A BLACK MAN SHOT a white police officer during a robbery and was sentenced to death. Fighting to save his life, he came forward with numbers, with perhaps the most respected study yet, that showed that the race of his victim -- white -- made it much more likely statistically that he would end up facing the electric chair than any other characteristic of his crime.
The man was Warren McCleskey, and in 1987 he came close to convincing the U.S. Supreme Court he should not be executed. But the court voted, 5-4, that unless McCleskey had proof of discrimination in his own case, he had no constitutional right to escape the death penalty.
Now the local case of Flint Gregory Hunt, another black killer of a white police officer, brings the issue of racial disproportionality in the death penalty to the forefront as Maryland, for the first time in years, faces the problem of executing a man who does not want to die.
Of the 17 men currently on Maryland's death row, 14 are black. Of those, all but two killed white people. Yet blacks make up only about 26 percent of the state's population. The last inmate executed in the state, John Frederick Thanos, was white and waived all appeals.
In recent weeks, much has been said about the role of race in Hunt's execution. Black legislators have pressed Gov. Parris N. Glendening to honor a promise he made a year ago to probe the over representation of blacks on death row, given a gubernatorial commission's statement that the numbers were "of legitimate concern." The Rev. Jesse L. Jackson suddenly discovered Hunt, flying into Baltimore for a hasty visit with the prisoner and a rendezvous with television cameras to condemn disproportionate sentencing.
But what has been missing from the debate is the hardest question of all: how to get to the root cause of these numbers, and what to do about it if we do.
History indicates that this is the question that really scares us. For, as studies have shown, the disproportionate numbers of blacks sentenced to death don't come from anything as apparent as a bigoted prosecutor, or a hanging judge, or a state legislature's deliberate intent to punish blacks more harshly.
According to some criminal-justice experts, racial disparity in the system starts with a kid's first arrest for a juvenile offense, with the first time a black youngster goes to juvenile hall for detention while a white kid is diverted to counseling. They say it happens the first time police or prosecutors overcharge that black youngster so they can effectively plea bargain later; the first time the young adult pleads guilty because he can't make bail and has already served what amounts to a jail sentence while awaiting trial. It takes place, they say, when biases are so subtle that people don't even know they have them.
For a brief moment, the Supreme Court confronted this notion in the McCleskey case. "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system," Justice Lewis F. Powell Jr. wrote for the majority. If the court accepted that claim, he wrote, "we could soon be faced with similar claims as to other types of penalty."
That prompted Justice William J. Brennan, a passionate opponent of the death penalty, to comment in dissent: "Taken on its face, such a statement seems to suggest a fear of too much justice."
Of course, statistics -- and the complicated social policies and problems that may have produced them -- don't make an individual killer any less guilty, or any less deserving of punishment, his victim any less dead or the victim's family any less devastated.
This is what is so hard for Officer Vincent J. Adolfo's family to bear now, as they personally shoulder the implication that by wanting Hunt executed, they are contributing to a racist system.
They find it a distressing notion, made more painful by what Adolfo did for a living. "Vince patrolled a black neighborhood," points out his widow, Karen Adolfo. "He was trying to protect people."
Concern over race and the death penalty in Maryland surfaced with the report of the Governor's Commission on the Death Penalty in 1993, which pointed to marked discrepancies in the ways different prosecutors sought the death penalty. In Baltimore County, for example, State's Attorney Sandra A. O'Connor seeks capital punishment in every murder that qualifies under the law, while other prosecutors considered mitigating factors.
The commission said it did not find intentional racial discrimination in cases it reviewed, but recommended further study of why so many of those sentenced to death were black.
"The data does not establish discrimination against African-American defendants or in favor of white victims; neither does the data disprove racial discrimination," the commission's report said.