ISSUES OF FAIRNESS: RACIAL BIAS AND QUALITY OF LEGAL REPRESENTATION

Capital punishment opponents frequently raise issues about the fairness with which the death penalty is applied in the United States. These challenges avoid emotionally charged arguments about the moral rightness or wrongness of capital punishment to focus on more legally definable issues, such as discrimination and the denial of legal rights. An enduring idea of U.S. jurisprudence (the philosophy of law) is that ''justice is blind.'' In other words the merits of a criminal case should be decided without regard to the race, ethnicity, or economic status of the accused. Death penalty opponents argue that death sentences are unfairly administered because of racial bias, political motivations, and—in the case of poor defendants—poor legal representation. These factors, they say, prove that the U.S. capital punishment system is flawed and should be eliminated. Death penalty advocates counter that the judicial process contains adequate safeguards to ensure that defendants receive fair trials. They believe that if any discrepancies do exist in capital convictions and sentences, they should be remedied by applying the death penalty more often, not less often.

RACIAL BIAS IN THE DEATH PENALTY?

One of the most contentious issues within the death penalty debate is race. Capital punishment opponents argue that racial bias on the behalf of prosecutors, judges, and juries results in disproportionately high numbers of convictions and death penalties for African-American defendants. Figure 7.1 shows the racial makeup of all prisoners under the sentence of death and those executed between 1977 and 2005. Nearly half (48%) of death row inmates were white, whereas 41% were African-American. Among people executed, 58% were white and 34% were African-American. According to U.S. Census data, African-Americans comprised 11% to 13% of the nation's population over this time period. Thus, the percentages of African-Americans comprising all death row and executed inmates far exceeded their relative presence in the U.S. population as a whole.

Race and Homicide Statistics

According to James Alan Fox and Marianne W. Zawitz of the Bureau of Justice Statistics, in Homicide Trends in the United States (July 11, 2007, http://www.ojp.usdoj.gov/bjs/pub/pdf/htius.pdf), African-Americans are disproportionately represented among homicide offenders and victims. Figure 7.2 shows the U.S. homicide rate per one hundred thousand population between 1976 and 2005 for African-American and white murderers. Fox and Zawitz note that more than half of the offenders (52.2%) were African-American, whereas 45.8% were white. Furthermore, they report that in 2005 the offending rate for African-Americans (36.9) was more than seven times higher than the rate for whites (4.8). Statistics also show that African-Americans make up a disproportionate percentage of homicide victims. (See Figure 7.3.) Of all homicide victims between 1976 and 2005, 46.9% were African-American. White victims comprised 50.9% of the total. In 2005 the homicide victimization rate for African-Americans (29.6) was six times higher than the rate for whites (4.7).

Fox and Zawitz indicate that the vast majority of homicides committed between 1976 and 2005 were intraracial: 86% of white victims were murdered by whites and 94% of African-American victims were murdered by African-Americans. Figure 7.4 graphically illustrates the percentage breakdown for homicides by the race of the murderer and the race of the victim. Cases of ''black on white'' and ''white on black'' homicide are relatively uncommon.

Table 7.1 provides details from Fox and Zawitz regarding the circumstances of homicides committed by different races between 1976 and 2005. The data indicate that white murderers were most often involved in work-place (70.5%), sex-related (54.7%), and gang-related (54.3%) killings. African-American murderers were more frequently associated with drug-related killings (65%), felony murders (59.3%), and homicides resulting from arguments (51.1%).

The Baldus Study

In 1986 lawyers appealing the case of Warren McCleskey, a convicted murderer, brought before the U.S. Supreme Court the Baldus study (by David C. Baldus, Charles A. Pulanski Jr., and George Woodworth. The study

actually consisted of two studies: ''Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience'' [Journal of Criminal Law and Criminology,vol. 74, no. 3, 1983] and ''Monitoring and Evaluating Contemporary Death Sentencing Systems: Lessons from Georgia'' [University of California Davis Law Review, vol. 18, no. 1375, 1985]), an analysis of two thousand cases in Georgia in the 1970s.

This study showed that African-American defendants who were convicted of killing whites were more likely to receive death sentences than white murderers or African-Americans who had killed African-Americans. The justices, in McCleskey v. Kemp (481 U.S. 279, 1987), rejected the study, declaring that ''apparent disparities in sentencing are an inevitable part of our criminal justice system'' and that there were enough safeguards built into the legal system to protect every defendant.

In ''Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Analysis with Recent Findings from Philadelphia'' (Cornell Law Review, vol. 83, 1998), David C. Baldus et al. find evidence of race-of-victim disparities in twenty-six out of twenty-nine death penalty states. The researchers note that the race of the victim was related to whether capital punishment was imposed. A defendant was more likely to receive the death penalty if the victim was white than if the victim was African-American.

The U.S. General Accounting Office Study

These studies were consistent with a February 1990 U.S. government study of capital punishment. The U.S. General Accounting Office (GAO; now the U.S. Government Accountability Office), in Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (http://archive.gao.gov/t2pbat11/140845.pdf), reviewed twenty-eight studies on race and the death penalty. The GAO reported that ''in 82% of the studies, the race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty.'' The GAO found that when the victim was white, the defendant, whether white or African-American, was more likely to get the death sentence.

GAO added that in the small number of horrendous murders, death sentences were more likely to be imposed, regardless of race. Nevertheless, when the offender killed a person while robbing him or when the murderer had a previous record, the race of the victim played a role. The GAO also explained that for crimes of passion, the convicted person (regardless of race) rarely received the death penalty.

Racial Justice Legislation

In 1998 Kentucky became the first state to enact a racial justice law (Racial Justice Act) that prohibited the execution of a convicted person when evidence shows racial discrimination in prosecution or sentencing. Other states that have considered similar legislation include Florida, Georgia, Indiana, Nebraska, New Mexico, North Carolina, Ohio, Oregon, and Texas. As of November 2007, however, no other state had passed such legislation.

First U.S. Department of Justice Study of Racial and Ethnic Bias

In July 2000 President Bill Clinton (1946–) ordered the U.S. Department of Justice to review the administration of the federal death penalty system. This order came in the aftermath of a request for clemency by Raul Juan Garza, who was granted a stay by President Clinton, but who was ultimately executed in June 2001. Garza's lawyer contended that it was unfair to execute his client because the federal death penalty discriminated against members of minorities.

In September 2000 the Justice Department released The Federal Death Penalty System: A Statistical Survey (1988–2000) (http://www.usdoj.gov/dag/pubdoc/dpsur_vey.html), which provided information on the federal death penalty since the passage of the first federal capital punishment law in 1988 (the Anti-Drug Abuse Act). From 1988 to 1994 prosecutors in the ninety-four federal districts were required to submit to the U.S. attorney general for review and approval only those cases that the attorney general deemed worthy for the death penalty. During this period the prosecutors sought the death penalty in fifty-two cases and received authorization from the attorney general in forty-seven cases.

In 1995 the Justice Department adopted a new protocol that required U.S. attorneys to submit for review all cases in which a defendant was charged with a crime subject to the death penalty, regardless of whether they intended to seek authorization to pursue the death penalty. These cases were first reviewed by the attorney general's Review Committee on Capital Cases, a committee of senior Justice Department lawyers.

The period 1995–2000, which provides a more extensive picture of the Justice Department's internal decision process as it pertains to the federal death penalty, showed that between January 27, 1995, and July 20, 2000, at every phase of the federal process, minority defendants were overrepresented. Of the 682 defendants whose cases were submitted for review by federal prosecutors, 47.5% were African-American, 28.6% were Hispanic, and 19.6% were white. (See Table 7.2.) The prosecutors recommended seeking the death penalty for 183 out of 682 cases submitted for review. Of these 183 cases, two-thirds (44.3% African-Americans and 21.3% Hispanics) were members of minorities. The attorney general reviewed 588 of the cases and authorized the U.S. attorneys to seek the death penalty in 159 cases. Of the 159 defendants, 44.7% were African-American and 20.1% were Hispanic. Only about 27.7% were white.

Racial Disparity in Plea Bargaining?

It should be noted that the attorney general's decision to seek the death penalty may be changed up until the jury has returned a sentencing verdict. This change may be sought by the defense lawyer, the U.S. attorney, the Review Committee, or by the attorney general. A plea agreement is one avenue that may result in the withdrawal of the death penalty. This means that the defendant enters into an agreement with the U.S. attorney resulting in a guilty plea, saving him or her from the death penalty. From 1995 to 2000, after the attorney general sought the death penalty for 159 defendants, 51 defendants entered into plea agreements. (See Table 7.2.) Almost twice as many white defendants (48%, or twenty-one out of forty-four) as African-Americans (25%, or eighteen out of seventy-one) received a plea agreement. About 28% (nine out of thirty-two) of Hispanics entered into a plea agreement.

GOVERNMENT DEFENDS DATA.

The National Institute of Justice (NIJ) observes in the solicitation Research into the Investigation and Prosecution of Homicide: Examining the Federal Death Penalty System (July 20, 2001, http://www.ncjrs.gov/pdffiles1/nij/sl000490.pdf) that, ''generally speaking, once submitted for review [to obtain a death penalty authorization], minorities proceeded to the next stages in the death penalty process at lower rates than whites.'' The NIJ claims that the attorney general authorized the death penalty for 38% (44 out of 115) of whites being considered, compared to 25% (71 out of 287) of African-American defendants and 20% (32 out of 160) of Hispanic defendants. (See Table 7.2.)

Second Justice Department Study of Racial and Ethnic Bias

On June 6, 2001, the Justice Department released a supplement to the September 2000 report— The Federal Death Penalty System: Supplementary Data, Analysis, and Revised Protocols for Capital Case Review (http://www.usdoj.gov/dag/pubdoc/deathpenaltystudy.htm). That same day U.S. attorney general John D. Ashcroft (1942–) told the Judiciary Committee of the U.S. House of Representatives that the report confirmed that the subsequent study of the administration of the federal death penalty showed no indication of racial or ethnic bias.

The follow-up study had been ordered by his predecessor, U.S. attorney general Janet Reno (1938–). Besides the 682 cases submitted by federal prosecutors for review in the first study of the federal death penalty, another 291 cases were analyzed, for a total of 973 cases. These included cases that should have been submitted for review for the first report but were not, those in which the defendant eventually entered into a plea agreement for a lesser sentence, and cases in which the death penalty could have been sought but was not. Among the 973 defendants, 408 (42%) were African-American, 350 (36%) were Hispanic, and 166 (17%) were white.

According to the supplement, from 1995 to 2000, of the 973 defendants eligible for capital charges, federal prosecutors requested authorization to pursue the death penalty against 81% of whites, 79% of African-Americans, and 56% of Hispanics. The attorney general ultimately authorized seeking the death penalty for 27% of the white defendants, 17% of the African-American defendants, and 9% of the Hispanic defendants.

Critics of the supplementary report pointed out that the second federal review failed to address many issues. Following the release of the September 2000 survey, Attorney General Reno ordered a study to find out how death penalty cases are taken into the federal system when there is joint state and federal jurisdiction. The June 2001 report did not cover this issue. Instead, the report described a January 10, 2001, NIJ meeting in which researchers and practitioners agreed that such a study ''would entail a highly complex, multi-year research initiative'' and that ''even if such a study were carried out, it could not be expected to yield definitive answers concerning the reasons for disparities in federal death penalty.''

Testifying before the Senate Judiciary Committee, David C. Baldus (June 11, 2001, http://www.deathpenal_tyinfo.org/article.php?did_1/4252 scid1/4) of the University of Iowa reported that he was one of the researchers at the January 2001 NIJ meeting. Baldus claimed that even though it was true he and others at the meeting agreed that the study ordered by Attorney General Reno would likely take two years to complete, the consensus was that ''such a study would provide the best possible evidence on the question.'' Baldus further pointed out that quite some time had elapsed since that meeting and the first report, and still the Justice Department had not taken any steps to initiate such a study.

On July 20, 2001, the NIJ published the above-mentioned solicitation for research of the federal death penalty, including the decision-making factors that determine whether a homicide case is prosecuted in the federal or state system, as well as issues of race/ethnicity and geography in the imposition of the death penalty. This allows researchers to apply for government grants to complete the requested research, but such research has yet to be undertaken.

In ''Analysis of June 6 Department of Justice Report on the Federal Death Penalty'' (June 14, 2001, http://www.aclu.org/capital/general/10574pub20010614.html), the American Civil Liberties Union (ACLU) notes that, unlike the September 2000 Justice Department report, the June 2001 report did not include information on whether the supplemental 291 cases were from all or just some districts and, therefore, whether or not they represented all the death penalty–eligible cases between 1995 and 2000. The ACLU also pointed out that even though the report found that federal prosecutors were less likely to submit cases of African-American and Hispanic defendants to the attorney general for death penalty authorizations and that the attorney general authorized capital punishment for a higher proportion of whites than African-Americans and Hispanics, there was no information about the decision-making process behind prosecuting on the federal level and of offering plea agreements.

A North Carolina Study

On April 16, 2001, Isaac Unah and John Charles Boger of the University of North Carolina released the most comprehensive study of North Carolina's death penalty system in the state's history: Race and the Death Penalty in North Carolina, an Empirical Analysis: 1993– 1997 (http://www.common-sense.org/pdfs/NCDeathPe_naltyReport2001.pdf). The researchers studied all 3,990 homicide cases between 1993 and 1997, including defendants who received death sentences, as well as those sentenced to life imprisonment.

On first analysis of all homicide cases, Unah and Boger found that, overall, the death-sentencing rate for white victims (3.7%) was almost twice as high as the rate where the victims were nonwhite (1.9%). In addition, the death-sentencing rate for nonwhite defendants/white victims (6.4%) was over two times higher than the rate for white defendants/white victims (2.6%).

When Unah and Boger confined their investigation to death-eligible cases (those imposing the death penalty, such as a case involving the murder of a police officer), race determined whether the defendant received the death sentence. The death-sentencing rate in all death-eligible cases was much higher in white-victim cases (8%) than in cases in which the victims were nonwhite (4.7%). As with all cases, nonwhite defendants in white-victim homicides received the death sentence at a higher rate (11.6%) than white defendants who murdered whites (6.1%).

After the initial analysis, Unah and Boger performed a more comprehensive investigation involving 502 defendants, collecting 113 factors about each crime. These factors included the circumstances of the homicide, the evidence, the charges brought against the defendant, the character and background of the defendant and the victim, the presence or absence of aggravating or mitigating circumstances as specified under the law, as well as the presence or absence of aggravating or mitigating circumstances not specified under the law. The researchers also looked into other factors that might have influenced the imposition of the death penalty, such as the coming reelection of the district attorney prosecuting the crime. Unah and Boger found that race—specifically the race of the victim—played a role in the imposition of capital punishment in North Carolina from 1993 to 1997. On average, the odds of receiving the death penalty were increased by a factor of 3.5 times when the victim was white.

A Maryland Study

In January 2003 Raymond Paternoster et al. released An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction (http://www.newsdesk.umd.edu/pdf/finalrep.pdf), a state-commissioned study of the use of the death penalty in the state. The researchers reviewed 1,311 death-eligible cases out of 6,000 murder cases prosecuted between 1978 and 1999. Of the 1,311 death-eligible cases, state attorneys filed a formal notice to seek the death penalty in 353 (27%) cases. Of the 353 cases, state attorneys dropped the death penalty notice in 140 (40%) cases. The death penalty notice was retained in 213 (60%) cases, out of which 180 (84.5%) cases proceeded to the penalty phase.

Paternoster et al. examined the four decision stages in the death penalty sentencing system: the prosecutor's decision to seek the death penalty, the prosecutor's decision to drop or stick with the death penalty notice, the case's proceeding to a penalty trial, and the court's decision to impose the death sentence. The researchers ''found no evidence that the race of the defendant matter[ed] in the processing of capital cases in the state.'' However, the race of the victim had an impact on whether the prosecutor sought the death penalty. Prosecutors were more likely to seek the death penalty for killers of white victims and were more likely to stick with their death penalty notification when the victims were white.

The study also revealed that jurisdictions affected whether state attorneys sought the death penalty. A defendant in Baltimore County was twenty-six times more likely to be sentenced to death than a defendant in Baltimore City. A defendant was fourteen times more likely to get the death penalty in Baltimore County than in Montgomery County and seven times more likely to get the death penalty in Prince George's County.

A California Study

Glenn Pierce and Michael Radelet, in ''The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–99'' (Santa Clara Law Review, vol. 46, no. 1, 2005), reviewed data from all homicides committed in California from 1990 through 1999 and compared those that did and did not result in a death sentence. To examine any potential racial biases in conviction and sentencing, they excluded cases in which killers had multiple victims of different races.

Pierce and Radelet found that convicted murderers with non-Hispanic white victims were 4.7 times more likely to receive a death sentence than those who killed Latinos and 3.7 times more likely to receive a death sentence than those who killed African-Americans.

A 2004 National Study

In ''Explaining Death Row's Population and Racial Composition'' (Journal of Empirical Legal Studies, vol. 1, no. 1, March 2004), John Blume, Theodore Eisenberg, and Martin T. Wells compared twenty-three years of death row statistics to state murder rates. They found that between 1977 and 1999 the number of death row inmates in most states, including those with a reputation for sending a high number of defendants to death row, was nearly proportional to the number of murders in that state.

Overall, the number of inmates on death row in each state was between 0.4% (Colorado) and 6% (Nevada) of murders in that state, and the mean (average) ''death sentencing rate'' among all states was 2.2%. Despite having the highest number of executions per year, Texas came in below this average with a death row to murder ratio of 2%. Even though Texas juries sentenced 776 people to death row, a total of 37,879 murders had been committed during the study period. Florida, which had a total death row population of 735 inmates, had experienced 121,837 murders and a death sentencing rate of 3.4%. By contrast, Nevada had 124 death row inmates, but only 2,072 murders, giving the state a death sentencing rate three times that of Texas. California, Virginia, Washington, New Mexico, and Maryland all had death sentencing rates below 1.5%.

To explain the slight discrepancy between states, Blume, Eisenberg, and Wells looked at the states' statutes, politics, and other factors that might influence sentencing rates. They found that death sentencing rates were nearly twice as high in states where a judge handed out the sentence as opposed to a jury (4.1% versus 2.1%). State statutes also made a big difference. States with more open-ended statutes that allowed a jury to base their verdicts on subjective standards, such as the heinousness of the murder, had sentencing rates of 2.7%. Sentencing rates dropped to 1.9% in states where specific murders, such as the murder of a pregnant woman or police officer, warranted the death sentence.

Blume, Eisenberg, and Wells then compared the race of the death row inmates to the number of murders committed by race across the country. Nationwide, African-Americans committed 51.5% of murders between 1977 and 1999, but they only made up 41.3% of death row. The researchers analyzed data from seven states— Georgia, Indiana, Maryland, Nevada, Pennsylvania, South Carolina, and Virginia—to determine why these percentages did not match.

Generally, what Blume, Eisenberg, and Wells found was that juries give the death sentence to a far smaller percentage of African-American murderers when the victim was also African-American, rather than white. In South Carolina, for instance, only 0.3% of African-Americans who killed African-Americans received the death penalty, whereas 6.8% of African-Americans who murdered whites were sentenced to death. Because 94% of African-American homicide victims were killed by African-Americans, the percentage of African-Americans on death row tended to be lower than the percentage of African-American murderers. Even though the researchers speculated that racism may figure into these percentages, they also believed that African-American juries in communities with a great deal of African-American-on-African-American crime were less likely to hand out the death sentence.

An Ohio Study

The Ohio Associated Press (AP) published an extensive study on the Ohio death penalty system on May 7, 2005. The news organization reviewed 2,543 reported cases in which prisoners were brought up on capital charges between 1981 and 2002. This number was narrowed to 1,936 after analysts weeded out charges that were dismissed or erroneously reported. Roughly 270 of the indictments led to a death sentence. The AP analyzed the indictments to find any discrepancies in sentencing involving race, sex, or jurisdiction. The results were presented by Andrew Welsh-Huggins in the three-part series ''Death Penalty Unequal'' (Cincinnati Enquirer, May 7–9, 2005).

With respect to race, those indicted (formally accused) of capital murder in Ohio were much more likely to receive the death sentence if the victim was white. Some 17.9% of indictments led to a death sentence if the victim was white, as opposed to 8.5% if the victim was African-American. However, unlike the Baldus study, these percentages were not dependent on the race of the defendant. In cases where the offender and victim were both white, 18.3% of offenders received the death sentence. Roughly the same number of African-American offenders (17.9%) were sentenced to death if the victim was white. If the victim was African-American, 8.4% of African-American offenders were sentenced to death, compared to 8.7% for white offenders.

Jurisdiction had a bigger impact than race on who received the death sentence in Ohio. The AP looked at indictments by county and compared the numbers with those aspects of each county that might influence death penalty verdicts. The news organization found that the politics of a county played a significant role in determining the percentage of defendants who received the death penalty. Hamilton County (Cincinnati metropolitan area) and Cuyahoga County (Cleveland metropolitan area) are both large counties that paid their defense attorneys reasonably well. Yet, only 8% of all capital cases ended with a death sentence in Democratic Cuyahoga County, as opposed to 43% in the largely Republican Hamilton County.

The Ohio report also found that compensation for lawyers who represent poor defendants varied drastically from county to county. The limits ranged from $3,000 maximum per death penalty case in rural Coshocton County (east-central Ohio) up to $75,000 in the more affluent Montgomery County (Dayton metropolitan area). Generally, death penalty cases place an enormous strain on the resources of a small county court as opposed to a large county court. Rural judges reported having to dedicate all their resources for months on end when capital cases came through their courts.

Other Claims of Racial Bias

Some people claim that district attorneys, who decide which cases to try as death penalty cases, may be motivated by politics or racial prejudice to impose the death penalty on minority defendants. Jeffrey Pokorak of St. Mary's University, in ''Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors'' (Cornell Law Review,vol.83, 1998), finds that 1,794 out of 1,838 prosecutors (97.5%) in the thirty-eight states with capital punishment were white. Only 1.2% were African-American or Hispanic.

Jennifer Eberhardt et al., in ''Looking Deathworthy. Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes'' (Psychological Science, vol. 17, no. 5, May 2006), note a possible link between racial stereotyping and imposition of the death penalty against African-American defendants. In the study, forty-four head shot photographs of male African-American defendants in Pennsylvania capital murder cases from 1979 to 1999 were shown to evaluators (undergraduate students) unaware of the defendants' history. All the defendants had been convicted of murdering white victims. The evaluators were mostly white; no African-Americans were included.

Each defendant was rated by the evaluators in terms of darkness of skin color and stereotypical features that might be associated with African-American people (such as large lips and broad noses). Eberhardt et al. conducted a statistical analysis of the results taking into account six nonracial factors: aggravating and mitigating circumstances presented at trial, the severity of the murder, the socioeconomic status of the defendant and victim, and the attractiveness of the defendant (as rated by the evaluators). They find that more than half of the defendants rated as having extremely stereotypical African-American facial features had been sentenced to death. Less than a quarter of the defendants that appeared more stereotypically white had been sentenced to death. This disparity did not appear when a similar study was conducted using photographs of African-American defendants who had murdered African-American victims. The authors conclude that ''defendants who were perceived to be more stereotypically Black were more likely to be sentenced to death only when their victims were White.''

Death Penalty Advocates Speak about the Race Issue

On February 1, 2006, the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights conducted the hearing ''An Examination of the Death Penalty in the United States.'' One of the scholars who testified was John McAdams (http://judiciary.sena_te.gov/testimony.cfm?id1/41745 wit_id1/44989) of Marquette University. McAdams noted that death penalty opponents often ''play the race card'' in debates over capital punishment. He argued that statistical studies do not support the notion that African-American murderers suffer racial bias in capital punishment cases. However, he acknowledged that studies do show ''a huge bias'' against African-American victims of homicide. He testified, ''This is clearly unjust, but it leaves open the question of whether the injustice should be remedied by executing nobody at all, or rather executing more offenders who have murdered black people.''

In Death Penalty and Sentencing Information in the United States (October 1, 1997, http://www.prodeathpenal_ty.com/DP.html), Dudley Sharp of Justice for All, a Texas-based organization that promotes reform of the justice system to better protect the rights of victims, disputes claims that racial discrimination plays a role in death sentencing. He complains that ''the most vile strategy of death penalty opponents is their use of propaganda to nurture hatreds and mistrust between race and class.'' Sharp notes that most murderers on death row at that time were white, not African-American. He cites data from various studies conducted by government and private entities that support the position that African-Americans are not overrepresented on death row or among the executed.

The Criminal Justice Legal Foundation (CJLF) is a California-based group that supports capital punishment. In March 2003 the CJLF collaborated with the California District Attorneys Association to publish Prosecutors' Perspective on California's Death Penalty (http://www.cdaa.org/WhitePapers/DPPaper.pdf). The report includes a section that attacks claims of racial bias in California's capital punishment system. The report notes that the racial makeup of the state's death row at the end of 2001 was 41.4% white, 34.6% African-American, 18.8% Hispanic, and 5.2% other races. However, the relatively large percentage of African-Americans among the condemned is attributed primarily to Los Angeles County gang activity: ''It is well known that Los Angeles County is 'home territory' to many Black street gangs, such as Crips, Bloods, and the like. And, by their very nature, gang-member activities and prior criminal records frequently bring gang-related homicides within California's capital-sentencing scheme.'' The report claims that California's death row racial composition changes dramatically if condemned inmates in Los Angeles County are removed from the dataset. This results in a death row comprised of 49.6% white, 28.8% African-American, 17.1% Hispanic, and 4.5% other.

Wesley Lowe (June 20, 2007, http://www.wesleylo_we.com/cp.html#race), another vocal death penalty advocate, maintains that the solution to any perceived problems with racial bias in death sentencing is to eliminate the opportunity for discrimination. He states, ''For capital punishment to be applied equally to every criminal, rich or poor, black or white, it must be mandatory for ALL capital cases.''

LEGAL REPRESENTATION: QUESTIONS ABOUT QUALITY

The Sixth Amendment to the U.S. Constitution guarantees the ''assistance of counsel for defense'' in federal criminal prosecution. In Gideon v. Wainwright (372 U.S. 335, 1963), the U.S. Supreme Court extended the right to counsel to state criminal prosecution of indigent (poor) people charged with felonies. In Argersinger v. Hamlin (407 U.S. 25, 1972), the high court held that poor people charged with any crime that carries a sentence of imprisonment have the right to counsel.

The Court later ruled in Strickland v. Washington (466 U.S. 688, 1984) that the lawyers provided for poor defendants must abide by certain professional standards in criminal cases. Some of these standards include demonstrating loyalty to the client, avoiding conflicts of interest, keeping the defendant informed of important developments in the trial, and conducting reasonable factual and legal investigations that may aid the client's case.

Ineffective Counsel?

Death penalty opponents claim that some lawyers who have defended capital cases were inexperienced, ill trained, or incompetent. They point to cases where the defense lawyers fell asleep during trial, drank to excess the night before, or even showed up in the courtroom intoxicated. They also cite the well-publicized cases of inmates exonerated as a result of college students finding evidence that defense lawyers had failed to uncover.

Several studies reveal that attorneys who took on capital murder cases involving poor defendants were often incompetent. In the five-part series ''The Failure of the Death Penalty in Illinois'' (Chicago Tribune, November 14–18, 1999), Ken Armstrong and Steve Mills examine all 285 death penalty cases since Illinois reinstated the death penalty in 1977. The journalists report that at least thirty-three defendants sentenced to death in Illinois had lawyers who were later suspended or disbarred, ''sanctions reserved for conduct so incompetent, unethical, or even criminal the lawyer's license [was] taken away.'' A similar three-part series by Lise Olsen, ''Uncertain Justice'' (Seattle Post-Intelligencer, August 6–8, 2001), reveals that one-fifth of the eighty-four people who faced possible execution in Washington state between 1981 and 2001 were represented by attorneys who had been disbarred, suspended, or arrested sometime before or after the murder trial. These lawyers were some of the worst in Washington state.

The American Bar Association (ABA), in '' Gideon 's Broken Promise: America's Continuing Quest for Equal Justice'' (December 2004, http://www.abanet.org/legalser_vices/sclaid/defender/brokenpromise/fullreport.pdf), provides some insight into why poor defendants received such inadequate counsel. The ABA analyzes the indigent defense system in twenty-two states and finds that lawyers who took on poor defendants received low pay and that judges tended to let legal protocols slide to clear overcrowded dockets. In noncapital cases involving lesser offenses, prosecutors and judges sometimes forced defendants to plead guilty before receiving counsel to move them through the system. In addition, the ABA notes that indi-gent defense systems lack the basic accountability and oversight needed to ensure decent legal representation or correct these problems.

States generally vary in fulfilling Gideon. Somestates have undertaken the establishment and funding of an indi-gent defense system; others have passed the responsibility on to individual counties. Across the United States different jurisdictions use one or a combination of three systems to provide counsel to poor defendants. The first system used by some jurisdictions has public defenders that are usually government employees. Under the second system, the court-assigned counsel system, a judge appoints private lawyers to represent the poor. A third system involves contract lawyers who bid for the job of providing indigent defense.

Court-assigned lawyers belong to a list of private lawyers who accept clients on a case-by-case basis. In jurisdictions that employ these lawyers, judges appoint lawyers from a list of private bar members and determine their pay. In most cases the pay is low. Beth A. Wilkinson (June 27, 2001, http://www.thejusticeproject.org/press/statements/testimony-of-beth-wilkinson.html), the co-chair of the Constitution Project's Death Penalty Initiative, testified before a U.S. Senate Judiciary Committee hearing that many jurisdictions pay their court-appointed lawyers low hourly rates for capital defense. For example, Alabama paid $20 to $40 an hour, with a limit of $2,000. This means that a lawyer spending six hundred hours preparing for a capital case earned $3.33 an hour. (The ACLU estimates in ''The Death Penalty'' [Briefing Paper, no. 14, 1999] that defending a capital case at the trial level takes about seven hundred to one thousand hours.) Wilkinson added that Tennessee paid $20 to $30 an hour and that Mississippi had a $1,000 limit. According to the ABA, in ''Gideon 's Broken Promise,'' salaried defense attorneys did not fare much better. For example, in Massachusetts salaries started at $35,000 for public defenders and were increased to $50,000 after ten years. Moreover, courts often refused to authorize the needed funds for investigating cases and using expert testimony. In contrast, the prosecution usually had unlimited funds at its disposal.

Some states have no statewide public defender system and have taken few steps to put one in place. Other states have taken strides since the late 1990s to improve their systems. When New York brought back capital punishment in 1995, the death penalty statute required the establishment of a capital defender office: the New York Capital Defender Office (2007, http://www.nycdo.org/caseload__041231_answers.pdf). This office participated in the defense of nearly two hundred defendants charged with capital crimes. In 2004 New York's death penalty was declared unconstitutional by the state's supreme court. In October 2007 the capital defender office announced plans to close down, after the state's last death row inmate was resentenced to life without parole.

In June 2001 Texas passed the Texas Fair Defense Act requiring state funding for indigent defense. The act required that counties adopt indigent defense systems meeting basic minimum standards specified in the statute (http://www.equaljusticecenter.org/new_page_2.htm).

To remedy some of the problems inherent in death penalty trials, Congress passed and President George W. Bush (1946–) signed the Innocence Protection Act of 2004. This act launched a program in which state governments receive grants from the federal government to improve the quality of legal representation for poor defendants in state capital cases. To receive such a grant, a state's capital defense system has to meet a number of requirements, which include establishing minimum standards for defense attorneys and monitoring the performance of these attorneys.

In 2005 Georgia legislation went into effect requiring defender offices within each judicial circuit to give representation in felony cases. That same year a defendant named Brian Nichols escaped from the Atlanta courthouse during his rape trial and allegedly killed four people before being recaptured. Jenny Jarvie reports in ''Georgia Public Defender System on Trial'' (Los Angeles Times, March 30, 2007) that the Georgia indi-gent defense program was in dire economic straits mostly because of the enormous cost of Nichols's defense, which totaled $1.4 million at that time and had not yet proceeded to trial. Nichols had offered to plead guilty in exchange for a life sentence, but this offer was rejected by the district attorney. According to Jarvie, Nichols's trial had to be postponed after the public defender system ran out of money. Bill Rankin notes in ''Public Defender Chief Quits, Says Courts Should Be 'Told the Truth''' (Atlanta Journal and Constitution, August 31, 2007) that Chris Adams, the head of the capital defender program, resigned in August 2007 after the program received a budget allotment of only $4.3 million for the next fiscal year, far less than the $10.5 million he had requested. Adams complained that the amount was not sufficient to allow the capital defender office to adequately represent clients facing a death sentence.

Counsel for Postconviction Review

Even though death row inmates have the right to seek review of their conviction and sentence, they do not have the right to counsel for postconviction proceedings per the Supreme Court ruling in Murray v. Giarratano (492 U.S. 1, 1989). Because most of those awaiting execution are poor, they must find lawyers willing to handle appeals for free. In 1995 Congress discontinued federal funding of private organizations (called resource centers) that represented death row inmates in postconviction proceedings. As a result, private organizations and law firms, both proponents and opponents of the death penalty, concerned with the increasing problems in capital cases, now volunteer their services. Some hold training seminars on the complex process of appellate review, whereas others provide research and investigation.

In ''In Pursuit of the Public Good: Lawyers Who Care'' (April 9, 2001, http://www.supremecourtus.gov/publicinfo/speeches/sp_04-09-01a.html), Justice Ruth Bader Ginsburg (1933–) of the Supreme Court expresses her concerns about proper representation in capital cases. She states, ''I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented at trial. . .. Public funding for the legal representation of poor people in the United States is hardly generous. In capital cases, state systems for affording representation to indigent defendants vary from adequate to meager.''

In July 2001 Justice Sandra Day O'Connor (1930–), a longtime supporter of the death penalty, expressed concern about capital punishment. In October 2001 she told the Nebraska Bar Association that unless qualified lawyers are willing to work for indigent defendants who cannot afford counsel, innocent people may be sentenced to death.