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46 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWv. CONGRESS FAILS TO AnDRESS RACIAL DISCRIMINATIONIt is the poor, and the members of minority groups who are least able to voicetheir complaints against capital punishment. Their impotence leaves themvictims of a sanction that the wealthier, better-represented, just-as-guilty personcan escape. So long as the capital sanction is used only against the forlorn,easily forgotten members of society, legislators are content to maintainthe status quo, because change would draw attention to the problem and concernmight develop. Ignorance is perpetuated and apathy soon becomes itsmate, and we have today's situation.-Justice Thurgood Marsha1l 96Since the courts have not found a solution to confront racial discrimination incapital sentencing, Representative John Conyers (D-MI) has tried to come upwith one. In 1988, Rep. Conyers introduced the Fairness in Death SentencingAct (The Racial Justice Act). The Act provides criminal defendants facing thedeath penalty with an opportunity to show racial discrimination by evidence ofdiscriminatory impact through the use of statistics, instead of discriminatory motive,intent, or purpose by any person or institution. 97The Racial Justice Act is activated when a state has racially disproportionatepatterns in carrying out the death penalty. A disproportionate pattern occurs"when the death penalty is imposed: (1) more frequently upon persons of onerace; (2) or more frequently as punishment for crimes against persons of onerace.,,98 The defendant establishes a prima facie case through statistics that showa racially disproportionate pattern in the administration in capital sentencing.The government can rebut a prima facie case by "establishing by clear and convincingevidence that identifiable nondiscriminatory factors explain the racialdisparity. ,,99The Act requires states and federal entities that impose the death penalty to"collect and maintain pertinent data regarding the charging, disposition, and sentencingpatterns for all cases that are eligible for the death penalty."lOO Moreover,a state court can only determine on the merits that a factual issue pertinentto the claim is true when the state has collected and maintained the necessarydeath penalty data. In addition, the factual determination must be made in a96 DERRICK A. BELL, JR., RACE, RACISM, AND AMERICAN LAW 338 (3rd ed. 1992).97 Racial Justice Act of 1988, H.R. 4442, 100th Cong. (1988); See also Racial Justice Act of1993, H.R. 3329, 103rd Congo (1993).98 Id.99 Id.100 Id.
CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 47court proceeding where the defendant will be afforded the rights required underthe Act. lotThe Act can be effective because it establishes a checks and balances systemwithin capital punishment sentencing. The Act also gives African Americandeath row defendants a recourse to challenge racial discrimination, which theycurrently do not have.However, the Act has passed the House of Representatives twice, but hasfailed to pass in the Senate. Congress is aware of the racial disparities that plaguethe capital sentencing process, but has chosen to remain silent. In 1995, Congressasked the GAO to conduct a report on racial disparities in capital sentencing.The GAO found that "[t]he evidence for the race of victim influence was strongerfor the earlier stages of the judicial process (e.g., prosecutorial decision to chargethe defendant with a capital offense, decision to proceed to trial rather than pleabargain) than the later stages.,,102 Congress clearly knows that some form ofsafeguard is needed to ensure that African American death row defendants receivea fair trial. So, why did the Senate reject the Act? Congress does not wantto address the issue. It is as if they condone legal lynching.Kentucky is the only state that has passed legislation similar to the Racial JusticeACt. 103 On May 1,1998, Kentucky's Governor Patton signed the KentuckyRacial Justice Act into law. 104 This bill was introduced after studies revealed thegross racial disparity in Kentucky's capital sentencing process. lOSHopefully, the passage of Kentucky's Racial Justice Act will encourage otherstates to assess their capital sentencing processes and enact "Racial Justice Acts"as well. Moreover, this passage will motivate and encourage Congress to finallyface the peril of racial discrimination and pass the Racial Justice Act, whichwould give African American defendants a chance to challenge racialdiscrimination.VI. REMEDIESIt is imperative that death row inmates have some sort of recourse where theycan challenge racial discrimination. The Fairness in Death Sentencing Act is aneffective tool that confronts racial discrimination. However, it has not passed theSenate. I still encourage some form of legislation on the state and federal levelsthat will regulate the capital sentencing process. If Congress passes legislationrequiring that death row defendants have a way to challenge racial discrimination,the legislation would provide a means of checking the system to ensure that101 1d.102 Deiter, supra note 1, at 12.103 Kentucky Racial Justice Act, supra note 15.104 1d.105 1d.
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