Ebony and Irony

Posted: Jun 30, 2008 12:00 AM
Ebony and Irony

Barack Obama just announced his disappointment with the Supreme Court ruling making it unconstitutional to execute those who rape children. Many were surprised that he would support capital punishment given that it is a position traditionally associated with conservatism. But I wasn’t surprised. Like affirmative action, the death penalty is just another policy Obama supports because it so clearly discriminates against white people.

The role of race in executions first became a hot topic in 1972 when the Supreme Court placed a moratorium on executions because of the way Georgia was allowing race to creep into the punishment process. Georgia was doing a good job of instructing jurors during the guilt/innocence phase. But, then, they allowed jurors – so often twelve white people - unbridled discretion in deciding which convicted murderers were to be executed.

Consequently, for a time, there was an 89% chance that a black man would be sentenced to death (sentenced in Georgia but not actually executed) for killing a white man. During the same time period, the likelihood of a white man being sentenced to death for killing a black man was 0%.

So, in 1972, when data convinced the High Court that the death penalty was unconstitutional – not per se but as applied – the justices made states re-write their death penalty statutes (See Furman v. Georgia, 1972). The Court wanted to make certain that – at least when assigning the ultimate penalty – race took a back seat to legal sentencing factors.

States did re-write their statutes and the Court approved of new capital punishment sentencing procedures in Georgia (and elsewhere) in a case known as Gregg. This ushered in what is now known as the post-Furman era.

Criminologists have been keeping a watchful eye on death penalty demographics throughout the post-Furman era. For example, Robert Bohm – formerly a professor in the UNC system where I teach - published an article on race and the death penalty after the first 120 post-Furman executions. Bohm was forced to admit that a majority of those 120 executions were of whites.

Nonetheless, Bohm tried to argue for the possibility of a racial conspiracy against blacks in the post-Furman era. By breaking the first 120 post-Furman executions into deciles (ten groups of twelve) he was able to detect a possibly racist trend. This view was based on the fact that 75% of the first twelve executions were of whites while just over 50% of the first 120 executions were of whites.

Bohm actually stated that he believed, in the post-Furman era, states were making a concerted effort at first to execute more whites. The idea was that when no one was looking they would revert to their old ways of executing more blacks than whites. He concluded – looking at less than sixty blacks put to death years into the post-Furman era - that the criminal justice system tried to control blacks by extermination or, more importantly, threat of extermination.

It is worth noting that Bohm did not, however, use the term “extermination” in reference to the thousands of blacks killed by other blacks every year. This is largely due to the fact that he did not mention that thousands of blacks are killed by other blacks every year. Criminologists don’t talk about blacks killing other blacks. They just let it happen.

Now, about a decade and a half has passed since Bohm’s unsophisticated little study. And what do we find? It is still the case that most of those executed in the post-Furman era are white. This is a problem – for the liberals, of course - because white people simply do not commit most of the homicides in America.

But beware of a potential sleight of hand by the author of this provocative column. When we are talking about the death penalty, we are talking about a penalty reserved for first degree murders. Statistics indicating that 55% of homicide arrests are of blacks should be qualified, should they not? After all, not all homicides are first degree murders. Not by a long shot.

Here is where the radical death penalty abolitionists have painted themselves in a corner. For years, they have lamented the fact that, for example, the doctor (read: wealthy white man) who loses a patient in an unnecessary surgical procedure has not committed a death eligible offense. He has committed involuntary manslaughter at best or depraved heart murder (a form of second degree murder) at worst. He has not committed first degree murder by any stretch of the imagination and so he escapes the ultimate penalty.

The suggestion here is that the law defines the kinds of killings black people commit as death eligible and the kinds of killings white people commit as death ineligible. Of course, this all goes to show that there is no common sense distinction that is immune to an accusation of institutional racism.

Put simply, there is no evidence to suggest that blacks aren’t committing the majority of homicides in general and first degree murders in particular. Nor is there any evidence to suggest that proponents of affirmative action will demand that we begin to execute more blacks to make up for their present under-representation in American death chambers. And we can safely say they are under-represented by ignoring their representation in the general population (an irrelevant 12%) and looking at their representation among the population of killers (a relevant 55%).

Some find it ironic that Obama supports both capital punishment and affirmative action. The real irony is that his support for the death penalty may cause whites to elect a black president. And that having a black president might be a death sentence for affirmative action.