Prosecutors' racial bias may be factor in death-penalty cases

A murder in a small town may prompt headlines and public outrage, pressuring local prosecutors to seek the death penalty. A murder in a large city may cause little stir.

But geography, publicity, and the legal facts of the case are not the only things that may affect prosecutors' decisions to seek the death penalty.

Research shows that the death penalty is more often applied against murderers of whites than murderers of blacks (see related story Dec. 20). This article examines one major aspect of how some murders come to tried as death-penalty cases and others do not - the role of prosecutors.

Until now, the Supreme Court of the United States has provided guidelines to juries on how the death penalty may be applied. But if part of the problem is at the prosecutorial level, such guidelines will not erase what appears to be a discriminatory use of the death penalty against killers of whites, these researchers say.

The three new studies indicate that race, especially the race of the victim, is a major, though hidden, factor in prosecutors' decisions to pursue a murder case as punishable by death. In otherwise similar cases, prosecutors were more likely to seek the death penalty if the victim were white than if a black person were killed, according to these studies. (The findings indicate that the race of the defendant is also a factor, but to a lesser degree.)

The authors of the studies attempt to probe the reasons behind these general findings. The studies, nearing publication, examine Florida, the state with the most people on death row, and Georgia, which ranks fourth.

Some elements of these studies have already been heard in court in death-penalty cases. Researchers predict the US Supreme Court will eventually hear constitutional arguments on whether the way the death penalty is used and the process prosecutors follow in such cases result in racial discrimination.

A fourth study, completed last year on South Carolina's prosecutors, also found that they were more likely to seek the death penalty if the victim was white.

But a prosecutor and a top law-enforcement official in South Carolina, both supporters of capital punishment, deny that race plays a part in the decision to seek the death penalty in murder cases. And in interviews with other researchers , prosecutors in Georgia and Florida did not mention the race of victims as a factor.

Race is ''totally irrelevant'' in such decisions, says Donald Myers, a state solicitor (prosecutor) in Lexington, S.C. ''The law is what I go by.''

Death-penalty cases are prosecuted ''regardless of color (of the victim or the defendant),'' says Leon Gasque, assistant director of the South Carolina Law Enforcement Division.

Several months ago a state court in South Carolina heard arguments that capital punishment is unconstitutional because prosecutors allegedly apply it in a manner that discriminates against blacks (as the victims). The court struck down such arguments, but the case will be appealed, says Raymond Paternoster of the University of Maryland, whose research on prosecutors was cited in court.

''Very few people would say outright that race was actually a dominant influence on the prosecutor, but it's there,'' says William J. Bowers, whose research on use of the death penalty in Florida is one of the three new studies that examine the role of prosecutors in such cases.

''It's an unconscious racial bias,'' he says. His study shows that between 1972 and 1977, 2,002 blacks and 2,008 whites were murdered in Florida. In prosecution for these crimes, 147 death sentences were given - 135 to convicts who killed whites and 12 to convicts who killed blacks.

In earlier rulings the US Supreme Court has said the death penalty cannot be used ''arbitrarily.'' In other words, the legal facts of the case are supposed to be the only facts influencing the judicial process by which the death penalty is given. Race is not supposed to be considered; nor is publicity, geography, ambition of the prosecutor, or any other nonlegal factors.

But ''race (of the victim) is a pervasive factor through the stages of the (judicial) process,'' says Professor Bowers, director of the Center for Applied Social Research at Northeastern University.

His research shows that prosecutors in Florida are 30 to 40 percent more likely to press for a first-degree murder indictment (punishable by death) against criminals who kill whites than against those who kill blacks in similar cases.

His study also notes that in interviews conducted in Florida by former prosecutor Mary Brennan, judges, prosecutors, and defense attorneys more often mentioned nonlegal factors than legal ones in explaining decisions to press for capital punishment in some cases and not others.

In the second study, David Baldus of the University of Iowa has researched death-penalty cases in Georgia from 1973 to 1978. Among his findings: In first-degree murder cases, at midpoint between the most serious and the least serious, murderers of whites are two times more likely than murderers of blacks to have prosecutors seek the death penalty.

Mr. Baldus also found that for the average defendant indicted for murder, the chances of receiving a death sentence were approximately four times greater if the victim was white. Race of victim, he found, was as important in determining a sentence as, for example, whether the defendant had a prior felony conviction or was killing to avoid arrest.

In the third study, Michael Radelet of the University of Florida looked at what happens after police investigators classify a murder according to its degree of seriousness. (For example, murder committed along with another felony is considered more serious than murder by itself.) Then he examined prosecutors' decisions to classify the same cases as more serious or less serious than police did as they presented the cases in court.

''Prosecutors selectively manipulated cases based on the defendants' and the victims' race,'' Mr. Radelet says.

In murder cases where the victim was white, for example, he found that prosecutors were ''more severe'' than in similar cases when the victim was black. He also found that prosecutors were four times as likely to increase the charges against a black killing a white than against a white killing a black.

''Powerful whites in the community get more outraged when a black kills a white than when a white kills a black,'' Radelet says.

Allegedly discriminatory use of the death penalty ''is not a problem that can be eliminated by giving the jury some (additional) guidelines,'' says Professor Bowers. He contends that the death penalty cannot be used in a nonarbitrary way and is therefore unconstitutional.

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