
          The Color of Death
          By Bruck, DavidDavid 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 

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 

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.
          
        
