| Georgia
Needs a Racial Justice Act
by Michael Mears Multi-County Public Defender |
|
August
1998
Georgia’s death row holds 119 people. Sixty-four of those people
are white and fifty-five are black. Based upon the number of death penalty
cases pending at the trial level, Georgia’s death row will continue
to grow in the coming years. Currently there are 88 persons awaiting death
penalty trials. In those pending cases, 53 are black males, 26 white males,
2 black females, 4 white females, 3 Hispanic males. Not surprisingly,
the racial disparities between white and black defendants at the national
level are also evident in Georgia. Blacks make up 28% of the total population
in our state and whites account for 70% of the total population of the
State of Georgia.
The decision as to which particular case becomes a "death penalty"
case is purely discretionary. Current law allows the individual district
attorney in each judicial circuit to select which case or cases will become
a death penalty case. There is no check or balance to that system. Although
the statute provides that the death penalty is to be reserved for those
cases in which there exist one or more "aggravating circumstances,"
there is no check on the district attorney’s determination as to
the existence or nonexistence of an "aggravating circumstance."
There are currently ten (10) aggravating circumstances which would ostensibly
justify the decision to seek the death penalty. Those aggravating circumstances
range from any murder committed for "gain" to any murder which
involves "depravity of mind," a subjective determination that
can be applied to almost any crime.
Again, it must be reiterated that it is within the sole discretion of
the district attorney to pick and choose which cases become "death
penalty cases." In a perfect world, district attorneys would not
be influenced by politics and race but vestiges of racial discrimination
remain in our society. Our society has made some effort to remove racism
from our midst, however, only the politically blind and the socially deaf
would claim that racism is no longer prevalent in our state. Without a
doubt, racial factors are still a part of the decision to seek or not
to seek the death penalty in our state. Of those cases which prosecutors
have selected as death penalty cases, 65% are homicides where the victim
was white. In contrast, in Georgia more than 70% of the victims of homicide
are black!
The obvious racially discriminatory application of the death penalty in
this country is put into some perspective when we look at the race of
district attorneys and/or chief prosecuting officials in the United States.
Professor Jeffrey Pokorak of St. Mary’s University School of Law
collected data regarding the race and gender of government officials empowered
to prosecute criminal offenses and, in particular, in capital offenses
from all 38 states that use the death penalty. Concluded in February 1998,
this study revealed that only 1.2% of the district attorneys in death
penalty states in this country are black and only 1.2% are Hispanic. The
remaining 97.5% are white (1,794 out of a total 1,838 prosecutors in states
that use the death penalty). In Georgia, there is only one black elected
district attorney in the entire state.
Unfortunately, very little progress has been made in addressing the obvious
racial disparities that continue to affect the imposition of the death
penalty in this nation. However, some encouraging responses are beginning
to emerge. The State of Kentucky recently passed legislation which would
help prevent racial bias and racial discrimination with regard to the
use of the death penalty. Similar legislation has twice been passed by
the United States House of Representatives, but was defeated each time
in the Senate. The time has come for the members of the Georgia General
Assembly to step forward and address the issue of race and the death penalty
in Georgia.
In McCleskey v. Kemp (a death penalty case from Fulton County),
the United States Supreme Court acknowledged Warren McCleskey’s claim
that the death penalty is used in a racially discriminatory manner. The
evidence supporting Warren McCleskey’s claim was based upon a study
conducted by David Baldus, Professor of Law at the University of Iowa
College of Law, and George Woodworth, Professor of Statistics also at
the University of Iowa. "The Baldus Study," as it came to be
known, illustrated the disparity in the imposition of death sentences
in Georgia based on the murder victim’s race and to a lesser extent
the defendant’s race. The study showed that black people who are
convicted of killing whites had the greatest likelihood of receiving death
sentences while white people who are convicted of killing an African-American
rarely, if ever, receive the death penalty.
In a recent report prepared for the American Bar Association, Professors
Baldus and Woodworth have expanded their studies of race discrimination
in capital cases. They studied data from of the states that use the death
penalty and found convincing evidence of race-of-victim disparities, i.e.,
the race of the person murdered correlated with whether a death sentence
was given in a particular case. In nearly half of those states, the race
of the defendant also served as an augur of who received a death sentence.
The study looked at 2,400 cases processed in Georgia over a seven-year
period and showed that, even when controls were in place for the many
variables which might make one case worse than another, defendants whose
victims are white are, on average, 4.3 times more likely to receive a
death sentence than similarly situated defendants whose victims are black.
The study showed that in Florida, the odds of a defendant receiving a
death sentence are 4.8 times higher if the victim is white than if the
victim is black. In Oklahoma, the multiplier is 4.3 and in Mississippi
it is 5.5.
A recent study by the United States General Accounting Office confirms
that the Baldus Study was accurate. In its report to the Judiciary Committees
of the Senate and House, "Death Penalty Sentencing: Research Indicates
Pattern of Racial Disparities" (Feb. 1990), the GAO stated that out
of 28 studies examined, 82% found the influence of race to be a factor
in the charging and sentencing of defendants to death, i.e., that blacks
who killed whites were more likely to be sentenced to die than those blacks
who murdered blacks. The race of the victim was found to be a particularly
strong indicator of who would be charged with a capital offense. Based
on the statistics maintained by the Office of The Multi-County Public
Defender this is still true today in Georgia.
In the Ocmulgee Judicial District here in Georgia, former District Attorney
Joe Briley tried 33 capital cases between 1974 and 1994. Twenty-four of
those cases were against black defendants. In cases in which the
defendant was black and the victim was white, Briley used 96 out of his
103 jury challenges against African-Americans. In the Chattahoochee Judicial
District, a study of all murder cases prosecuted from 1973 to 1990 revealed
that in cases involving a white person, prosecutors often met with the
victim’s family and discussed whether to seek the death penalty.
But prosecutors failed to meet with African-Americans whose family members
had been murdered to determine what sentences they wanted. Most of those
African-American victims’ family members were not even notified that
the case had been resolved. As a result of obviously racially based decisions
by the prosecutors in the Chattahoochee Judicial District, the death penalty
was sought in 85% of the cases in which whites were the victims. This
fact is especially shocking when considering the fact that African-Americans
were the victims of 65% of the homicides during that period of time. These
circumstances are not confined to isolated districts; this is the norm
throughout this State.
A Racial Justice Act of Georgia is needed to address the continuing racist
nature of the criminal justice system and especially the racist application
of the death penalty. A Racial Justice Act for the State of Georgia would
not abolish the death penalty; such an act would be aimed at making the
imposition of the death penalty racially neutral. A Racial Justice Act
for Georgia would help insure that no person would be the subject of a
death penalty trial or given a sentence of death as a result of the racial
bias. If a Racial Justice Act were passed in Georgia, the defendant would
be allowed to present evidence relevant to establishing a finding that
race was the basis of the decision to seek a death sentence. Those prosecutors
who are not seeking death sentences because of the race of the defendant
or the race of the victim should have no problem supporting such legislation.
If Georgia is going to continue to use the ultimate penalty of death against
its citizens, members of the Georgia General Assembly must find some way
to insure that the process is racially neutral. At a time when every political
candidate vying for elected office is attempting to prove that he or she
is "tougher on crime" than their opponent and they use their
approval of the death penalty to demonstrate their position, surely there
can be voices heard demanding that continued racial discrimination in
the application of the death penalty end. The passage of a Racial Justice
Act for the State of Georgia would be a first, positive step in that direction.