Death Penalty in America, Legal Studies 485, Spring 2003

New York Times, February 14, 2003

Death Penalty Cases Raise Race Questions

By WILLIAM GLABERSON and BENJAMIN WEISER

Will the cases in the New York region in which Attorney General John Ashcroft has ordered federal prosecutors to seek the death penalty involve black or Hispanic defendants, newly released data show.

The prosecutors, in New York and Connecticut, were put at the focus of a controversy by Mr. Ashcroft's rejection of their recommendations on the cases, but the information about the 12 defendants' racial identities moves those prosecutors into a wider debate about the fairness of the federal death penalty.

In the final year of the Clinton administration, a Justice Department study found that 80 percent of the defendants who faced capital charges in federal cases nationwide were members of minorities.

Mr. Ashcroft has said there is "no evidence of racial bias" in federal death penalty cases. A spokeswoman added this week that Mr. Ashcroft is not told a defendant's race or ethnicity when he reviews prosecutors' death penalty recommendations.

"He is reviewing the law and the facts of the cases," said the spokeswoman, Barbara Comstock, "so it's entirely race-neutral in terms of how it's reviewed by the attorney general."

Some lawyers say the central issue is not whether Mr. Ashcroft knows the defendants' race but the combined effect of his decisions.

"What the attorney general is doing raises serious questions as to whether he is creating or exacerbating a pattern of discrimination in the application of the federal death penalty," said Ronald J. Tabak, a New York lawyer who is cochairman of an American Bar Association committee on the death penalty.

Of the cases in the New York region, 8 of the defendants are African-American and 4 are Hispanic, according to figures from the Federal Death Penalty Resource Counsel Project, which provides information to defense lawyers.

The group's data show a similar pattern nationally. Of the total of 28 cases in which Mr. Ashcroft is known to have ordered prosecutors to seek death, the group said, 2 of the defendants are white, 19 are African-American, 5 are Hispanic, 1 is Native American and 1 is of Asian descent.

According to the group, Mr. Ashcroft has considered prosecutors' recommendations on the death penalty for 274 defendants nationwide. Twenty percent of those defendants are white, according to the group.

Mr. Ashcroft's spokeswoman, Ms. Comstock, said criticism of Mr. Ashcroft's rejection of prosecutors' recommendations came from opponents of the death penalty who simply want to halt executions.

She said the problem of enforcing federal laws affected the death penalty as much as civil rights. The Justice Department is charged by Congress with enforcing federal laws equally around the country, she said, "even if there's a state that may not like particular laws."

Questions about racial disparities always hover over the debate about the death penalty, although some analysts have said that in many states the disparities in treatment of defendants is based not on their race but on the race of their victims.

Nevertheless, for years much of the debate about the federal death penalty has focused on the race of those who may face execution. The Clinton administration study found that during a five-year period ended in 2000, 134 of the 682 defendants who faced capital charges, or about 20 percent, were white.

Because so many of the cases in which Mr. Ashcroft has rejected prosecutors' recommendations against execution are in the New York region, some lawyers say the debate about the racial effect of the federal death penalty is now likely to center on the region. Of the 28 cases nationally in which Mr. Ashcroft has rejected the prosecutors' recommendations, 10 are in New York and 2 are in Connecticut.

That debate involves differing views of what statistics actually prove about the racial effect of federal death penalty laws.

Some studies have suggested that although minority defendants face the federal death penalty in numbers far in excess of their proportion of the population, there is no indication that racial bias is the cause of that disparity. One explanation, some lawyers say, is that some laws that make the death penalty a possible punishment involve crimes, like drug-related murders, for which minority defendants have been arrested in greater numbers than whites.

But some critics of the death penalty said this week that the high percentage of minority defendants in the cases where Mr. Ashcroft has rejected prosecutors' recommendations reflected a systemic problem with the federal death penalty.

"Anybody administering the death penalty always winds up one day shaking their head and saying, `Gee, we keep trying to eliminate racial bias and it keeps returning,' " said David A. Ruhnke, a veteran death penalty defense lawyer.

Supporters of the death penalty, including Mr. Ashcroft, have tended to cite statistics they say show that there is no evidence of racial bias in the federal death penalty system. For example, when Mr. Ashcroft has said minority defendants are less likely to be subject to the death penalty than white defendants, he referred to studies showing that, as a percentage of the number of defendants of each race, prosecutors seek death less often for minority defendants than for white defendants.

Critics have said, though, that Mr. Ashcroft has departed from the views of his predecessor, Janet Reno, who said she was "sorely troubled" by indications that the federal death penalty was not applied uniformly to all ethnic groups.

George Kendall, a lawyer at the NAACP Legal Defense and Educational Fund Inc. who specializes in death penalty defense, called it a "very odd coincidence" that so many of the defendants Mr. Ashcroft had earmarked to face the death penalty were members of minorities.

He said the information about the racial identity of the defendants confirmed concerns that "racial bias is influencing the administration of the federal death penalty."

Return to homepage