The Color of Death
Does the death penalty discriminate?

Mr. Clegg is general counsel at the Center for Equal Opportunity.
June 11, 2001 8:00 a.m.

his morning Timothy McVeigh, white male, was executed. The execution came on the heels of a Department of Justice report released last week that scrutinized the federal death penalty system for evidence of racial bias.

National Review’s ideological counterpart, The New Republic, has a standard feature where it presents dueling headlines. Readers send in two headlines describing the same news event (sometimes even in the same paper) but with diametrically opposed takes on the same story. Here’s my nomination: Last week Foxnews.com announced “No Racial Bias in Application of Death Penalty, Feds Say,” while Newsmax.com declared “Federal Death Penalty Biased Against Whites.”

The federal study augmented data in an earlier, September 12, 2000 report, but reached similar conclusions. The broader pool found that federal prosecutors brought cases against 973 defendants in the 1995 to July 2000 period in which the facts would have supported a capital charge. Of these defendants, 17 percent (166) were white, 42 percent (408) were black, and 36 percent (350) were Hispanic. So, in this pool, blacks and Hispanics were “overrepresented” and whites “underrepresented” compared with their respective makeups in the general population.

But, out of this pool, capital charges were actually brought less frequently against blacks (79 percent of the time) and Hispanics (56 percent of the time) than against whites (81 percent of the time). Finally, the report found that the attorney general approved seeking the death penalty for only a modest 17 percent of the black defendants (71 out of 408), and a paltry 9 percent of the Hispanic defendants (32 out of 350), versus a whopping 27 percent of white defendants (44 out of 166).

So you can see that death row can be viewed by civil-rights advocates as half empty or half full, if I may engage in a bit of gallows humor. James Alan Fox, a criminologist at Northeastern University, says that the survey does little to answer basic question of bias, according to the Washington Post. “The prosecutorial decision-making here is what needs to be reviewed,” he said. “The problem may well be at the front end, and this seems to ignore that.” But that depends on what the scope of the study was supposed to be — finding bias once the capital cases had been brought, or finding it at the initial stage, too.

The study may not have addressed the latter point, but the fact that blacks and Hispanics are charged with capital crimes out of proportion to their numbers in the general population may simply mean that blacks and Hispanics commit capital crimes out of proportion to their numbers. And, of course, they do. Randall Kennedy, an African-American Harvard Law School professor, and Professor Michael Tonry, a leading liberal expert on sentencing, acknowledge the high rate of black street crime.

The fact is that capital criminals don’t look like America, and no one should expect them to. No one is surprised to find more men than women in this class. Nor is it a shock to find that this group contains more twenty-year-olds than septuagenarians. And if — as the left tirelessly maintains — poverty breeds crime, and if — as it tiresomely maintains — the poor are disproportionately minority, then it must follow — as the left entirely denies — that minorities will be “overrepresented” among criminals.

Heather Mac Donald sums up the figures that bear all this out: “Males between the ages of 14 and 24, less than 8 percent of the population, commit almost half the nation’s murders; black males of the same age, less than 1 percent of the population, committed some 30 percent of the country’s homicides in the 1990s.”

Finally, it must be noted that, even if a disproportionate number of African Americans are executed, the beneficiaries of the executions are likely to be disproportionately black, too. Consider: In the last three years for which FBI statistics are available, there were almost as many blacks murdered as whites (an annual average of 7316 versus 7358), even though there are over six-and-a-half times as many whites in the country. If the death penalty deters murderers, then it serves the interests of the overwhelming majority of (law abiding) African Americans more handily than the interests of all those rich whites in their gated communities.

No one seriously believes that Timothy McVeigh is being put to death because he is a white male. He is being executed because he is a cold-blooded killer, with the reasonable hope that his death will advance the safety and security of the rest of us, whatever our skin color. The same is true for the other cold-blooded killers being put to death.