The New York Times
by David Dow
LAST week was the 35th anniversary of the return of the American death
penalty. It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus
(who died last month), along with two colleagues, published a study
examining more than 2,000 homicides that took place in Georgia beginning
in 1972. They found that black defendants were 1.7 times more likely to
receive the death penalty than white defendants and that murderers of
white victims were 4.3 times more likely to be sentenced to death than
those who killed blacks.
What became known as the Baldus study was the centerpiece of the Supreme
Court’s 1987 decision in McCleskey v. Kemp. That case involved a black
man, Warren McCleskey, who was sentenced to die for murdering a white
Atlanta police officer. Mr. McCleskey argued that the Baldus study
established that his death sentence was tainted by racial bias. In a
5-to-4 decision, the Supreme Court ruled that general patterns of
discrimination do not prove that racial discrimination operated in
Of course, the court had to say that, or America’s capital justice
system would have screeched to a halt. Georgia is not special.
Nationwide, blacks and whites are victims of homicide in roughly equal
numbers, yet 80 percent of those executed had murdered white people.
Over the past three decades, the Baldus study has been replicated in
about a dozen other jurisdictions, and they all reflect the same basic
racial bias. By insisting on direct evidence of racial discrimination,
the court in McCleskey essentially made the fact of pervasive racism
legally irrelevant, because prosecutors rarely write e-mails announcing
they are seeking death in a given case because the murderer was black
(or because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of
Harris County, Chuck Rosenthal, resigned after news emerged that he had
sent and received racist e-mails. His office had sought the death
penalty in 25 cases; his successor has sought it in 7. Of the total 32
cases, 29 involve a nonwhite defendant.
Since 1976, Texas has carried out 470 executions (well more than a third
of the national total of 1,257). You can count on one hand the number
of those executions that involved a white murderer and a black victim
and you do not need to use your thumb, ring finger, index finger or
Well, you might need the pinkie. On June 16, Texas executed Lee Taylor,
who at age 16 beat an elderly couple while robbing their home. The
79-year-old husband died of his injuries. Mr. Taylor was sentenced to
life in prison; there he joined the Aryan Brotherhood, a white gang,
and, four years into his sentence, murdered a black inmate and was
sentenced to death. When Mr. Taylor was executed, it was reported that
he was the second white person in Texas executed for killing a black
person. Actually, he should be counted as the first. The other inmate,
Larry Hayes, executed in 2003, killed two people, one of whom was white.
The facts surrounding Lee Taylor’s execution are cause for further
shame. John Balentine, a black inmate, was scheduled to die in Texas the
day before Lee Taylor’s execution. Mr. Balentine’s lawyers argued that
his court-appointed appellate lawyer had botched his case, and that he
should have an opportunity to raise issues the lawyer had neglected.
Less than an hour before Mr. Balentine was to die, the Supreme Court
issued a stay.
Lee Taylor’s lawyers watched the Balentine case closely; their client
too had received scandalously bad representation, and, they filed a
petition virtually identical to the one in the Balentine case. But by a
vote of 5-to-4, the justices permitted the Taylor execution to proceed.
If there were differences between the Balentine and Taylor cases, they
were far too minor to form the boundary between life and death. But
trivial distinctions are commonplace in death penalty cases. Justice
Lewis F. Powell Jr., one of the five justices in the McCleskey majority,
retired from the court in 1987. Following his retirement he said he had
voted the wrong way. If Justice Powell had changed his mind sooner,
Warren McCleskey, who was executed in Georgia in 1991, would still be
And because of a vote from a single Supreme Court justice, John
Balentine lives while Lee Taylor died. When capital punishment was
briefly struck down, in 1972, Justice Potter Stewart said the death
penalty was arbitrary, like being struck by lightning.
It still is, and it’s the justices themselves who keep throwing the bolts.