Friday, July 20, 2012

RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS

RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
Dudley Sharp

My comments entered as "Sharp:".

Sharp: The census estimates for 2012 are: 63% white, 16.9% Hispanic and 13% black. Which presents about a 5:1 ratio of white to black by population, similar to ratios for quite sometime.  source: http://quickfacts.census.gov/qfd/states/00000.html

1)  Blume, John H.; Eisenberg, Theodore; and Wells, Martin T., "Explaining Death Row's Population and Racial Composition" (2004), Cornell Law Faculty Publicationshttp://scholarship.law.cornell.edu/facpub/231

" . . . based on the number of murders, African Americans are sentenced to death at lower rates than whites."

" . . . African Americans commit more than 50 percent of the country's murders yet they comprise 40 percent of death row. Furthermore, the excess of the African-American percentage of murderers over the African-American percentage of death row is greatest where the conventional wisdom would least expect it - in the South."

"How can African-American underrepresentation on death row be reconciled with the well-documented racial effects in capital cases? One racial effect, disproportionate presence of minorities on death row, is an artifact of using the general population, rather than the murderer population, as the basis for comparison. If the focus is on the operation of the capital punishment system, the population of murderers is an arguably more appropriate starting point."

Sharp: It is the only starting point. Any claim of racism based upon a correlation of racial/ethnic population counts to death row population is a common and intended deception by death penalty opponents. Population of murderers, more correctly, capital murderers, is the only relevant count. 

"The white defendant-black victim category is too small a portion of murders to materially influence the size of death row."  SEE  8) "Black on white" crime vs "white on black" crime, below.

"If, however, black defendant-white victim murders increase black representation on death row, and the bottom line is underrepresentation of blacks on death row, some race of defendant-race of victim combination must decrease it. The strongest candidate is the black defendant-black victim combination due to the evidence of prosecutorial reluctance to seek death in "black on black" cases."

Sharp: Blume, et al, simply missed the data, here. Any death row population "imbalance" is based upon the fact that black on black murders are less likely to be a capital murder than are black on white murders. That is the explanation. It is not prosecutorial reluctance, but legal application.

"Texas sentences murderers to death at a rate below the national mean."

2) "Death Penalty Sentencing: No Systemic Bias"

"After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ".

" . . . legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls."

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing."

"There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty." 


"As blacks represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their black counterparts."



3) "The Death Penalty and Racism The Times Have Changed", Washington Post reporter Charles Lane, The American Interest, Nov/Dec 2010, 
http://www.the-american-interest.com/article.cfm?piece=901


"It would be naïve to suggest that racism has been eliminated in the United States; but it would be equally mistaken to suggest that nothing has changed. To the extent that death penalty foes do the latter, they are misinterpreting the data and misleading public opinion."


4) SMOKE AND MIRRORS ON RACE AND THE DEATH PENALTY
BY KENT SCHEIDEGGER
http://www.cjlf.org/deathpenalty/DPenaltyRace.pdf

"After adjusting for relevant case characteristics, so as to compare apples to apples, there is no difference between the death sentence rates of black and white offenders, beyond the inevitable level of statistical “noise” inherent in such studies. “In sum, we have found no evidence that the race of the defendant matters in the processing of capital cases in the state."


5) RACE, SENTENCING & THE DEATH PENALTY
http://prodeathpenalty.com/DP.html#C.Race


Race of the victim

Could it be that whites are, overwhelmingly, the victims in death row cases because whites are, overwhelmingly, the victims in capital crimes? 

What is the ratio of white to black victims under the relevant, but non-homicide circumstances, which, when combined with homicide, become capital crimes? 

(A) The most relevant economic violent crime is robbery with injury, which shows a 4:1 ratio of white victims to black victims (C.5); 

(B) By a 5:1 ratio, whites are more likely to be victims of rape/sexual assault than are blacks (BJS, 1977-1984); 

( C ) For all property crimes (theft, burglary, auto theft), there is a 7:1 ratio of white to black victims ("Sourcebook, 1994," BJS 1995, tables 3.21,3.25); 

(D) A comparison of only black and white perpetrators and victims reveal that whites are five times more likely to be the victims of violent crime than are blacks, or 7.5 v 1.5 million, a 5:1 ratio ("Criminal Victimization, 1993" BJS 1995); 

and, for homicides, which by themselves, qualify for the death penalty: 

(E) In death penalty states, police victim murders are capital crimes. From 1985-1994, 87% of murdered officers were white, 12% black, or 7:1 (Law Enforcement Officers Killed and Assaulted, FBI:UCR, 1994); 

(F) Whites make up a dominant percentage of multiple/serial murderers, whose victims are overwhelmingly white, thereby disproportionately and correctly raising the number of  white victims in execution cases. In such death row cases, 87% of the victims are white, 13% black, or 7:1 (NAACP LDF data, 1996); 

(G) Many death row cases involve stranger/victim murders. There is a 7:1 ratio of white to black strangers (US Census, avg. 1970-80-90); and 

(H) Research and appellate courts (through McCleskey) have confirmed that white victim murders are the most aggravated, thus, by statute, enhancing the likelihood of a death sentence in those cases (C. 1-5 & 9-12). These factors, and others within this section, are consistent with the 6:1 ratio of white to black victims in capital cases.
 
But, wait, don’t blacks and whites represent about an equal number of murder victims? Yes, but, make no mistake, murder victims and capital murder victims are two very distinct groups. And only capital murders are relevant to death penalty cases. 


Capital crimes are very unique, combining murder with specific circumstance, such as subsets A-H. IF homicide rates are statistically consistent within subsets A-D, as McCleskey and additional studies indicate (C. 1-5 & 9-12), then it is subsets A-H, with additional required factors such as the murderer’s criminal history, capital procedures (see F), capital statutes, crime statistics, aggravating factors and other specific facts of the case (hereinafter McCleskey et al), which result in the distribution of victims in these cases.  

(I) Why are black on white murders more numerous on death row than white on black murders?

With the crimes of  robbery with injury, blacks are 21 times more likely to be involved in such crimes as are whites. This 21:1 ratio represents 1.4 million black offender(s)/white victim vs. 68,000 white offender(s)/black victim for robbery with injury crimes (Sharp, using BJS, 1977-84 data).

Likely, this also represents the same ratio that will exist with robbery/murders, the most common capital murders, those eligible for the death penalty. The more severe injuries will result in death, regardless of racial characteristics of offenders or victims.This is a huge data base, likely to be more accurate and representative. 


"The white defendant-black victim category is too small a portion of murders to materially influence the size of death row." from section 1, above.

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HOW VILE ARE ANTI DEATH PENALTY ACTIVISTS?

"The most vile strategy of death penalty opponents is their use of propaganda to nurture hatreds and mistrust between race and class."

"Bryan Stevenson, a well known opposition spokesman and attorney with Equal Justice Initiative, claims that the death penalty reflects the middle class’ desire to strike out at the poor and racial minorities. Sister Helen Prejean (Dead Man Walking) joins this hideous chorus, proclaiming that "(m)iddle-class and upper middle-class white people...are so much for the death penalty (to) ‘Keep those dangerous people (the poor and minorities) in their place.’ "

Sharp: Simply foul claims with nothing to back them up. Folks support the death penalty for the same reasons they support all sanctions - justice, a sanction commensurate with the harm of the crime. Gallup polling showed 81% support for the execution of mass murderer Timothy McVeigh, the Oklahoma City bomber. Support was consistent through all racial and economic groups.


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6) McCleskey v Kemp, the infamous race based death penalty case decided by the US Supreme Court (SCOTUS)

Sharp:  The US Supreme Court misunderstood the math involved. They ignorantly wrote: "defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

Totally inaccurate. It was by odds of 4.3 times, or an odds multiplier of 4.3, which can mean  a difference as low as 2-4%, as opposed to the 330% difference represented by 4.3 times. SCOTUS blew it big time on this.

Furthermore, the database, which, allegedly supported McCleskey's charge of racism, did no such thing and was, completely, unreliable.

"The best models which (David) Baldus was able to devise (within McCleskey v Georgia (Kemp)) which account toany significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the prosecutor’s or the jury’s] decisions in the State of Georgia." (1)

"After a thorough review, Judge Forrester concluded that “the (Baldus) data base has substantial flaws and . . . petitioner has failed to establish by a preponderance of the evidence that it is essentially trustworthy." (1)

" ... Baldus et al. failed to prove (and the State’s experts succeeded in rebutting) the basic claims made in the Baldus study.45 They did not just fail; they failed dismally. The Baldus study lay in shreds when Judge Forrester got through with it." (1)

 "The Court of Appeals for the Eleventh Circuit, sitting en banc, commended the district court “for its outstanding endeavor” in analyzing the validity of the Baldus study, and there is little doubt that a review of the factual finding that the study was invalid would have been affirmed under the applicable “clearly erroneous” standard." (1)

Read Federal District Court Judge Forrester's full rejection of Baldus' database for McCleskey.

A even more thorough review is provided by Joseph Katz, who did the methodological review of the Baldus database, which was rife with errors and problems. I have it, if you care to research.

Based upon experience, most, if not all law schools, wrongly confirm the Baldus database.

 These two articles, below, give a good explanation of some core problem with David Baldus, in the McCleskey case and another of his reviews.

I am unaware of Baldus making any efforts to correct these many misconceptions, over the many years that he should have. Despicable. I debated Baldus on these issues. 


A) "The Math Behind Race, Crime and Sentencing Statistics" 
By John Allen Paulos, Los Angeles Times, July 12, 1998 
http://articles.latimes.com/1998/jul/12/opinion/op-2965



B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994




7) Race, ethnicity and crime statistics.

For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault.

For the Hispanic- White comparison, the Hispanic level is 4.0 times greater than the White level for homicide, 3.8 times greater for robbery, 2.8 times greater for rape, and 2.3 times greater for aggravated assault.

For the Hispanic–Black comparison, the Black level is 3.1 times greater than the Hispanic level for homicide, 4.1 times greater for robbery, 2.4 times greater for rape, and 1.9 times greater for aggravated assault.

Sharp: As the most common capital murders, those which are death penalty eligible, are rape/murders and robbery/murders, the perceived "disparities" will most likely be even greater than the numbers, above.

"Recent studies suggest a decline in the relative Black effect on violent crime in recent decades and interpret this decline as resulting from greater upward mobility among African Americans during the past several decades."

"However, other assessments of racial stratification in American society suggest at least as much durability as change in Black social mobility since the 1980s."

When correcting for the Hispanic effect:

"Results suggest that little overall change has occurred in the Black share of violent offending in both UCR and NCVS estimates during the last 30 years."

 From

REASSESSING TRENDS IN BLACK VIOLENT CRIME, 1980.2008: SORTING OUT THE "HISPANIC EFFECT" IN UNIFORM CRIME REPORTS ARRESTS, NATIONAL CRIME VICTIMIZATION SURVEY OFFENDER ESTIMATES, AND U.S. PRISONER COUNTS, DARRELL STEFFENSMEIER, BEN FELDMEYER, CASEY T. HARRIS, JEFFERY T. ULMER, Criminology, Volume 49, Issue 1, Article first published online: 24 FEB 2011
http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9125.2010.00222.x/pdf


8) "Black on white" crime vs "white on black" crime, gathered from a Google search, for the previous 12 months, from 8/30/13:


 a) Blacks are 39 times more likely to commit a violent crime against whites then vice versa, and 136 times more likely to commit a robbery.
http://www.examiner.com/article/federal-statistics-of-black-on-white-violence-with-links-and-mathematical-extrapolation-formulas

b) Blacks who commit homicide do so at a rate about 7.5 times larger than whites who commit homicide. The trend in black homicide correlates well with the change in overall homicide. This disparity also exists for other crimes: blacks commit them at about 7-10 times the rates of whites.

There are many different graphs of crime comparisons at this site.

Black And White Homicide Rates: Who’s Killing Whom?     http://wmbriggs.com/blog/?p=7168

c) In New York from January to June 2008, 83 percent of all gun assailants were black, according to witnesses and victims, though blacks were only 24 percent of the population. Blacks and Hispanics together accounted for 98 percent of all gun assailants. Forty-nine of every 50 muggings and murders in the Big Apple were the work of black or Hispanic criminals.

New York Police Commissioner Ray Kelly confirms Mac Donald’s facts. Blacks and Hispanics commit 96 percent of all crimes in the city, he says, but only 85 percent of the stop-and-frisks are of blacks and Hispanics.    http://www.humanevents.com/2013/07/19/black-americas-real-problem-isnt-white-racism/

d) The bottom line: While a white person is far more likely to be victimized by a black than the other way around (21% vs. 7%), the chances are three times as great that a white person will be victimized by another white than by a black.

The exception here is robbery. Whites are held up by blacks 49% of the time and by whites only 37%. Still, though violent crime is predominantly white on white or black on black, it is also true that black criminals commit more crimes against white victims (nearly 1.1 million in 1992) than they do against blacks (just under 1 million).

THE FACTS: Blacks, who represent just 12.5% of the U.S. population, account for a disproportionate share of violent crime. Still, the fact remains that whites commit more such crimes -- 54% vs. 45% for blacks, (even though blacks are 12.5% of the population) according to FBI arrest statistics. The numbers also vary widely depending on the crime, with blacks responsible for more murders and robberies (55% and 61% of these crimes, respectively) and whites committing more rapes and aggravated assaults (56% and 60%).     http://www.godlikeproductions.com/forum1/message2092547/pg1

From previous research

With the crimes of  robbery with injury, blacks are 21 times more likely to be involved in such crimes as are whites. This 21:1 ratio represents 1.4 million black offender(s)/white victim vs. 68,000 white offender(s)/black victim for robbery with injury crimes (Sharp, using BJS, 1977-84 data).

Likely, this also represents the same ratio that will exist with robbery/murders, the most common capital murders, those eligible for the death penalty. The more severe injuries will result in death, regardless of racial characteristics of offenders or victims.This is a huge data base, likely to be more accurate and representative. 


"The white defendant-black victim category is too small a portion of murders to materially influence the size of death row." From section 1, at top.

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(1)  Rebutting the Myths About Race and the Death Penalty, Kent Scheidegger, 10 Ohio St. J. Crim. L. 147 (2012).