Society, not statistics, decides death penalty

May 30, 2002|By Michael I. Meyerson

MARYLAND HAS ordered a halt in executions pending the completion of a statistical study on racial and geographic disparities in the imposition of the death penalty. When the study is released, the important question will not be what the final numbers show but rather the meaning we, as a society, choose to give those numbers.

A glance at Maryland's death row population shows a disturbing pattern: The race of the victim is a key indicator as to the likelihood that capital punishment will be imposed. Of the 13 people currently awaiting execution, 12 were convicted of killing whites. In a state where as many as 80 percent of murder victims are black, this seems to be an enormous discrepancy.

The statistical study being undertaken will examine whether other factors, such as location of crime and prior criminal record, might account for why these particular convicted murderers, and not others, were sentenced to death.

But history does not provide much hope for a conclusion that race is an irrelevancy. A nationwide 1990 study by the General Accounting Office concluded that those who murdered whites were more likely to be sentenced to death than those who murdered blacks. Maryland has not been an exception to this trend. A 1985 study found that defendants charged with murdering white victims in Maryland were eight times more likely to receive the death penalty than those whose victims were black.

The U.S. Supreme Court has rejected a challenge to the death penalty based on just such statistics. In the 1987 case of McCleskey vs. Kemp, the court considered the meaning of a statistical study of 2,000 murder cases in Georgia that concluded that the race of the victim was a statistically relevant factor in determining the likelihood that the death penalty would be imposed. According to the study, the death penalty was more than four times more likely to be assessed if the victim was white.

But despite the numerical disparity, none of the justices believed that statistics, by themselves, proved that race actually had been a factor in any particular sentencing decision. Even a statistically significant result runs into one of the fundamental principles of statistics: Correlation does not prove causation. The real issue was whether racial prejudice was the likely reason for the statistical discrepancy.

The ultimate decision, then, was not really about statistics at all. Instead, the debate turned on the extent to which each justice saw racial discrimination as prevalent in contemporary America, and thus a likely explanation of the statistical findings.

A five-justice majority was not convinced that the mathematical discrepancy was legally significant. Writing for the court, Justice Lewis Powell declared, "We decline to assume that what is unexplained is invidious."

By contrast, the numbers spoke volumes for the four dissenting justices.

Justice William Brennan's dissenting opinion declared that the statistical outcome helped establish that race improperly affected the imposition of the death penalty. Citing Georgia's history of racial discrimination in its criminal justice system, he said that the numbers were consistent "with our understanding of history and human experience."

This issue highlights what numbers can and cannot do. They cannot prove that a particular defendant was treated differently because of the race of the victim, but they can raise a red flag that commands us to look more closely at our society and our criminal justice system.

Numbers can also communicate. The message sent by statistics showing that killers of whites are far more likely to face the death penalty than killers of blacks is chilling. It appears to say that society values white lives more than those of African-Americans.

If the ultimate penalty is reserved for the murders that most threaten, most anger and most grieve society, then it looks as if the most solicitude is reserved for whites. Moreover, to the extent that capital punishment is a deterrent, only murderers of whites are likely to be deterred by the current system.

Therein lies an uncomfortable irony for death penalty opponents who are saluting the current moratorium, because there will be two different solutions to any racial misbalance. Mathematically, equality can be achieved either by reducing the use of the death penalty for killers of whites or increasing its use when victims are black.

That choice cannot be made with a scientific calculator. Instead, that decision, like all important legal decisions, must be based on a calculus of policy and law, history and morality.

Michael I. Meyerson, a professor and Piper and Marbury Faculty Fellow at the University of Baltimore School of Law, is the author of Political Numeracy (Norton, 2002).

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