DP in black and white

Scales of justice may weigh heavily against blacks.
By Claire Cooper


For Bill Babbitt, a black man, the question comes down to this: Why
did Sacramento County condemn his brother, Manny, to death for
killing a white woman but sentence his cousin, Butchie's, white
killer to a year in jail?
"I'm looking at all these murders that have occurred, hundreds, and
I'm thinking, how did Manny's name come up?" says Babbitt, who
witnessed his brother's execution by lethal injection in 1999.
How did Manuel Babbitt become one of the 827 first-degree murderers
chosen for California's ultimate penalty? The same question is being
asked, in effect, by a state commission that tried to learn whether
race or other inappropriate factors have been determining who gets
the death penalty and who does not.
After failing to obtain most of the relevant data, the California
Commission on the Fair Administration of Justice, appointed by the
state Senate and chaired by former California Attorney General John
Van de Kamp, recently called for legislation requiring prosecutors to
collect and report all information on their decisions whether to seek
the death penalty. The commission also wants courts and defense
lawyers, as well as prosecutors, to collect and report information
showing whether race affects the outcome of murder prosecutions.
The commission calculated that 87% of first-degree murders in
California could be prosecuted as death-penalty cases. But the great
majority are not. The commission was unable to find out what makes
the difference partly because most county district attorneys refused
to cooperate with Pepperdine University law school researchers
employed to construct and conduct a survey. District attorneys in
each county have their own standards and procedures for evaluating
murder cases. But even those internal rules are kept secret in most
counties.
Some information is available, however, from other sources. It
reveals disturbing patterns. Records show administration of the death
penalty is highly selective -- 5.6% of about 12,000 first-degree
murderers now in prison are sentenced to death.
Since capital punishment was reinstated in California in 1977, death
sentences against black defendants, but not Latinos, have been
disproportionately enormous by almost every measure: population,
homicide rates, victim data and the sentencing patterns of other states.
California's 5-to-1 ratio of blacks on death row to blacks in the
state population, measured in percentages, is much higher than the
ratios in Texas, Georgia, Alabama and South Carolina. The national
average is 3 to 1.
Most of the raw data come from published and unpublished reports of
statisticians in the state Department of Justice, the Department of
Corrections and Rehabilitation, and the California Appellate Project,
which provides technical support to defense lawyers appointed by the
state Supreme Court in capital appeals. The project tries to collect
ethnic data matching death row inmates and victims, and does its best
to verify the information.
The problem with the high death penalty rate for blacks isn't the
number arrested for homicide. Twenty-four percent of the people
arrested for homicide are black, but blacks make up 36% of the
current death row population. Latinos are 46% of homicide arrestees
but 20% of death row inmates.
One factor causing this imbalance seems to be a large number of cases
in which blacks have been sentenced to death for killing white
victims. Statewide, where the victim's race is known, nearly half of
all death sentences against black defendants have involved the
killing of at least one white victim. In death sentences against all
ethnic groups, 59% have involved a white victim. Yet whites are only
about 22% of homicide victims.
Sociologists Glenn Pierce and Michael Radelet, authors of "The Impact
of Legally Inappropriate Factors on Death Sentencing in California
Homicides, 1990-1999," say victim statistics are key to understanding
the disparities that show up in the death row population. They
concluded that in homicides with comparable circumstances, the
likelihood of getting a death sentence for killing a white victim was
vastly greater than for killing a black or Latino.
The U.S. General Accounting Office reported in 1990 that those who
murder white victims are most likely to be sentenced to death
nationally.
None of the numbers proves that race is the reason why some murderers
have been sentenced to death but not others. And much more
information would be needed to prove or disprove a connection between
the district attorneys and any bias that may exist.
The problem may lie elsewhere, within or outside the criminal justice
system. Pierce and Radelet suggested bias may enter a case when
police investigators work harder to collect evidence in the deaths of
white victims.
"We just deal with the cases as they come in the door," says Albert
Locher, Sacramento County's assistant district attorney. "The
district attorney doesn't investigate the cases or have an effect on
who commits what crimes."
Even Bill Babbitt thinks race was just one of several reasons his
brother was put to death. Among other possible factors: Poor people
like Manny Babbitt often do not get good lawyers. Manny Babbitt's
lawyer later resigned from the bar with disciplinary charges pending.
The legislative proposal by the Commission on the Fair Administration
of Justice doesn't cover all the possible reasons why so many blacks
are on death row. And the recommendation already is being opposed by
police, prosecutors and victims' representatives, who say there's
been no evidence of abuse by prosecutors in three decades of deciding
which murders warrant the death penalty.
The critics also don't want prosecutors to adopt formal, written,
public policies on when they'll seek the death penalty, as the
commission has recommended. Such documents would serve primarily to
create new grounds for condemned prisoners to challenge their
convictions, the critics say.
They may be right. Maybe racial factors haven't been influencing
prosecutors' decisions to ask for the death penalty. If that's true,
though, developing and disclosing more information might reassure
Bill Babbitt and the state's policymakers, and it would improve
public confidence in California's criminal justice system.