House and Senate conferees are trying to reconcile differences between their two versions of the omnibus crime bill. One sticking point is the House amendment often called the Racial Justice Act. This legislation, no whisper of which is in the Senate crime bill, allows those condemned to death to offer statistics as evidence of racial discrimination in the sentencing jurisdiction. Some studies in the past have shown that capital punishment is more often resorted to in cases where the killer is black and the victim is white than in all other cases.
House Majority Leader Richard Gephardt said of the provision, "For every other kind of discrimination, Congress has always held that statistics are fair game, that they can tell an important part of the story in a court of law." That's true. Judges also have often held that statistics can prove or disprove discrimination. In fact, the Supreme Court once came very close to voting that racial statistics could be used in capital crimes sentencing, even without an act of Congress.
It voted 5-4 against that use of statistics and now, in an ironic way, that old decision has come back to haunt Congress just as it wrestles with the Racial Justice Act.
The high court so ruled in 1987. Justice Lewis Powell, a conservative Republican who had consistently voted to uphold the death penalty, wrote the opinion for the closely split court. But in a newly released biography of Mr. Powell (by John J. Jeffries, published by Charles Scribner's Sons), the retired justice is quoted as saying in a 1991 interview with Mr. Jeffries that if he could change his vote in any case, it would be in that one.
Different members of Congress have been trying to get a racial justice law passed since 1988. The Senate rejected it that year, again in 1989 and again in 1990. Attempts in 1991 also failed, but by then a clear majority in favor of such legislation had coalesced in the House. That majority has now appeared again.
It is possible that the Senate would have been brought around in 1991 if Mr. Powell's views had been widely known, and the law could have been passed. (It may have been vetoed then by President Bush, but it would not be vetoed now by President Clinton.) Senate conferees, enlightened by "Justice Lewis F. Powell, Jr., a Biography," should accept the House's Racial Justice Act amendment. And the full Senate -- especially Justice Powell's fellow Republicans, who have been the principal opponents -- should vote its approval.