Washington -- Come November, voters should remember that in the spring 219 House members and 41 senators voted, in effect, to abolish capital punishment.
The Racial Justice Act says no person shall be executed under a sentence imposed ''on the basis of race.'' The act says that a compelling inference of a racial basis is established if in a particular jurisdiction race was a ''statistically significant factor'' decisions to seek or impose capital punishment. Which means what, precisely? Precisely, nothing. Which means it is an incitement to litigation. And that is the point.
According to the act, evidence of race as a basis of a death sentence may include statistics showing death sentences are imposed ''significantly more frequently'' upon ''persons of one race than upon persons of another'' or more frequently ''as punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race.''
About half of America's murder victims are white, about half are black. But about 85 percent of the victims whose killers have been executed were white. So juries place a higher value on the deaths of whites, right? Not so fast.
Capital punishment is especially apt to be imposed on killers of police officers. Eighty-five percent of murdered police officers are white. Are juries placing high value on the lives of white people or police officers?
Juries' sympathies may vary with the moral character of the victim. A higher percentage of black murder victims than of white victims are killed while involved in illegal drug activities.
Prosecutors are more apt to seek capital punishment when a murder is committed during the commission of another crime such as robbery or rape. According to one broad survey, 20 percent of white murder victims and 12 percent of black victims are killed by persons committing another crime.
Since capital punishment was reinstated in 1976, 232 persons (as of several weeks ago) have been executed. Of those, 91 -- 39 percent -- were black, more than three times the black percentage of the population. However, since 1976 the annual percentages of blacks among those convicted of homicide have ranged from 44 to 52. If those statistics prove discrimination, does it favor or injure blacks?
Suppose the Racial Justice Act becomes law and prompts states to equalize the percentage of the killers of blacks and whites who are executed. Given that 95 percent of murdered blacks are killed by blacks, the result might be more executions of blacks.
However, the real purpose of the act is to end all executions. Its aim is to generate litigation so burdensome that states will conclude that the only way to ensure statistical proportionality that cannot be litigated forever is, as Sen. Orrin Hatch, R-Utah, says, ''to have the incidence of the death penalty equal zero -- that is, to abolish the death penalty.''
Senator Hatch cites the case of Earl Lloyd Jackson, a California murderer who in 1984 won a state-court ruling that he was entitled to a hearing on his statistical claim that capital punishment was being imposed in a discriminatory manner in California. Mr. Hatch says Jackson was able to require the production of such voluminous data that a special task force was created just to cope with his case. In three years -- until a U.S. Supreme Court ruling truncated his appeal -- his statistical claim cost California more than $1 million.
The Racial Justice Act, by enabling a killer, subsequent to his conviction, to put the prosecutor on trial, is a transparently anti-democratic maneuver by opponents of capital punishment to frustrate this society's considered affirmation of capital punishment. For years opponents argued that society's ''evolving standards of decency'' had rendered capital punishment -- which the Constitution explicitly contemplates -- unconstitutionally ''cruel and unusual.'' Thirty-seven states refuted that theory by reaffirming capital punishment.
Now the Racial Justice Act would make capital punishment prohibitively draining on the resources of the criminal-justice system, and would do so with an obliqueness that bespeaks cynicism. The act is fresh evidence that as liberalism continues to lose its power to persuade the public, it retreats from legislatures into courts, preferring litigation to legislation to achieve its ends.
The House barely passed the act. The Senate rejected it. A joint conference will decide if it stays in the bill. If it does, that will be sufficient reason for defeating the bill.
George F. Will is a syndicated columnist.