European Stars And Stripes (Newspaper) - May 4, 1987, Darmstadt, Hesse                                Page 10 the stars and stripes columns Carl t. Rowan monday May 4,1987 judicial flaw1 now an american Way of life what Are your chances of going to the electric chair or the Gas chamber if you murder someone de pending on what you Are and whom you kill the Odds go something like this you arc White and you kill a Black person chances of your be ing executed Are be Wren slim and none. You arc Black and you kill a Black person chances arc Good that you la gel a judge who views Black on Black crime As a sort of intramural sport so you Aren t Likely 1o be sentenced to death. You arc while and you murder a while in some Stales you Are four  As Likely to get the death penalty As is a Black who merely murder another Black. You Are Black and you murder a while person you arc in rec times As Likely to be electrocuted or gassed Loreath As the White person who killed someone while. I doubt there is a single Mem Ber of the supreme court or any fed Erni re a any crime heal reporter or newspaper editor who has l known Cor years about this racial blight Upo America s criminal Justice system. They just accepted it As an inescapable i talc flaw m our system of crime and punishment. Well that flaw has just become the american Way of life thanks to the five members of the . Supreme court who on wednesday rejected claims thai Georgia s capital punish ment system must be struck Down a unconstitutional because in is blatantly racially discriminatory. In whal May be the judicial under statement of the year Justice Lewis f. Powell jr., wrote for the majority apparent disparities in sentencing Are an inevitable part of our criminal Justice  in effect the majority refused to give weight to statistical evidence that millions of americans do not get equal Protection under the jaws relating to capital punishment. Powell and those who joined him focused on the Issue of death Row whether it could be proved that racial prejudice motivated the specific jury that sentenced to death a Black Man. Warren Mcclesky who was convicted in 1978 of killing a White Atlanta police Man during n robbery. In his dissent Justice William j. Bran Nan or. Said the majority was guilty of Complete abdication of our judicial  in an Independent dissent just ice John Paul Stevens raised the probability that if Mccluskey had killed a Black per son he would not have been sentenced to death. This sort of disparity is Constitution ally intolerable said Stevens. It Fla Grantly violates he court s prior insistence that capital punishment reimposed fairly or not at  i shudder to see the court dismiss death dealing bigotry As a sort of Aberra lion a tolerable disparity within the criminal Justice system. But i am no surprised. I never expected this court to strike Down capital punishment Laws be cause they victimize men More than women he poor More than t Blacks More than Whites. I remain hopeful that even within Rny lifetime these Laws will be overturned by majorities of americans who come to understand that state sanctioned killings Are not deterrents to More murders that they often bring death to innocent peo ple that exec unions arc demeaning to All of society in that they make blood Curtly revenge an idol for the brutal to worship and Are in the noblest meaning of the Constitution cruel and unusual punish  the Day will come. Ice North Amer a edit Vicale James j. Kilpatrick remember Mccleskey killed in cold blood yes the figures Are disturbing. Three schol ars led by professor David c. Bald Softic University of Iowa Analysed More than 2.000 cases of murder committed in Georgia in the 1970s. They found among other things that defendants charged with kill ing while victims were 4.3 times As Likely to receive a death sentence As defendants charged with killing Blacks. It gives one pause. But the . Supreme court last week looked at the data and said in effect so whal assuming he Validity of the statistics whal was their probative value in the particular Case of Warren Mccleskey Mccluskey. A Black Man had murdered a White police officer during the armed robbery of an Atlanta furniture store. The Appeal raised no question of Mccluskey s guilt. He had Shol the officer in the face with a .38 revolver. Neither were there any technical questions about the trial no questions about the admissibility of Evi Dence the competence of counsel the qualifications of jurors or the instructions Given by he judge. After the jury had found Mccluskey guilty the court held a san aral hearing to Sci Ermine the penalty. Under Georgia Law Hie killing of a peace officer is an aggravating  the jury decreed that Mccleskey should be put to death for his crime. At this Point the Euldus study appeared. The schol ars had examined every murder Case in Georgia in the in tells in terms of 230 variable factors. Out of this mass of data Lenain correlations emerged. The raw numbers demonstrated that Black defendant such As Mccluskey who kill White victims statistically have tin greatest likelihood of receiving the death Penally. Mccleskey contended that he thus faced a risk of discrimination so palpable Aslo violate the Constitution s prohibition of cruel and unusual punishment hear Gued in addition that Blacks so situated Are denied equal Protection of the Law. Justice Lewis Powell writing for the majority correctly assessed the Legalsi i a Linn. In some areas of the Law statistical analyses have their place. If the ques Tion involves racial discrimination in Public schools or in a work place for example statistical data Are indispensable. In times past defendants have relied upon evidence of the systematic exclusion of Blacks from juries to win be trials. The Mccleskey Case presumed no such Vij on diary problems. Guilt is personal not statistical. Mccluskey had murdered an officer of the Law. In such cases he supreme court specifically has upheld the Power of a jury to fix a sentence of death. And As Power observed he sentence Irti Posl d upon Mccles key was not disproportionate to the sentences imposed in i j other cases in Georgia involving generally similar murders. Mccleskey s Nice provided no Factor of risk  to up Sci the sentence. Taken 10 its logical conclusion. Powell said Eccles key s claim throws into serious question the principles Ilia underlie our entire criminal Justice  the eighth amendment prohibiting cruel and unusual punishment is not limited to capital caws. In applies crass the Board. Similar statistical claims could be advanced on behalf of other defendants in other cases. Through a process of regression analysis disparities Diu Hiles could be shown in the sentencing of women chinese filipinos japanese koreans vietnamese hispanics and american indians. Correlations could be demonstrated Between defendants and particular defense a Orneys or judges. In such an Effort to establish a violation of due process inc Basic Issue of Guill or innocence would drown in a sea of statistics. Powell made one More Point Mccluskey s arguments Are Best presented to legislative  itis neither the right nor the responsibility of he High court to determine appropriate punishments for partic ular crimes. More than two thirds of the states have made capital punishment permissible for certain crimes. Such punishments subject 10 certain Safe guards and limitations clearly Are constitutional. Beyond determining on a Casc by Casi basis whether these a on irions have been met App Ellale courts have no  Power to intervene. Justice William Brennan Spuke for the four dissenters in an emotional review of racial discrimination in Georgia in the past. Trouble was whenever could Esi Abish the relevance of this history to the Case Ai bar. Warren Mccluskey killed a cop in cold blood. My Liberal friends before they leap on Lewis Rosvill. Should keep thai fact in mind cd  pith synd a inti Inq up " a fifth a in id  jut canons on ifs3 pan a Tio Al of Hal flu Lio 5 Ana Fern in no if to l u  j 5 Imp him Vitis us to suis Anc sinus 01 he unit Yin Siama Govorun Wal