Divided about death

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'Unconscious racism'

For years, critics have charged that race plays an improper role in decisions about which murders become capital cases.

The newspaper's study did not find a bias against black offenders, but did show that prosecutors often obtained tougher sentences for armed-robbery murders when the victim was white.

After prosecutors sought death, 33 defendants were sent to prison for life without parole for killing a white victim in an armed robbery; just two killers of blacks were. Statewide, 226 white victims and 193 black victims were murdered during single-victim armed robberies.

A white victim boosted a killer's chances of facing capital prosecution more in South Georgia than elsewhere, Paternoster's analysis shows.

(ENLARGE)

In the southeast, one reason was an aggressive approach toward robberies of convenience stores and other businesses. Prosecutors sought death for 15 of 25 such murders; all but one of the clerks killed in that region were white.

In contrast, black armed-robbery victims there more often knew their killer and died at home or on the street — rather than in a business, a review of cases shows.

In southwest Georgia, nearly two-thirds of the armed-robbery victims were black or another minority. But nine of the 10 murders prosecuted as death penalty cases there involved white victims.

Stephen Bright, a defense attorney with the Southern Center for Human Rights in Atlanta, said an "unconscious racism" still operates when white prosecutors make decisions in communities where blacks and whites live separately.

"When someone from the prosecutors' community is killed, someone of his church, someone he did business with, he realizes that loss," Bright said. "That's more likely to be a death case than if he gets the police report on an African-American that he doesn't know as well."

Malone, now executive director of the state's Prosecuting Attorneys' Council, said race plays a role in everything and elected officials need to be careful. "Certainly it bothers me that there is a perceived inequity," he said. "But there's so many factors to this, it's hard to make this question that simple."

In the Domino's killing in Augusta, McClain went to death row for killing a white man. Scott, in Albany, got life for murdering a black man. Hodges and Craig, the district attorneys, said race played no role in their decision.

"Quite frankly, to suggest otherwise is offensive," Hodges said.

Paternoster, the criminologist, said the findings do not necessarily document racism — overt or otherwise — and could reflect historical differences. White victims' families, for instance, may demand death more often.

Regardless, he said, the racial disparity in sentencing "is still something that's intolerable."

Reserve for 'extremes'

Armed-robbery murders such as the Domino's killings often fall into a class of crimes that death-penalty researchers term "mid-range." The cases fall between the least horrific, for which prosecutors rarely seek death, and the most, for which they seek death the majority of the time.

The outcomes in mid-range cases figured prominently in McCleskey v. Kemp, a Georgia murder case that became the basis of a landmark 1987 U.S. Supreme Court ruling.

McCleskey murdered a white police officer. In a study for his defense, law professor David Baldus and statistician George Woodworth found that killers of whites were significantly more likely to get the death penalty. The effect was most pronounced in the mid-range cases.

The reason, Baldus suspected, was that the middle cases were closer calls, so inappropriate factors such as race were more likely to hold sway.

The court ruled a broader pattern of discrimination did not prove bias in McCleskey's case. But Justice John Paul Stevens, in his dissent, noted that Georgia could all but eradicate racial bias in death sentences by limiting the penalty to certain categories of "extremely serious" crimes.

Robert Blecker, a New York Law School professor who supports the death penalty, has advocated dropping armed-robbery murder from death penalty laws for nearly 20 years. Making all armed-robbery murders eligible for death misses key distinctions among them, he said.

A robber who shoots a clerk who pulls a gun, for instance, is not as deserving of death as one who shoots an unarmed clerk to kill a witness.

In recent years, Illinois, New Jersey and Nebraska have all discussed substantially narrowing death-penalty laws. None has done so.

Henry County District Attorney Tommy Floyd said having all armed-robbery murders eligible for a death sentence gives prosecutors more leeway to target horrific cases.

Variation is unavoidable, Floyd said. "You cannot have a perfect system, as much as we might want to," he said.

Kelley, the Brunswick prosecutor, said Georgia should allow prosecutors to seek life without parole without formally seeking the death penalty. That is often the most appropriate sentence, he said, but it's only an option if a prosecutor seeks the death penalty or the defendant was previously convicted of a serious violent felony.

Since late 1998, Georgia juries have agreed to death just once for armed-robbery murder, though prosecutors sought it in sentencing trials at least nine times.

By comparison, jurors in the same period agreed to death for about half of the killings that involved torture or maiming of victims.

Blecker said juries are sending a message. "This should be reserved only for people like serial rapist murderers whose cruelty is the essence of evil," he said. "It should be reserved for the extremes."

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