The Death Penalty: Race may matter

THURSDAY, SEPTEMBER 27, 2001

As the Supreme Court prepares to rule on the constitutional question of executing the mentally retarded, another potentially controversial issue is surfacing among capital punishment cases.

In a 2-1 decision this week, a federal appeals court allowed an African-American man to pursue whether his race contributed to federal prosecutors seeking the death penalty for two killings he allegedly committed. The 6th Circuit Court of Appeals on Tuesday ordered federal prosecutors to turn over documents regarding any and all death penalty cases they have pursued in eastern Michigan since January 1995.

The U.S. Attorney's office in Michigan had opposed the request John Bass made for the documents. Among other claims, the office said Bass failed to provide any reason to see the information.

But a federal court, and now the 6th Circuit, disagreed. Statistics and a preliminary study commissioned by former Attorney General Janet Reno noting racial disparities among federal capital cases are "sufficient evidence of racial bias" to warrant Bass' request, the appeals court said.

Reno's study, "The Federal Death Penalty System: A Statistical Survey," showed that a significantly higher percentage of African-Americans are charged with "death-eligible" crimes. Although only 38 percent of the federal prison population, 48 percent of African-Americans were charged with death-eligible crimes.

In comparison, only 29 percent of whites were charged with death-eligible crimes despite making up 57 percent of the federal prison population.

Additionally, the study showed that white defendants were more likely to receive a plea bargain than similarly situated African-American ones. Federal prosecutors entered into plea agreements with 48 percent of whites versus 25 percent of blacks.

These, and other statistics, led Reno and other Department of Justice officials to raise concern. "I can't help but be both personally and professionally disturbed by the numbers that we discuss today," said Reno last September.

"To be sure, many factors have led to the disproportionate representation of racial and ethnic minorities throughout the federal death penalty process," she continued. "Nevertheless, no one reading this report can help but be disturbed, troubled, by this disparity."

At the same time, some have pointed out that the statistics have not proven any discriminatory intent in seeking the death penalty for African-Americans. A dissenting judge on the 6th Circuit made note of the distinction in Bass' case.

"The fact that top Justice Department officials have expressed concern over some of the national statistics does not, in my view, constitute 'evidence' that capital-eligible charges were brought against Bass because of his race," wrote Judge David A. Nelson.

With respect to Bass, however, the government's intent to pursue death penalty charges has been thrown out because the U.S. Attorney's office failed to act in a timely manner on his request for documents. Nelson wrote in his dissent that he would have reinstated the notice.

During his confirmation hearings, Attorney General John Ashcroft said the death penalty survey "troubled [him] deeply." But in subsequent testimony, he has downplayed the existence is any racial bias in federal capital punishment cases.

Deputy Attorney General Larry Thompson in June said the Justice Department will undertake a comprehensive study of the death penalty system. A review completed the same month showed no evidence of discrimination in how the system is administered.

There are currently no American Indians facing the federal death penalty.

Get Bass' Case:
US v. BASS, No 01-1213 (6th Cir. September 25, 2001)

Get Death Penalty Study:
THE FEDERAL DEATH PENALTY SYSTEM: Supplementary Data, Analysis and Revised Protocols for Capital Case Review (USDOJ June 6, 2001)