Death Penalty Report Deepens Debate Over Bias
Execution Backers and Opponents Offer Different Explanations For Why Minorities
Are a Majority on Death Row
Terry Horne

Indianapolis Star
December 10, 2000

The execution team at the U.S. Penitentiary in Terre Haute got to stand down, again. The resumption of federal executions was postponed Thursday when President Clinton gave a six-month reprieve to Juan Raul Garza. The 44-year-old drug smuggler from Brownsville, Texas, was convicted in the murders of three people. The reprieve, the second Garza has received, came just five days before he was to be strapped to a gurney in the prison's specially constructed -- yet still unused -- execution room and receive an injection of lethal drugs.

Clinton wasn't motivated by concern about Garza, though. Instead, he cited a U.S. Department of Justice survey that showed that blacks, Hispanics and other minorities accounted for 80 percent of the people charged with federal crimes punishable by death. The study also found that nearly half of the capital punishment requests were sought by just a handful of prosecutors, primarily in the South. "No one confronted with those statistics can help but be troubled," Clinton said Thursday. "I have simply concluded that the examination of possible racial and regional bias should be completed before the United States goes forward with an execution." On both the federal level, and to a lesser extent on the state level in Indiana, minorities are over-represented on Death Row, compared to their numbers in the general population.

Is racial bias the cause?

The statistics may be troubling, but supporters and opponents of the death penalty offer different explanations and sometimes even different numbers. Of the 19 federal inmates awaiting execution in Terre Haute, all but four are minorities. And the imbalance is likely to increase when a federal judge in Kansas City formalizes the death sentences for two Hispanic drug dealers. The Justice Department's Sept. 12 survey found that between 1988 -- when Congress re-authorized the federal death penalty -- and 1994, federal prosecutors sought the death penalty against 47 defendants. Forty were minorities.

Concerned about the possibility of racial bias, the Justice Department, beginning in 1995, ordered all 94 U.S. attorneys -- including the two in Indiana -- to submit a memo whenever a person was charged with a federal crime punishable by death. The prosecutors have to explain their reasons for seeking or not seeking the death penalty, and each memo must be reviewed by a Justice Department committee and Attorney General Janet Reno. Between 1995 and July of this year, 682 memos were written. In about three-fourths of those cases, prosecutors decided not to seek the death penalty. In 40 of the 94 judicial districts, including Indiana's two, prosecutors have not asked permission to seek the death penalty. In the Southern District of Indiana, which covers the central and southern counties, the only occasion for seeking the death penalty in the last five years came in 1997. The U.S. attorney's office charged two drug dealers, Anthony Spradley and Mark Willis, with the killing of a federal informant. Spradley and Willis were black, and so was their victim. All were members of an Indianapolis gang called the Baja Boys. U.S. Attorney Timothy Morrison said race was never an issue in the decision not to seek the death penalty. The key factor was the case itself. Prosecutors decided the evidence wasn't strong enough to persuade a jury to recommend the death penalty, he said.  The trial proved that assessment right, and then some. The jurors convicted Spradley and Willis of drug dealing but acquitted them on the murder charges.

Three states lead

The Justice Department's report shows that just a handful of states accounted for most of the "troubling" numbers. Federal prosecutors in Missouri, Texas and Virginia made 52 of the 183 death penalty requests during the last five years. All but seven of the 52 defendants were minorities.
Yet the report also showed a contrary trend. Of the 682 cases in which the death penalty was possible, prosecutors requested it in only 25 percent of the cases involving black defendants. The rate was even lower for Hispanics. But prosecutors sought the death penalty against 36 percent of the white defendants.

Still, in raw numbers, minorities accounted for most of the death penalty requests. To death penalty opponents, this proves race is a factor when prosecutors decide which cases to file. Garza's attorney, Greg Wiercioch, noted that between 1988 and 1994, federal prosecutors in Texas sought the death penalty four times. All four defendants, including Garza, were Hispanic. At that time, the only federal law authorizing the death penalty was the "drug kingpin" statute. Wiercioch said he finds it hard to believe that only Hispanic drug dealers were involved in killings during this period.  "I don't think the Justice Department can claim that race and geography played no role in the death sentence against Juan Raul Garza," he said.

Fewer minorities

The racial composition of Indiana's Death Row in Michigan City is far more white than its counterpart in Terre Haute. Yet of the 43 inmates, 13 are black. That's 30 percent in a state where blacks represent just 8.4 percent of the general population. Indianapolis defense attorney Monica Foster, who has tried many death penalty cases, thinks the state's system is racially biased. But, she said, it's often the race of the victim that's more important than the race of the defendant. Prosecutors tend to request the death penalty when the victims are white, Foster said. "Slayings in the African-American community don't generally gather the attention that slayings in the suburbs attract," she said. Such media bias influences prosecutors, she said. One local study suggests that capital punishment filings go up in the years when prosecutors are running for re-election.

Marion County Prosecutor Scott Newman scoffs at claims that the race of either the victim or the defendant plays a part in his decisions.  He thinks the death penalty is both a deterrent and a just punishment for some crimes. Newman says critics are looking at the wrong numbers. They are comparing Death Row populations to the general population. They should be comparing Death Row to the population of convicted murderers in the state's prisons, he said. According to the Indiana Department of Correction, 44 percent of the 1,566 convicted murderers in prison are black. "Which means that blacks are less likely to get the death penalty than whites who are convicted of murder," Newman said. "So when you talk about racial disproportion, that is no small point. That is a major point." By DOC's records, nine inmates on Indiana's Death Row were sent there by Marion County judges. Four are white, five are black.  "(Most of) the black defendants I have tried for the death penalty have killed black victims," Newman said.

Ruling cited

Kevin McNally, a Kentucky defense lawyer who has handled about a dozen federal death penalty cases, blames Congress and prosecutors for the racial imbalance in the federal Death Row system. In 1972, a U.S. Supreme Court ruling invalidated capital punishment laws as being too vague. The court required states and the federal government to draft new laws. Many of the federal laws since enacted, starting with the drug kingpin statute in 1988, target crimes that disproportionately affect minorities, McNally said. Even more of a problem, though, is the discretion that U.S. attorneys have in deciding which crimes to prosecute, he said. At least in state courts, local prosecutors have to handle all the cases that are presented to them. But federal prosecutors can pick and choose. McNally thinks, as does Foster, that prosecutors are influenced by politics and publicity. So while a murder committed during the armed robbery of a convenience store can be a federal crime, few are prosecuted, he said. Yet cross-racial carjackings and drug-smuggling operations, which involve a far higher percentage of minorities, are frequent targets, McNally said. "So you end up, after all this time and effort, with the most racially lopsided Death Row in the country."

Real life

For Juan Raul Garza, the arguments about race and geography are not theoretical, but the thread on which his life hangs. His best hope for old age rested on persuading Clinton to commute his death sentence to life imprisonment. Clinton declined to do that, instead choosing to pass that decision to the next president. Arkansas lawyer Jeff Rosenzweig wasn't surprised. A defense attorney who used to talk regularly with Clinton, Rosenzweig saw Clinton's attitude toward capital punishment change. "I think this was about as far as he was ever going to go," Rosenzweig said of Clinton's decision last week. He failed to persuade Clinton when he was the Arkansas governor running for president to stop the execution of a poor black man. Garza's execution hasn't been stopped either. It's been 37 years since a federal inmate was executed, and Garza remains first in line.
 
 
 

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