Numbering Their Days

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What course of appeal does a prisoner have if he believes he has been handed a death sentence largely because he is black? At the moment, none. The Racial Justice Act, or some form of it, might open up an avenue -- but only if it remains part of the omnibus crime bill now before Congress. The act would allow minority inmates on death row in federal and state prisons to use statistics to show that their sentence was part of a pattern of discrimination. For example, if the number of blacks sentenced to die or for whom prosecutors sought the death penalty in a state was vastly disproportionate to the number of whites involved in similar crimes, penalties -- though not convictions -- might be reversed.

While the Racial Justice Act's fine points are steeped in legal arcana, the bill inspired fierce rhetoric in the Senate last week. The act, said Orrin Hatch of Nevada, "has nothing to do with racial justice and everything to do with abolishing the death penalty" by employing "unreliable and manipulable statistical quota." To the act's defense came Carol Moseley-Braun of Illinois -- with statistics. Since 1988, she said, the government has sought the death penalty for drug kingpins in 36 cases involving four whites, four Hispanics and 28 blacks. Said Moseley-Braun: "Keep in mind that 75% of the defendants charged under this statute have been white." The Senate voted 58-41 against the act, but its fate -- and its linkage to the crime bill -- remains uncertain. It must now go into conference with the House, which passed it, 219 to 217.

The issue has endured a long struggle in Washington. In 1987, Warren McCleskey, a black factory worker in Atlanta, brought an appeal before the Supreme Court. McCleskey, who had been sentenced to death in the killing of a white police officer in 1978, argued that sentencing patterns in Georgia proved racial bias. The court fractured 5-4 against McCleskey, even though Antonin Scalia conceded, in a note to Thurgood Marshall, that prosecutorial and jury decisions are influenced by "the unconscious operation of irrational sympathies and antipathies, including racial." McCleskey was executed in September 1991.