Harris County Death Penalty: Race matters

Anyone who follows capital murder cases in Texas has observed that race plays a role in who gets the death penalty and who doesn't. It's long been accepted that a victim's race affects sentencing – those who kill white victims are more likely to get the death penalty. Now, according to a new study by University of Denver sociology professor Scott Phillips, the case histories also show that the defendant's race is also a significant factor – at least in Harris County.

Phillips found that a black murderer is almost twice as likely to have the death penalty sought against him as a white murderer. Phillips drew this conclusion not only based on the raw data of the race of the defendant and of the victim but through comparing the seriousness of the crimes. He writes that the prosecution "pursued death against black defendants and white defendants at the same rate despite the fact that black defendants committed less serious murders."

Phillips reviewed all the death sentences imposed in Harris County (Houston) over a period of eight years (1992-1999, while Johnny Holmes was still the district attorney) and first found – as studies all over the country have also shown – that the race of the victim of a homicide is a significant factor in whether the death penalty is sought by the prosecutor and whether it is imposed by the jury. Phillips' study, which will be published in the fall issue of the Houston Law Review, comes to the often-documented finding that "the race of the victim has a consistent and robust influence on capital punishment."

But it is his new findings about the race of the defendant that are most significant. After screening for seriousness of the offense, prior criminal history, and other factors, Phillips compared the rate for which prosecutors seek the death penalty for black defendants and white defendants. Comparing a hypothetical 100 potential capital murder cases trying a white defendant to 100 trying a black defendant, Phillips concluded, "the DA would pursue death against 23 black defendants and jurors would impose death in 74 percent of the cases, so 17 black defendants would be condemned; the DA would pursue death against 15 white defendants and jurors would impose death in 80 percent of the cases, so 12 white defendants would be condemned."

"The probabilities," he continued, "translate abstract numbers into human lives: Five [out of 100] black defendants would be sentenced to the ultimate state sanction because of race."

Another noteworthy finding focused on the role of the jury. David Dow, a professor at the University of Houston Law Center and the director of the Texas Innocence Network, noted "a kernel of good news, which is that ... juries, to a small extent, ameliorated the racist charging decisions by not sentencing all the blacks who committed the less heinous murders to death." Dow continued, "In other words, Harris County juries actually reduced – though certainly did not eliminate – the racist practices of the DA's Office. So while the study sheds a very unsavory light on the district attorneys who made the decisions, it shows juries rather favorably."

Phillips notes that "most people think juries are the quintessential actors in criminal justice. But it's not exactly true. The DA chose to seek death in just 129 of the 504 eligible cases, and the jury returned a death sentence in 98 of the 129. Once the DA decides who to seek death against, the die is cast. I speculate that the juries partially reverse the racial disparities because the DA has overreached in some cases. But the key point is that the juries do not fully reverse. The DA is the quintessential actor."

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See the Phillips study on The New York Times website: graphics8.nytimes.com/packages/pdf/national/20080429_sidebar_study.pdf.