RACISM AND THE LAW. Effort to fight race bias in death penalty builds

National civil rights organizations, grass-roots groups, and members of Congress are redoubling efforts to challenge the death penalty on grounds that its inconsistent application hits minority-group members much harder than it does whites. Some observers say that in mounting this campaign, its backers are accepting an invitation from the United States Supreme Court. A Michigan congressman expects his subcommittee to hold hearings later this month on three cases in which blacks received the death penalty for killing whites.

A Texas congressman is proposing a moratorium on the death penalty until the race issue can be studied.

The American Civil Liberties Union (ACLU) hopes to increase public awareness of racial bias in capital sentencing by working with black organizations and civil rights activists to publicize the issue on a national scale.

In Texas a grass-roots coalition is publicizing the case of Clarence Lee Brandley, a black man convicted of the 1980 slaying of a white girl in Conroe, Texas. Mr. Brandley, who was convicted on circumstantial evidence and has steadfastly maintained his innocence, is the focus of federal and state investigations and growing public interest.

At a Houston rally last month of the Coalition to Free Clarence Brandley, the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference, asked, ``How long, America, will you cling to a double standard of justice?''

This flurry of activity follows a 5-to-4 Supreme Court ruling last month that state capital punishment laws are constitutional despite statistical evidence of racial bias in their application. A Georgia study cited in the case showed that a black convicted of killing a white is more than four times as likely to receive the death sentence as a white who kills a black.

Nevertheless, many court observers and death-penalty opponents say the high court left the door open to further scrutiny of racial bias in capital sentencing by indicating that evidence of such bias in individual cases could constitute a violation of the Constitution's equal-protection clause. The court further indicated that state legislatures are the proper arena for considering generalized statistical surveys of death-sentence applications.

``Both sides of opinion [on the death penalty] have something to point to in the court's ruling,'' says Ed Sherman, a professor at the University of Texas Law School. He says that the court ``tried very hard to lay to rest any notion that disparate impact based on statistics is enough to trigger a constitutional issue.''

But he says the opinion nonetheless left the impression that ``the impact might at some point be proven great enough to demonstrate a constitutional violation,'' adding that this impression is partly responsible for the renewed interest in the question of racial bias in capital sentencing.

``For a lot of people, the issue did not come into focus at all until after [the Supreme Court case],'' says Gara LaMarche, executive director of the Texas chapter of the ACLU. He says the ACLU plans to capitalize on the renewed attention focused on the death penalty by working with national black and other civil rights organizations to heighten public awareness of the issue.

In Texas, where 23 people - more than in any other state - have been put to death in the decade since the Supreme Court reinstituted the death penalty, Mr. LaMarche says he has noticed a shift in attitude recently in the Legislature. None of this year's efforts to expand the death penalty's scope ever got out of committee, he notes, while ``there is a new concern and interest in the whole area of fairness.''

Just how much action can be taken at the congressional level is uncertain. US Rep. Mickey Leland (D) of Texas is proposing a national moratorium on capital punishment while the racial bias issue is studied. But it is doubtful that the congressional mood would favor such action at this time, sources say.

``At the very minimum, [Representative Leland] would like a `sense-of-the-Congress' resolution,'' says a Leland aide. ``That wouldn't be law, but it would state that Congress supports a moratorium while the issue of fairness in administering the death penalty is being analyzed.''

In the meantime, US Rep. John Conyers (D) of Michigan expects his Subcommittee on Criminal Justice to examine closely at least three specific capital cases where racial bias may have been a factor in the sentencing.

``Essentially we want to take a close look at how the death penalty works in America,'' says Julian Epstein, a Conyers aide. He says the purpose would be to study the ``lottery nature'' of the penalty's use across the country.

Mr. Epstein says that about half of the 20,000 criminal homicides committed in the US annually are adjudged first-degree murders. ``Yet out of those there are perhaps 25 to 30 executions a year,'' he says, ``and who gets the electric chair does not appear to be based on any rational process, but on an arbitrary process with a distinct pattern of race and income level.''

Civil rights activists say one troubling irony of the Supreme Court's rejection of racial bias based on broad statistical evidence is that such evidence has been held sufficient for a plaintiff to prove racial discrimination in housing, employment, voting, and education.

``What we're left with, in effect,'' LaMarche says, ``is a higher standard of proof in capital cases, even though the stakes are higher.''

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