was left at the scene, which was in a wealthy neighborhood. This had all the elements for a death-penalty case. Still, prosecutors never sought the death penalty, and Simpson's "Dream Team" of expensive lawyers won an acquittal.

"There's not any wealthy blacks or whites on death row," Protess said. "Ninety percent of the condemned are indigent, relying on public defenders or `low-paid` court-appointed attorneys. If `defendants` all had a 'Dream Team,' many of them wouldn't end up on death row."

Jack Boger, the North Carolina professor, thought he had a good chance that day in 1987 when he stood before the U.S. Supreme Court. Granted, the circumstances looked bad. His client, Warren McClesky, had been convicted of killing a police officer in Georgia.

Still, Boger was armed with a new study that left no doubt the race of the victim in Georgia was a key factor in deciding who was allowed to live and who was sentenced to die. McClesky was black, and the dead officer was white.

The study by Baldus showed that defendants convicted of killing whites were 4.7 times more likely to receive the death penalty than those convicted of killing blacks. The study examined more than 500 factors of death-penalty sentences, and race of the victim was an overwhelming factor. In other words, there was no doubt that Georgia's legal system was racist, and McClesky was just another victim.

The study also highlighted another fact: Killings can be divided into three sections, and in two of them, race of the killer or the victim was not a factor.

In sensational crimes with multiple victims and lots of blood, prosecutors almost always will seek the death penalty regardless of the race of the victims. Prosecutors rarely seek the death penalty, regardless of the race of the victim, in more routine killings, such as a drunken brawl between two buddies in which one kills the other.

Where race did matter was in the vast majority of murders that fell between the two extremes. And in those cases, people who killed white people were much more likely to die by execution.

The death of a police officer in Georgia was toward the upper end of the scale, but Bolger, armed with the new Baldus study, thought he could win.

He didn't.

In a 5-4 decision, the Supreme Court ruled the study didn't matter. Writing for the majority, then-Justice Lewis Powell wrote that Bolger had to prove racism was specifically and "to a moral certainty" applied against McClesky. Although Powell acknowledged that Baldus' work was extensive and subjected to many tests to substantiate its validity, its conclusions simply weren't enough to spare McClesky.

"There is of course some risk of racial prejudice influencing a jury's decision in a criminal court ...," Powell wrote. "McClesky asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital cases. This we decline to do."

In the end, though, Powell regretted his decision. After his retirement, he said ruling against McClesky was one of the biggest mistakes he'd made.

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