THE CAPITAL CANARD OF DEATH PENALTY DISCRIMINATION

               The persistence of falsehood is one of the most frustrating aspects of law, policy, and politics in our distorted and darkening age.  Among the left, the media, and a gullible general public, deceptive canards with no basis in reality are routinely paraded and assumed as fact -- producing grotesquely misconceived and unjust laws, policies, and decisions as a result. 

                Despite the facts that there has been no warming in the global climate for 17 years, the Antarctic icecap has been expanding extensively, and intrepidly honest scientists have stepped forward to dissent against doctrinaire and deceptive alarmists, rabid "climate change" fanatics continue to propound the illusion that the theory of catastrophic man-made global warming is "settled."

                The persistence of widespread illegal discrimination against blacks is taken for granted on the left and in the media and universities, when in fact federal and state governments have been relentlessly engaged, on the contrary, in pervasive and institutionalized discrimination in favor of blacks (under the guise of "affirmative action"), and to the detriment of whites, for over 40 years. 

                The pro-homosexual revolution is suddenly and widely accepted as innocuous in society, even while incontrovertible evidence of the dangerous, disease-plagued consequences of known homosexual behaviors lies ignored in the reports of the Center for Disease Control.  Just as one example, a 2010 CDC Fact sheet reported that "the rate of new HIV diagnoses among MSM in the U.S. is more than 44 times that of other men."  See http://www.latinoaids.org/programs/3mv/docs/FastFacts-MSM-FINAL508COMP.pdf.

                And an entirely fictional and patently illogical "war on women" is blazoned as gospel among large elements of the left and urban millennials, even while legions of female CEO's, Supreme Court justices, Presidential favorites, governors, and entertainment industry mavens obliviously expand their dominant roles in society.  (For more on this canard, see my last post, "The Female Achiever Who Exposed the War on Women over 40 Years Ago," at splashingrocks.blogspot.com).

                But few such canards are as persistently parroted, or as demonstrably false, as the undying, zombie-like fabrication that the death penalty is discriminatorily applied against blacks in the United States.  Unambiguous government statistics have demonstrated for decades that, on the contrary, the death penalty is disproportionately imposed on white murderers, and disproportionately avoided by black murderers.  The Justice Department's Bureau of Justice Statistics (BJS) most recent comprehensive report on U.S. death penalty statistics unambiguously confirms this once again, as the statistics in those reports have done for decades.  See Capital Punishment, 2012 – Statistical Tables (May 2014), http://www.bjs.gov/content/pub/pdf/cp12st.pdf.  But from President Obama to his media echo chamber to the liberal legal establishment, the chorus of racial agitators continues to propound this divisive and dangerous fallacy, against all evidence, for their own political and ideological purposes.

                The claim that the death penalty is discriminatorily applied against blacks goes back decades, but came to a head in the Supreme Court's crucial opinion in the 1987 case of McCleskey v. Kemp (reported at 481 U.S. 279).  In a 5-4 decision, the Court held that statistical evidence purporting to show that murderers of white victims were more likely to receive a death sentence did not establish that the death penalty had been applied in violation of the equal protection clause of the Constitution, absent evidence of a discriminatory purpose. Having drafted and submitted a successful brief in that case on behalf of the Washington Legal Foundation (WLF) supporting the State of Georgia's fair administration of the death penalty, I am intimately familiar with the case and the issues it presented.

                Even back when McCleskey was decided in 1987, the anti-death penalty element understood that official statistics simply did not support the claim that the death penalty was discriminatorily applied against black murderers, as compared to white murderers.  As we showed in our WLF amicus brief, BJS statistics showed then (as they do now) that a white killer was about 33% more likely to receive the death penalty than a black murderer.  That is, whereas only 12 blacks were sent to death row for every 1,000 blacks arrested for murder and manslaughter, a much higher ratio of 16 out of 1,000 whites arrested for those same crimes were sent to death row at the time of McCleskey. 

                Faced with these implacable numbers, the race-focused death penalty opponents adroitly shifted their theory.  They argued instead that the "system" discriminated on the basis of the race of the victim, rather than the race of the perpetrator. 

                Fortunately, albeit narrowly, the Supreme Court was not persuaded by this opportunistic sophistry.  Five members of the Court had the minimal sense to recognize that if there was no actual discrimination in the defendant's individual trial and sentencing -- and there was no such evidence in McCleskey's case -- any statistical "imperfections" in the collective outcomes of past capital cases could not alter that decisive fact.  A contrary result would have flown in the face of both logic and simple justice.  If McCleskey's arguments had prevailed, the trial of a capital case involving a white victim would be deemed discriminatory even before it had begun!

                What the Court did not also grasp was that the abolitionists' shifting their argument to base their discrimination claims upon the race of the victim revealed a circular fallacy in their reasoning. 

                In contending that there was unconstitutional discrimination because Georgia disproportionately imposed the death penalty in cases where the victim was white – presumably due to greater concern for such victims -- the abolitionists implicitly acknowledged that a nondiscriminatory system would have imposed the death penalty in greater proportions in cases where the victim was black.  But the vastly overwhelming majority of black-victim murders are committed by blacks.  If the "system" had sentenced a greater proportion of black-victim murderers to death – which the abolitionists' theory in McCleskey would require to negate victim-based discrimination in favor of whites -- it would also substantially increase the percentage of death penalties imposed on black perpetrators.  And then the NAACP, the ACLU, and other race-obsessed death penalty abolitionists would return to their claims that the death penalty discriminates based on the race of the perpetrator.  Heads we win, tails you lose.  Despite this circular flaw in their reasoning, the same race-based arguments that met defeat in the McCleskey case are still pursued today by those who have a vested interest in sustaining the myth that not only the death penalty but our overall system of criminal justice is permeated with anti-black racism.

                DOJ's latest compilation of death penalty statistics, however, refutes this racial canard even more conclusively than ever.  For roughly three decades now, whites have consistently received a disproportionately large number of death sentences in relation to their portion of the relevant population of homicide offenders, whereas the reverse is true with respect to black homicide offenders.

                The critical factor to remember in assessing the racial component of capital punishment in the U.S. is that the relevant population for purposes of proportionality analysis is not the overall population, but the population of those who have committed murder.  Under Supreme Court jurisprudence, and for all practical purposes, only those who have committed murder are eligible for the death penalty under the Eighth Amendment's cruel and unusual punishment clause. 

                Thus, the fact that blacks constitute only about 13% of the overall U.S. population does not mean that there is a discriminatory disproportion if significantly more than 13% of those sentenced to death are black.  But if blacks represented only 13% of those convicted of murder, yet represented a far greater percentage of those receiving death sentences, then there would be plausible grounds for claiming a discriminatory disproportion.

                In fact, however, data compiled by BJS shows that for the period 1980-2008, 52.5% of homicides were committed by blacks, whereas 45.3% were committed by whites. See BJS, Homicide Trends in the United States, 1980-2008 , Table 7 (Nov. 20111).  It follows that one would expect at least roughly comparable proportions along racial lines among those sentenced to death and executed.  But one would be wrong.

                BJS's 2012 Capital Punishment Report (Table 11) shows the number of U.S. persons executed by race since 1977.  During that period, 747 whites (56.6%) were executed, compared to only 451 blacks (34.2%).  To place the data in a more current context, the reported data for the 21st century (2000-2012) shows that 413 whites (57.2%) and 240 blacks (33.2%) were executed in the U.S. during that period.  In short, executions of white offenders dwarfed the number of black offender executions.

                The remarkable consistency of this government data strongly reinforces its validity as a comparative measure of how the U.S. criminal justice system applies the death penalty to white and black homicide offenders, respectively.  Whereas whites constituted only about 45% of homicide offenders over a period of roughly three decades, they constituted a far greater percentage, 57%, of those executed.  Blacks, on the other hand, constituted more than 52% of homicide offenders, but only about 34% of those executed.

                This consistent and straightforward data leads to but one conclusion:  Far from being discriminatorily applied against black homicide offenders, the death penalty in the U.S. has been consistently applied with far greater frequency against white homicide offenders.

                In the face of such overwhelming statistical evidence reported by the Obama Administration's own Justice Department, the fraudulence of the claim that capital punishment is discriminatorily imposed on blacks is plain for anyone to see.  Those who continue to perpetuate this canard in the face of such unambiguous data are engaged in the worst kind of racial exploitation, and should be exposed for the shameless agitators that they are.