Discrimination and the Death Penalty Essay

This essay has a total of 2255 words and 14 pages.

Discrimination and the Death Penalty



Discrimination and the Death Penalty
By Katie Matthews


"Twenty years have past since this court declared that the death penalty must be imposed
fairly, and with reasonable consistency, or not at all, and, despite the effort of the
states and courts to devise legal formulas and procedural rules to meet this daunting
challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice
and mistake."

--Justice Harry Blackmun, Feb. 22, 1994.


Capital punishment is one of the most debatable subjects, in American society. Proponents
of the death penalty believe it is justice--retribution for the crimes committed.

The reason underlining Americans' overwhelming support of executions is usually revenge.
We believe that most serious crimes deserve the most serious punishment, as we recall the
statement from the Old Testament, "An eye for an eye, a tooth for a tooth," principle.
When we hear about a murderer, rarely do we want to understand what drove him to murder;
more often, we wish to kill him. It is difficult to understand that the vengefulness we
feel toward a murderer, which drives us to champion execution, is identical to the wish
for revenge the murderer feels for what he believes to be the horrendous injustices in his
life. Our desire to tame the heart of the murderer is quite limited. We feel as
murderous toward them as they do toward those they have killed. We wish either to kill or
torture them. This makes a murderer, if he is imprisoned, even more murderous. Just as
the murderer's murder accomplishes nothing, so too the death penalty has not in any way
decreased murder.


The judicial system was created in hopes of providing justice for all people. Although
movements such as Civil Rights and Black Power have taken place to ensure justice for all,
discrimination still exists in our judicial system. Capital Punishment is applied in an
unfair, arbitrary and discriminatory manner. As long as it remains a part of our penal
system, it will be used disproportionately against the poor, racial minorities, and those
who had received inadequate legal representation. The following essay will cover how
racism is applied in the death penalty; the means of discretion that the judges and jury
use; and how the poor are discriminated against due to their lack of proper council.


"Even under the most sophisticated death penalty statutes, race continues to play a major
role in determining who shall live and who shall die."

--Justice Harry Blackmun

Throughout American history, the death penalty has fallen disproportionately on racial
minorities. From 1930, the first year for which statistics are readily available from the
Bureau of Justice Statistics, to 1967, 3,859 persons were executed under civil
jurisdiction in the United States. During this period of nearly half a century, over half
(54%) of those executed were black, 45 percent were white, and the remaining one percent
were members of other racial groups (see fig. 1).


Between 1930 and 1976 nearly 90% of those executed for the crime of rape in this country
were African-Americans . Between 1930 and 1996, 4220 prisoners were executed in the U.S.;
more than half (53%) were black . Currently, about 50% of those on the nations death rows
are from minority populations representing 20% of the country's population. In 1972, the
U.S. Supreme Court overturned existing death penalty statutes in part because of the
danger that those being selected to die were chosen out of racial prejudice. Legislatures
adopted the death sentencing procedures that were supposed to eliminate the influence of
race from the death sentencing process. That was one of the grounds on which the Supreme
Court ruled the death penalty unconstitutional in Furman. However, evidence of racial
discrimination in the application of capital punishment continues. Nearly 40% of those
executed since 1976 have been black, although blacks constitute only 12% of the
population. And in almost every death penalty case, the race of the victims is white (see
fig. 2). Last year alone, 89% of the death sentences carried out involved white victims,
even though 50% of the homicides in America have been black victims . Of all the
executions that have occurred since the death penalty was reinstated in 1976, only one has
involved a white defendant for the murder of a black person.


Racial minorities are being prosecuted under federal death penalty laws far beyond their
proportion in the general population and the population of the criminal offenders. Race
of the victim was found to influence the likelihood of being charged with capital murder
or receiving the death penalty. For example, those who murdered whites were found more
likely to be sentenced to death than those who murdered blacks were . According to the
survey findings, 54% believed that blacks are more likely than whites to receive the death
penalty for the same crime. This record of racial injustice played a significant part in
Justice Harry Blackmun's recent decision to oppose the death penalty in every case. "Even
under the most sophisticated death penalty statutes," said Blackmun, "race continues to
play a major role in determining who shall live and who shall die."


Race continues to plague the application of the death penalty in the United States. On
the state level, racial disparities are most obvious in the predominant selection of cases
involving white victims. On the federal level, cases selected have almost exclusively
involved minority defendants. Under our system, the federal government has long assumed
the role of protecting against racially biased application of the law. But under the only
active federal death penalty statute, the federal record of racial disparity has been even
worse than that of the states. So far, the number of cases is relatively small compared
to state capital prosecutions. However, the numbers are increasing, and under legislation
currently being considered in Congress, the federal government would play a much wider
role in death penalty prosecutions.


"Whatever else might be said for the use of death as a punishment, one lesson is clear
from experience; this is a power that we cannot exercise fairly and without
discrimination."

--Gross and Mauro

Discrimination against the poor (and in our society, racial minorities are
disproportionately poor) is also well established. Fairness in capital cases requires,
above all, competent counsel for the defendant. Yet, "approximately ninety percent of
those on death row could not afford to hire a lawyer when they were tried." Common
characteristics of these defendants are poverty, that lack of firm social roots in the
community and inadequate legal representation at trial or on appeal. A survey conducted
on the public opinions regarding the death penalty showed that 70% believed that poor
people have a higher chance of being executed than rich people do, because they did not
receive proper legal representation. The poor and mentally ill are in fact, being
sentenced to death row much quicker than the rich are. They are sent to court and usually
end up with a court appointed attorney, who could usually care less about what happens in
the case. Most of them also have very little experience in capital cases anyway. Some
cities are trying things so that the court appointed attorneys have a little help by
setting up public defender offices. But there are still to many places that rely on the
list of local lawyers to draw from for their capital case attorney.


It is hard to blame them entirely though. A private attorney in Atlanta may be being paid
$75 an hour, while a court appointed lawyer will make about $30. States like Alabama make
it even worse by placing a limit on how much a court appointed lawyer can be paid for
pre-trial work, -$1000. Even if they spend 500 hours (the national average is 2000) on
pre-trail work, which amounts to $2 an hour. They would be better off working at
McDonalds.


The reason this happens is so that states can reduce already high costs. The most
comprehensive study in the country found that the death penalty costs and average of 2.16
million per execution over the costs of non-death penalty murder case with the sentence of
imprisonment for life. In Texas, death penalty cases cost an average of 2.3 million,
about three times the cost of imprisoning someone in a single cell at the highest security
level for 40 years. Hundreds of millions of dollars and thousands of hours of court time
would be saved by replacing the death penalty with alternative sentences. The money saved
could be devoted to crime prevention measures, which really do reduce crime and violence,
and thus are the true alternatives to the death penalty.


"A majority of Americans have taken a very strong position on an issue about which they are substantially uniformed."
--R. Bohm

The discretion of judges and juries in imposing the death penalty enables the penalty to
be selectively applied. Discretion in the criminal justice system is unavoidable. The
history of capital punishment in America clearly demonstrates the social desire to
mitigate the harshness of the death penalty by narrowing the scope of its application.
Whether or not explicitly authorized by statutes, sentencing discretion has been the main
vehicle to this end. But when sentencing discretion is used - as it to often has been -
to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it
becomes injustice.


Mindful of such facts, the House of Delegates of the American Bar Association (including
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