University study finds death penalty racially unfair

Race still plays a major role in who lives and who dies for murders committed in North Carolina, a comprehensive new University study has found.

As a result, to avoid troubling moral and legal problems, the state should impose a moratorium on the death penalty, at least until legislators and others can examine it further and figure out how to carry it out fairly -- if that's possible, opponents of the death penalty say. Among those are the N.C. Council of Churches and the Common Sense Foundation.

Isaac Unah and John Charles Boger, professors of political science and law, respectively, at Carolina conducted the nine-month study. Helping were eight Class of 2000 School of Law graduates who fanned out across the state to pore through extensive court, police and lawyers' records on a 502- case subsample of almost 4,000 homicides. They released preliminary findings from the rigorous effort April 16.

"We found that in North Carolina when a white person is murdered, a defendant is significantly more likely to get the death penalty than when a black person is murdered," Unah said. "We also found that the race of the defendant, in interaction with the race of the victim, can be a factor in who gets the death penalty."

Their work, which involved examining and analyzing what happened in North Carolina homicide cases between 1993 and 1997, is the first scientific investigation of the death penalty in North Carolina in more than 20 years, the two said. It's also the first systematic search for evidence of racial discrimination in capital sentencing anywhere in the South since 1984 and the most recent in the United States.

The new study is especially timely, they said, because the N.C. General Assembly will soon consider a legislative study commission recommendation to call a temporary halt to executions in North Carolina.

"While the study is ongoing, we are very confident that the fundamental findings will not change," Unah said. "Race still does matter, particularly when a non-white murders a white."

Between 1993 and 1997, when defendants murdered whites, their odds of receiving a death sentence, on average, increased by 3.5 times over those who killed non-whites, the two said. That race-of-victim bias is substantial and statistically significant. The effect appeared in a wide variety of analyses and stages of the criminal justice process from indictment and trial to capital juries' final penalty decision.

Overall, non-white defendants who murdered whites received a death sentence at more than twice the rate of whites who killed whites -- 6.4 percent to 2.6 percent, they found.

"Even when the research narrowed to `death-eligible' homicides -- homicides eligible for death under North Carolina's statutes - the racial disparities remained large," Unah said. "Of non-whites who murdered whites, 11.6 percent received death, while only 6.1 percent of whites who murdered other whites and only 4.7 percent of non-whites who killed other non-whites were sentenced to death."

The researchers received grants from the N.C. Council of Churches, the Common Sense Foundation, the Open Society Foundation and a variety of other community groups to look into whether racial discrimination still interferes with North Carolina's use of capital punishment.

"The five-year period we examined was as near to the present as we could get and still have cases that have been tried and appealed," Boger said. "What we have found is clear and disturbing evidence that North Carolina's capital system in the 1990s continues to be infected with patterns of racial discrimination that cannot be explained by any of the legitimate sentencing considerations that have been sanctioned by North Carolina's legislative and judicial branches."

In designing their study, Unah and Boger worked closely with David Baldus of the University of Iowa, the nation's leading expert on capital sentencing systems, to collect data on 113 separate factors about each crime. Among those were charges, nature of the crimes, each defendant's background and character, evidence, motives, victims' background and both aggravating and mitigating factors.

In 1941, in the first study of its kind, Guy Johnson of what is now the University's Odum Institute for Research in Social Science published a report showing that among 330 murder cases in five N.C. counties, 32 percent of all black defendants -- but only 13 percent of white defendants -- received death sentences when victims were white. In addition, death sentences were imposed in 17.5 percent of all white victim cases but only four-tenths of 1 percent of black victim cases.

Relying on that research and subsequent similar studies, the U.S. Supreme Court in Furman vs. Georgia struck down all capital punishment statutes in 1972 as unconstitutional. That decision forced states to re-write their death penalty laws to try to eliminate race as a factor in how defendants were punished.

In defending Warren McCleskey, a black man sentenced to death for murdering a white Georgia police officer, Boger led a challenge to Georgia's new statute that went all the way to the Supreme Court in 1987. At the time, the University professor worked for the NAACP Legal Defense Fund. Based chiefly on two studies Baldus had done showing race was still a factor in death sentences, Boger argued that McCleskey's sentence violated the U.S. Constitution's Eighth Amendment ban against cruel and unusual punishment and the 14th Amendment's promise of equal protection under the law. A sharply divided court ruled 5-4 against the defendant.

Writing for the majority, Justice Lewis Powell said the studies did not show McCleskey himself had been discriminated against and that legislatures were better qualified than the court to evaluate and act on statistical studies.

"We suspect that if a state like North Carolina, which has done a number of things to try to mitigate the effects of racial disparities in capital sentencing, still has those disparities, then it's not alone, and this is probably a regional and maybe even a national problem," Boger said. "In my personal opinion, the death penalty ought to be put on hold for now. There are enough serious questions about it that North Carolina ought to take a close look at it unpressured by the imminence of particular executions."

The N.C. Supreme Court, the N.C. Court of Appeals, the state's trial courts, the Office of the Chief Medical Examiner, the N.C. Department of Corrections, the Institute of Government at Carolina and the Administrative Office of the Courts all cooperated with the study.