Is the death penalty "racist"?

The New York Times printed an op-ed yesterday with the headline:

Death Penalty, Still Racist and Arbitrary.

The piece begins:

LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks.

I don't think there's much question about that latter point. But the biggest concern about whether the death penalty is racist would not seem to be about the race of the homicide victim.

Rather, when people call the death penalty "racist," the suggestion is that a defendant who's black is more likely to be executed than a defendant who's white, if all factors other than race are essentially the same.

Is that true?

The New York Times itself published an article (in 2008) that took a much more balanced and fact-based look at this issue:

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. . . .

A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal.

But the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, “five black defendants would be sentenced to the ultimate sanction because of race.”

Scott Durfee, the general counsel for the Harris County district attorney’s office, rejected Professor Phillips’s conclusions and said that district attorneys there had long taken steps to insulate themselves from knowing the race of defendants and victims as they decided whether to seek the death penalty.

“To the extent Professor Phillips indicates otherwise, all we can say is that you would have to look at each individual case,” Mr. Durfee said. “If you do that, I’m fairly sure that you would see that the decision was rational and reasonable.”

Indeed, the raw numbers support Mr. Durfee.

John B. Holmes Jr., the district attorney in the years Professor Phillips studied, 1992 to 1999, asked for the death sentence against 27 percent of the white defendants, 25 percent of the Hispanic defendants and 25 percent of the black defendants.

I agree with Durfee's statement that you'd need to look at the merits of each case. Phillips did purport to do exactly that, as the Times explained:

Professor Phillips said that the numbers suggesting evenhandedness in seeking the death penalty did not tell the whole story. Once the kinds of murders committed by black defendants were taken into consideration — terrible, to be sure, but on average less heinous, less apt to involve vulnerable victims and brutality, and less often committed by an adult — “the bar appears to have been set lower for pursuing death against black defendants,” Professor Phillips concluded.

Professor Phillips wrote about percentages and not particular cases, but his data suggest that black defendants were overrepresented in cases involving shootings during robberies, while white defendants were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims.

When the nature of the crime is taken into account, Professor Phillips wrote, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Harris County juries corrected for that disparity to an extent, so that the odds of a death sentence for black defendants after trial dropped to 1.49.

Jon Sorensen, a professor of justice studies at Prairie View A&M University in Texas, said he was suspicious of Professor Phillips’s methodology.

“It’s bizarre,” Professor Sorensen said. “It starts out with no evidence of racism. Then he controls for stuff.”

Moreover, Professor Sorensen said, Professor Phillips failed to take account of other significant factors, including the socioeconomic status of the victims.

Again, I just don't know see how you could ever draw a firm conclusion about any of this without looking at the specifics of each case. And even if any researcher had time to do that, they'd need to apply their personal opinions to weigh how bad the different crimes were. But there's no reason to trust even the most fastidious and impartial researcher to do this, since they could only make these judgments by looking at a cold, paper record of a case. A judge and jury in each case are uniquely well-positioned to make judgments about whether a defendant is guilty and how bad the defendant's specific actions were. You can never fully step into the judge's or jury's shoes.

As one example, we're told that black defendants are more likely than white defendants to kill during "robberies." That might sound like a relatively drab category of crime, in contrast with the white defendants, who are described in a way that sounds viscerally reprehensible: they "were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims." But one could easily imagine a robbery being quite brutal. Off-hand, I have no idea if "robberies" are generally worse than, say "kidnappings."

And remember, the severity of a crime is just one of many factors that can be relevant in sentencing. As the Houston Chronicle reported in a 2010 article about another research paper by Phillips:

District Attorney Pat Lykos, who has been in office for little more than a year, declined to comment on Phillips' conclusions about the past administration. She said under her leadership, a victim's race or ethnicity or education level would play no part in determining whether to seek the death penalty against an accused killer.

If the slain victim was single, that also would not play a role in the decision, but if the victim was married, the impact of the death on their family would be considered, Lykos said. If the victim had a criminal record and whether that was considered would depend on the facts surrounding their death, she said.

Factors that are considered in whether to seek the death penalty, Lykos said, include the victim's age and vulnerability, the number of victims killed, the brutality of the offense, whether the accused killer and victim had any prior relationship, the defendant's criminal record and life history, and the effect the crime had on society.

The 2008 article shows that the New York Times is capable of setting a high standard for itself in conveying these nuances about the limits of our ability to make a sweeping judgment about thousands of unique cases. Yesterday's op-ed shows that the Times is willing to let this complexity get simplified and filtered.