¶ … public to scholars, the death penalty has come under severe criticism in contemporary epoch. The debate between the supporters and criticizers of capital punishment has been going on for decades. Is death penalty constitutional? What are the factors that may render it unconstitutional? Is racial discrimination one of such factors? The paper uses a set of law review articles and highlights racial discrimination in death penalty in United States, discusses different theories with regard to the racial bias question and explores the debate of racial bias pervading the American judicial system to question the constitutional basis of death penalty.

A lot of research has been conducted on racial discrimination in courts. All this research can be classified in terms of a societal or an individual perspective. Gibson discusses these two approaches on racial discrimination. The first approach can be attributed to sociologists who believe that courts can not remain neutral. They are 'systematically biased' in a manner that they "allocate values and manage conflict." Just like any other economic or political institution, courts are merely treated as resources and tools by the powerful segments present in the society to advance their own vested interests. This happens because the society we live in is heterogeneous; power is distributed unequally among the classes. Hence, courts become a tool for these powerful groups. Then there is always this ever present and ever ominous notion of "majoritarian tyranny" which is manifested in the white supremacy culture.

Here discrimination is treated as flowing from the institution itself. This is known as "institutional racism." Institutional racism occurs when the working and procedures of an institution are impersonal but the decisions or the outcomes flowing out from it are biased as has been the case with the American judicial system (Gibson, 1978, p. 456). Gibson cites a few problems with this particular approach. Firstly, this approach assumes "little intra-institutional variation in decision making process" (Gibson, 1978, p. 456). This means that decisions going through the same process will end up with the same result. Secondly, decisions are dependant less on the personalities of the individual decision makers and more on the structure of the institution itself .

According to Gibson, the other perspective, the individualistic approach focuses on the individual decision makers. It tries to explain discrimination in light of the beliefs, values and race of a particular juror or a decision maker. This approach tends to blame a particular individual for the racist behavior and not the entire institution .

Following the decisions made in one of the first cases, the Court concluded that the death penalty being imposed was arbitrary in nature; it was being administered on a discriminatory basis. Four years later, in Gregg v. Georgia the Court approved new statutes pertaining to death penalty, but with some reservations. The "modern era" of death penalty rulings had begun in the United States of America (Lynch & Haney, 2000, p. 338).

Race of the victim and defendant has on important bearing on the ruling especially in midrange (ambiguous) cases, where the jurors are confused about the guidelines deemed necessary for the decision making process. Such confusions influence the decision making process by white jurors in ways that can prove to be disadvantageous to black defendants. In midrange cases, black defendants are more likely to be sentenced to death than white defendants. According to Bodenhausen and his colleagues, "when information processing demands are high and the decision-making task is complex, ethnic stereotypes exert a relatively stronger influence on the process" (Lynch & Haney, 2000, p. 340). This point is reaffirmed in a study carried out by Lynch and Haney. Racial discrimination is pronounced in cases where "the capital sentencing instructions are poorly understood" (Lynch & Haney, 2000, p. 342).

Secondly and most importantly, the white participants interpreting the evidence in case of black defendants "undervalue, disregard and even improperly use" mitigating evidence relative to those participants who sentenced a white (Lynch & Haney, 2000, p. 355).

Jurors found it easier to holdback empathy from black defendants, rejecting their mitigating evidence. Factors such as 'deprived and...

354).
Contemporary literature questions the constitutionality of the death penalty on the basis of racial discrimination that accompanies a death sentence. "The Arbitrariness of the Death Penalty" was published 'a few months' before the United States Supreme Court passed its ruling on the case McCleskey v. Kemp. In this case, death penalty's imposition in Georgia was challenged on the grounds of a comprehensive study conducted by 'Professor David Baldus and his colleagues at The State University of Iowa' (Bienen, 1988, p. 243). The study comprised of empirical evidence and signified the correlation between racial discrimination and death penalty. The results were based on a study of over two thousand homicide cases.

Barry Nakell and Kenneth Hardy used a different state and a different time period altogether to address the same set of questions that formed the basis of the McClesky's case. However, the results were the same. Race was not an insignificant factor when it came to death sentences (Bienen, 1988, p. 245.).

According to Nakell and Hardy's work, "blacks who killed whites were twenty-two times more likely to be sentenced to death than blacks who killed blacks. The capital sentencing rate for all white victim cases was almost eleven times the rate for all black victim cases" (Bienen, 1988, p. 246). What is more significant here is the fact that when other factors are controlled, the race of the victim turned out to the most significant factor predicting a death sentence. The race factor was more significant than whether the defendant in question had played a prime role in the homicide. In data pertaining to 'murder during robberies' such acts of racial discrimination were more pronounced (Bienen, 1988, p. 246).

Professor White in his book, "Born- Again Death" argues that judicial sentences have been arbitrary in nature. In exploring this claim, the author loses the neutrality in writing style and his work is deemed slightly biased in nature. During this process of conveying information to the reader, Professor White focuses more on proving his thesis that is, 'death penalty is still arbitrary' (Berger, 1987, p. 1302). Professor White focuses on the racial discrimination in modern day judicial system when it comes to death sentences, allocating an entire chapter in his book to this particular topic.

According to Professor White, racial bias has always been a key factor, in United States and especially in the southern states, when it comes to handing out death sentences. The racial argument surfaced again in the post Gregg epoch, it became a major weapon of the abolitionists (Berger, 1987, p. 1309). In contemporary era, race of a victim and not the defendant, has been cited as one of the significant factors that affect death penalty rulings. Studies by social scientists, who employ all sort of 'state-of-the-art techniques' including regression and data analysis, argue that race is still the prime mover driving the 'engine of death'; race is a significant factor affecting the court rulings (Berger, 1987, p. 1309).

Professor White draws important conclusions from the study conducted by Professor Baldus. He argues that the killer of a white person was 4.3 times more likely to be sentenced to death than the killer of a black person. According to him, the disparity is clear when it comes to rulings by the judicial system and this disparity becomes pronounced in cases where there is a "reasonable probability but not a certainty that the death penalty will be imposed" (Berger, 1987, p. 1311).

Professor White further argues that in light of McCleskey case, 60% of the defendants comparable to McCleskey would not have been sentenced to death had their victims been black. White relays the extent of the problem, "The fact that the death penalty is reserved primarily for killers of white victims, tells us that in our society the loss of a white life provokes a fundamentally different level of concern than the loss of a black one" (p. 135) . Secondly, rulings like these ensure that racial prejudice continues to affect death penalty decisions. In Professor White's opinion, such arbitrariness in the judicial system might be hard to curb in the near future .

Holden-Smith (1996, p.1511) writes that in the southern states, black men have been handed death penalties on charges of raping white women. During the Civil War and early 1930's, black men faced lynching at the hands of angry and violent white mobs. . In due time, such instances of physical assaults had been replaced by legal lynching. Black men were sentenced to death on accounts of false charges; investigations and court proceedings were carried out in a manner that "they merely gave a passing nod" to the court's ruling.

Assistant professor Eric Rise uses the 'Martinsville Seven' case in her discussion of death penalty. A white woman was…