The two entries prior to this one, both by Kent, discuss (1) the role of slippery language in discussions about criminal law, and (2) deceptiveness in a recent North Carolina study purporting to find racial discrimination in that state's application of the death penalty. The two analyses are related in a way that might not seem obvious, but is a telling illustration of the truth of both.
North Carolina adopted a so-called "Racial Justice Act" to permit the use of statistics to illustrate that the state's death penalty is applied more harshly, and frequently, to blacks. The recent Radelet study purports to show just that, but does so only by silently redefining what "racial discrimination" has previously been understood to mean.
Up to now, normal people thought that discrimination against black defendants meant singling them out for harsher treatment because of their race. But the Radelet study shows nothing of the kind, and does not even claim to so far as I have been able to find. (The failure to find it mirrors a similar failure in a Maryland study a few years ago). Instead, it finds disparity based on the race of the victim.
Note to Professor Radelet: The victim was not selected for capital prosecution. The defendant was, and the only relevant question is whether that selection was racially biased. It wasn't.
In other words, Radelet's study finds a disproportionality that is irrelevant to the purpose for which the research was ostensibly undertaken. This is the fact the study's rollout is designed to obscure by its sleight-of-hand language. If Prof. Radelet wanted to make the point that blacks disproportionately commit crimes, including murder, he's a few decades late. But that is not the fault of the criminal justice system, and still less is it evidence of biased prosecutors or juries.
What race-of-the-victim studies at least arguably show is that the system does not adequately value the lives of black murder victims, because their killers are less frequently subject to the death penalty. But that is hardly a reason to end capital punishment. To the exact contrary, it's a reason to apply it more resolutely, broadly -- and frequently.