The United States Supreme Court in 1972 struck down the death penalty on constitutional grounds in part because of concerns that blacks were more likely than whites to receive capital sentences. The death penalty was reinstated in 1976 after guidelines were implemented to guard against racial bias in cases that could lead to execution.
Given the current mood of the court, it seems unlikely that capital punishment will again be struck down altogether. Rather the relevant question is: If capital punishment is to continue, how can the government make sure that murder defendants aren't discriminated against because of their race.
This is a requirement of the US Constitution.
Prof. David C. Baldus of the University of Iowa law school, suggests that death sentences should be sharply limited to only the most heinous crimes (mass killing, torture, etc.).
He says that in his study of discrimination against black murderers in Georgia, racial discrimination appeared to be greatest in the less heinous cases or so-called middle-level murder cases. But in the most heinous cases, he says, race appears to play almost no role in who receives the death penalty.
``One way to eliminate discrimination in the system is to limit death sentences only to cases where everyone gets them,'' says Mr. Baldus.
``Over half the death sentences imposed in Georgia were imposed in cases where the death sentencing rate is very high -- pretty horrendous cases,'' he says, adding, ``I don't think there is any discrimination of any kind going on among those cases.''
Baldus suggests that state courts could devise a means of identifying what they deemed to be the most serious murder cases. Only cases fitting strict criteria could be tried with the potential penalty of death. Such a system would actively limit the amount of discretion currently open to prosecutors and juries, and curtail the influence of extraneous factors such as race.
It might mean that such cases as the murder of a taxi cab driver during a hold up or the killing of a grocer in a robbery would no longer be considered capital offenses.
The end result would be a more uniform application of the death penalty among all offenders, Baldus says. It would not eliminate race as a factor entirely -- discrimination will always play a role, experts say -- but it would significantly reduce that role.
Stanford law Prof. Samuel Gross agrees that sharply restricting capital punishment to the most heinous cases would reduce the influence of discrimination in the criminal justice system. But he cautions that determining which murders are more heinous and which are less heinous is not an easy task.
Nonetheless, by establishing narrow, well-defined categories for certain crimes, the imposition of the death penalty could be made more uniform, he says.
``The more vague the standards applied, the more discrimination,'' Mr. Gross says.
Gross authored an eight-state study confirming Baldus's findings that the race of a murder victim plays a determinative role in who gets the death penalty when the defendant is black and the victim white.
The Stanford professor says part of the problem of discrimination in death sentences originates with the jury system. He says individual jurors have no way of knowing whether they are applying the death penalty in an evenhanded manner.
Prof. Richard Berk of the University of California, Santa Barbara, is not optimistic about the prospect of trying to fine tune the capital sentencing system. ``The problem is that human institutions, just like human individuals, make mistakes. There is no way in the world that those mistakes can be prevented,'' he says.
Mr. Berk recently completed a study of death sentences in Mississippi. His findings support those of both Baldus and Gross.
Many opponents of capital punishment maintain that there is no way to reliably divorce racial prejudice from decisions about who should be sentenced to death.
``The system is still as discriminatory as it was in 1972,'' says Richard Brody of the NAACP Legal Defense and Educational Fund. ``You can't have a death penalty without racism. The only way to eliminate racism in the death penalty is to eliminate the death penalty itself.''
Prof. Arnold Barnett of the Massachuetts Institute of Technology found in his study of the Georgia capital sentencing system that ``for a large range of cases -- about four-fifths of them -- there is no real evidence of racial bias in the sentences.''
For the other one-fifth, however, Mr. Barnett says race does appear to have played a role in who received the death penalty in Georgia.
The MIT professor concentrated on the Baldus study, and like Baldus, has found that racial discrimination appears to play its most important role in middle-range capital cases. Barnett calls them ``borderline killings.'' US execution violates UN standards
The United States is one of the few countries that openly executes those convicted of committing capital crimes when they were minors.
Yesterday, Charles Rumbaugh was executed in Huntsville, Texas, for killing a jewelry story owner during an armed robbery when he was 17. It was the first such execution in the US since 1964.
Amnesty International, a group that monitors human rights worldwide, claims that, among 70 United Nations members who were willing to provide information on executions, only Barbados is known to have executed anyone who committed a crime as a minor within the last 12 years. (Other nations may have done so, but no reliable information is available.)
Amnesty International notes that death sentences for minors violate the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and guidelines established by the United Nations. The US participated in the formulation of these guidelines but has never formally ratified or accepted any of them.
What concerns opponents of capital punishment is that Rumbaugh's death may be the prelude to a flood of similar actions involving young defendants. According to a New York Times survey, 32 people are on death rows across the US for crimes committed as minors.
State laws govern sentencing in the US for all except federal offenses and the states vary widely on the death-penalty issue. Thirty states either permit or do not exclude execution of minors depending on the severity of the crime.
It should be noted that all the minors currently on death row in the US have been convicted of murder. Their crimes generally involve extraordinary brutality against the very young or very old.