TCS Daily

Discriminate Deaths

By Iain Murray - May 5, 2003 12:00 AM

Last week, USA Today ran an editorial approving of an Amnesty International USA report that concluded that the death penalty is being applied in a racially discriminatory fashion because more murderers of whites are executed than murderers of blacks. The report itself is long and detailed, but its argument is mostly based on anecdote. The issue is far more complex than USA Today or Amnesty concedes.

When considering the death penalty, we must first of all recognize that there are very few inter-racial murders. From 1976 to 2000, 86 percent of white victims were killed by whites, while 94 percent of black victims were killed by blacks. So cases where blacks killed whites or whites killed blacks are rare in comparison to the intra-racial crimes. It is a sad fact that African Americans are disproportionately victims of homicide in the U.S., which is why there is a disproportion of African Americans on death row. The argument that this demonstrates that the death penalty is unfair is therefore a weak one, which is perhaps why its opponents have now turned the argument on its head.

The new argument - that it is the race of the victim, not the race of the offender, which proves discrimination - seems mainly to be based on anecdote. There is very little statistical analysis in the Amnesty report beyond the simple facts related to executions. As the organization states:

"Eighty percent of people executed since judicial killing resumed in 1977 were put to death for murders involving white victims, although blacks and whites are murder victims in almost equal numbers in the US, according to the report. Since 1977, 200 African Americans have been executed for the death of white victims, which is 15 times as many the number of whites put to death for killing blacks during that period."

There are a number of problems with this characterization. First, as already mentioned the number of whites who kill blacks is very low - only 300 cases in 2000, not all of which will have been capital murder cases. Second, concentrating on those who have been executed rather than those on death row also skews the data. Thankfully, the appeals process for capital murder cases is very detailed. By ignoring the numbers on death row for killing blacks and concentrating instead on those who have been executed, the numbers may well be skewed. Unfortunately, we do not have the data to allow us to say whether this is the case. What we do know, however, is that the authorities execute whites quicker than they do blacks. White murderers executed in 2001 had been on death row for an average of 134 months. Black murderers executed that year had been on death row for 166 months - over two years longer. The authorities certainly do not seem over-eager to rush African Americans to execution.

There may be another factor to bear in mind. As mentioned above, not all murders are capital murder cases. For capital murder to apply, some aggravating circumstance has to be present. In many cases, these circumstances are sexual in nature. For reasons that we are not quite sure of, whites are much more likely to be the victims in sex murders than blacks. Fully two-thirds - 67 percent - of victims of such crimes are whites, and only 30 percent blacks. In other felony murders, whites are again more likely to be the victim (55 percent white, 42 percent blacks). These figures compare to the overall homicide victims breakdown of 51 percent white, 47 percent black. White victims are also over-represented in planned homicides as opposed to murders that arise out of a chance incident: 79 percent of poison victims are white. The circumstances of the crime might therefore point to whites more often being the victims of "evil" murders than blacks.

Another factor that complicates the death penalty is that not all jurisdictions possess or seek the death penalty. This even varies within states. For example, within Maryland, as the Washington Times said on January 13,

In Baltimore County, which has a relatively high percentage of white murder victims, the policy is to seek the death penalty whenever possible. By contrast, in Baltimore city and Prince George's County, where the overwhelming majority of black murder victims are slain, prosecutors rarely seek the death penalty because local juries are reluctant to impose it.

If there are correlations between areas where whites are the likely victims of murder and the death being sought and between areas where blacks are the likely victims of murder and the death penalty not being sought, then that should be taken into consideration by anyone studying the issue. If areas that have the death penalty available to them choose not to use it for local political reasons, then their decision does not make areas that choose to pursue it racist.

Any decent study of the effect of victim's race on the death penalty should control for these complicating factors. It should look at those receiving the penalty, not simply those executed, and should apply statistical techniques to control for the over-representation of whites in certain types of murder and in the districts where the death penalty is most often sought.

I should add that I remain personally opposed to capital punishment for all but the most heinous of crimes, but the accusations thrown by this anecdote-laden report have not been substantiated by a proper analysis. Moreover, the uncomfortable conclusion that can be reached from following the logic of the report is that the "racism" problem can be eliminated by the simple expedient of executing more blacks who have murdered blacks. If the death penalty is inherently wrong, this is a poor argument to deploy against it.

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