Race, Justice and Capital Punishment
FARAI CHIDEYA, host:
Tookie Williams' case has renewed debate over prejudice in our justice system. African-Americans make up 12 percent of the US population but account for more than 40 percent of death row inmates. The race of murder victims is also an issue. Juries are far more likely to hand down a death sentence in cases involving white victims. For more on the color of capital punishment, we're joined at our Washington, DC, headquarters by Paul Butler, former federal prosecutor and professor of law at George Washington University.
Thanks so much for joining us, Paul.
Professor PAUL BUTLER (George Washington University): It's great to be here, Farai.
CHIDEYA: Well, let me talk to you, first of all, about prosecutors. I think that something like 98 percent of DAs, district attorneys, are white. Does that have an influence on these issues? And tell us more about what you did as a federal prosecutor.
Prof. BUTLER: Well, I never prosecuted anybody for death penalty cases, in part because I'm against the death penalty, but in part because I was a prosecutor of white collar criminals and the reality, Farai, is that virtually everybody on death row is a poor person. They're charged with crimes where often they have ineffective lawyers and the reason that they get the death penalty isn't so much based on the crime they committed but based on factors that really shouldn't be relevant, like the quality of their lawyer, and like whether the person they killed was white or black. If you're--kill a white person, you're much more likely to get the death penalty than if you kill a black person. And if you're an African-American who kills a white person, that's the most common category of people who get the death penalty.
CHIDEYA: But, in fact, there was a Supreme Court case, McCleskey vs. Kemp, in 1987, that basically said, `Well, hey, there's discrepancies, but we can't do anything about it.' So what influence has that had on the whole debate over the color of punishment?
Prof. BUTLER: Well, a lot of people think that that's a worse case than the Plessy vs. Ferguson case, because in Plessy vs. Ferguson, the court at least required equality. The court said separate but equal is the law of the land, and, of course, that was overturned. In the McCleskey case, the courts said, `There is a risk that some people are being sentenced to death on the basis of race. But it's not an unconstitutionally acceptable risk. That is, it's a constitutionally acceptable risk because the court said prosecutors need this discretion and there's always a risk that when white people exercise discretion they're going to use race to make decisions about who gets the death penalty; prosecutors, about whether they should seek it; and judges and juries, about whether they should impose it.
CHIDEYA: According to some studies, race is just about the most important factor, except for torture. If victims were tortured, that's extremely likely to help juries decide for the death penalty, but next to that it's race. It's not necessarily how many people were killed or, you know, the manner in which they were killed. So race definitely influences juries. And in 1998 Kentucky was the first state that had the death penalty to pass something called the Racial Justice Act. Now what is that act and why hasn't it gone to more states?
Prof. BUTLER: Well, what these acts do is allow statistics about how race matters with who gets the death penalty to be used as a reason for juries not to impose death in particular cases. But what we see, Farai, is that there are some cases in which virtually everybody gets the death penalty, some cases in which nobody gets the death penalty. So a classic case where everybody gets it is a mass murderer. Classic case in which virtually nobody gets it is a man who kills his wife. Now that shows you other--how arbitrary the penalty is, but usually those men don't get it. There's this middle range of cases, and an example there is someone who kills during an armed robbery, where race matters. If you are a black person who kills a white person in that kind of crime, you're most likely to get the death penalty. And actually, in the McCleskey case, the court said it's really an issue for legislatures, not judges, to decide, and so what Racial Justice Acts do is to allow juries to consider discrimination and racism in making the decision about whether to impose the death penalty.
CHIDEYA: In the case of Tookie Williams, he was someone who was convicted for killing white and Asian victims, not black victims. Do you believe, given what we've just talked about, that this is making a difference in his case?
Prof. BUTLER: Again, statistically, the evidence suggests that it is. And now here's the thing, Farai. You know, regardless of whether Mr. Williams is guilty or not, he disputes his guilt. The question is whether there's a role for mercy and forgiveness in our justice system. And people are still punished harshly even when their sentences are commuted. It's just that the ultimate sanction, execution, isn't imposed. So we look at somebody like Mr. Williams, who's been on death row for decades; he's reformed his life. He's rehabilitated. And so the issue is whether, based on the worst day of his life, he should be condemned or whether--again, not that he shouldn't be punished, but just whether he should be allowed to live.
CHIDEYA: Well, when you look at Governor Schwarzenegger's position on this, you've got a situation where you have a governor that's been bruised, absolutely politically bruised, by a special election that he himself called for. Some people are saying that that means that clemency would be a good move for him. But even though support for the death penalty in America has ebbed, it's still well over 50 percent. So once the courts have exhausted all of the appeals, or prisoners have exhausted all their appeals with the courts, it's up to politicians in office, like governors, to make these decisions. Is that a good method? I mean, it's simply the way it is, but from a legal point of view, is it smart for governors ultimately to have that discretion?
Prof. BUTLER: Well, there is still a role for mercy and redemption in our justice system, so to the extent that the governor and the president has the last word, then, yes, that role is appropriate. The problem, Farai, as you suggest, is when it gets political. Well, one of the last governors to commute sentences in California--actually, the last one--was Ronald Reagan. Before that, again, politics has always impacted the process. There was a case in which a governor believed that another prisoner's sentence should be commuted. But he also had to get a minimum-wage bill passed and so he made a deal with the Republicans: `OK, we'll execute this guy if you-all agree to vote for the minimum-wage bill.' So that shows you how, when politics infects the system of who gets to live and who gets to die, it's just fundamentally unfair, some would say barbaric.
CHIDEYA: Very briefly--we're almost out of time--as you mentioned, Tookie Williams says he's innocent. In many cases, people who express remorse and admit that they've killed people are more likely to get clemency. Is that going to be a factor here?
Prof. BUTLER: Well, it certainly will be a factor, but the point is that Mr. Williams has really lived a remarkable life. He's impacted thousands, if not millions, of children and teen-agers who say that they won't live a life of crime, based on Mr. Williams' example, so, hopefully, the governor will consider the whole picture, and, again, not just what Mr. Williams is accused of doing on the worst day of his life.
CHIDEYA: We've been speaking with, at our Washington, DC, headquarters, Paul Butler. He's a former federal prosecutor and professor of law at George Washington University.
Thank you so much, Paul.
Prof. BUTLER: You're very welcome.
CHIDEYA: This is NPR News.