The Color of Death

By David Bruck

Vol. 9, No. 2, 1987, pp. 1-3

According to the headlines, the Supreme Court's McCleskey decision last month on race discrimination and the death penalty was a disastrous defeat for the effort to abolish capital punishment in this country. But the executioner's victory in McCleskey was a costly one.

There are two reasons why this is so. First, the Supreme Court's pronouncement that it can't and won't do anything about the huge racial disparities in death sentencing is certain to produce even more questioning about a death penalty system that requires us to cut back on our most basic notions of racial fairness in order to provide elbow room for the executioner. And even more importantly, McCleskey may mark the beginning of the end of this country's irresponsible and deadly illusion about the death penalty: the illusion that the Supreme Court will save us from our own mistakes.

In McCleskey , the Supreme Court was faced with proof that the state of Georgia is more than four times more likely to sentence a convicted murderer to death for killing a white person than for killing a black person-and likelier still when the prisoner is black. But even though this evidence was far stronger than that usually relied upon to show racial discrimination in jury challenges or employment cases, the Court said that where capital sentencing was concerned, more is needed. In death cases, the Court ruled, the condemned prisoner must do the impossible by somehow presenting direct proof that his or her own prosecutor and jury consciously discriminated on the basis of race.

If this argument sounds familiar, it's because you've heard something very similar from the tobacco companies for more than twenty years. Every time someone who's dying from years of cigarette smoking produces statistics to show that smoking makes people sicken and die, the tobacco industry's lawyers and flak men come back with this line: "Well, maybe a lot of people who

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smoke all their lives get sick, but how do you know that that's why you got sick?"

Warren McCleskey established a link between race and death in Georgia two-and-half times greater than the proven link between smoking and heart disease. But just as no dying smoker can prove that her particular case of heart disease or lung cancer came from cigarettes, McCleskey can't prove that he wouldn't have been sentenced to death in a color blind system. All he can-and did-prove is that a lot of people on Georgia's death row are probably there because of race, and that he's probably one of them. What he proved, in other words, is the risk of race discrimination. And whether we're willing to tolerate that risk depends on just two things: how much we care about eliminating racism in our justice system, and how badly we want to get on with killing the nearly two thousand people on Death Row.

Now the Supreme Court, five votes to four, has said that if this country wants to strike that balance on the side of death, we're free to do so.

In the aftermath of McCleskey , the Supreme Court's refusal to face up to race discrimination must surely be reckoned as one of the heaviest costs of the death penalty itself. We've already discovered how the death-selection system drains the money, time and energies of our courts, distorts our response to the victims of crime, puts innocent lives at risk, and makes celebrities out of criminals. Now, in McCleskey , we have seen how the pressure for death is even starting to overtake the way this country is supposed to think about racial justice.

To be sure, Justice Lewis Powell's majority opinion in McCleskey tried to limit the effect of its decision to criminal sentencing. But opponents of racial integration will surely argue before long than they shouldn't be required to do more to justify a racially-suspect hiring decision or public school assignment than Georgia was required to do in justifying an execution. That's why McCleskey v. Kemp may well erupt a few years from now, like a forgotten land mine, as precedent for further decisions cutting back on the ability of civil rights plaintiffs to prove discrimination.

But it's not at all clear that Americans are willing to compromise any part of our hard-won victories over racial inequality for the sake of more and faster executions. The immediate effect of the McCleskey decision may be a slight increase in the trickle of executions across the South. But in the long run, McCleskey is going to leave thoughtful people wondering whether this dreary and dangerous game is worth the candle.

The other effect of McCleskey is to make us understand that the death penalty is not a matter for the courts, but for

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the sound moral and political judgment of the American people. We've all become used to letting the Supreme Court make our hard decisions for us. However much or politicians may rail against the Court, its presence lets them pass the buck. They can-and do-pass sweeping death-sentencing laws without much thought for the results. The legislators get on the evening news, and the courts are left to sort out the details-like who, if anyone, gets killed.

Every other Western democracy has already abolished capital punishment. In each country-in Canada in England, in France, in Australia-public opinion still favored the death penalty, but legislators faced up to the facts recognized that the death penalty achieved nothing of any value, and did away with it. The reason for these acts of courageous political leadership was that the leaders of each of these countries were themselves responsible, and felt responsible, for whether executions would continue. By contrast, much of the explanation for the shallowness of the death penalty debate in the United States has been our politicians' knowledge that the real decision would be made at the Supreme Court-and that there was some easy political advantage to be gained in the meanwhile.

McCleskey is the end of our collective evasion of responsibility for the moral and public policy catastrophe of our current death row explosion. The Supreme Court has accepted that the system is weighted by race, and has responded by telling us that if that is the sort of system we want, we can have it. McCleskey reminds us that the Supreme Court only determines what we can legally get away with. What's right and what's wrong are questions that we now have to answer for ourselves.

David Bruck is a lawyer in Columbia, S.C., who frequently writes and lectures on capital punishment.