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Is the death penalty inherently unfair?: An examination of the viability of race-based claims in the McCleskey era | | | Looking to one of the larger death rows, that of California, the statistics become more troubling. 27.6% of murder victims in the state are white, but 82% of those executed were put to death for killing whites. And the race of the defendant also helps to predict those >1% of murder defendants that end up on death row in CA: Simply put, blacks who kill whites are more likely to be sentenced to death than whites who kill whites. (From Radelet). | |
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< | Cases involving the death sentence take many years to litigate and often because of prosecutorial misconduct and procedural mishaps, defendants have their sentences lessened to life without parole. Do you know if there has been a decline in the number who start off on death row and end up with a lesser sentence? Maybe this could point towards a trend of growing awareness of the race factor and the unpopularity of the death penalty. | >
> | Cases involving the death sentence take many years to litigate and often because of prosecutorial misconduct and procedural mishaps, defendants have their sentences lessened to life without parole. Do you know if there has been a decline in the number who start off on death row and end up with a lesser sentence? Maybe this could point towards a trend of growing awareness of the race factor and the unpopularity of the death penalty. There has been a nationwide trend of smaller death rows (although not in California). I don't know that there has been a decrease of people assigned to death row who later received LWOP. It probably depends a lot on the Supreme Court of a given state. I know that in California the Supreme Court has been really unreceptive for the past several years to sentence appeals and habeas claims. Ultimately though, I don't think an increase in the number of criminal defendants who lose their appeals or habeas claims would be a positive development in the justice system. | | | Unfortunately, this question of disparate impact that appears to be endemic throughout the criminal justice system is something federal courts are no longer interested in addressing. McCleskey v. Kemp, decided in 1987, has essentially disallowed disparate impact statistics from exonerating defendants. Without the smoking gun of exceptionally clear evidence of purposeful discrimination, a criminal defendant will lose a race-based claim. The Court in McCleskey was concerned about the policy consequences of acknowledging discrimination: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system...Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.” McCleskey, 482 U.S. 920, 314 (1987). Also problematic was that deciding for McCleskey could potentially have resulted in all those African Americans with white victims on death row being exonerated, as the Court wasn’t willing to stop the death penalty completely. | | | Yet while the average public defender does not have the option of choosing a client or pursuing these analyses, if race is a viable issue, there are ways to frame this claim with more potential for success. Racial prejudice takes two forms in sentencing: it can falsely inflate aggravation and decrease valid mitigation. That is, on the whole, race can tend to make prosecutor or a jury hold a defendant more culpable and find any mitigating circumstances less compelling. David Baldus found this pattern particularly strong in the context of black defendant/white victim cases where the jury was composed of five or more white males. | |
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< | If a defendant is pursuing a race-based claim through alternative forums, such as a clemency hearing or a state court that has legislation that allows for disparate impact to be considered (Kentucky and North Carolina), a defendant has a much greater chance of success. Is this true? The clemency process and pardon boards are HIGHLY political and the victims and the victims' family and friends are always involved and allowed to voice their opposition. Even in jurisdictions where McCleskey controls, if other evidence can be found of prosecutorial habits of racial discrimination, and statistics aren’t presented alone, there is also a fighting chance that racial discrimination will be found. | >
> | If a defendant is pursuing a race-based claim through alternative forums, such as a clemency hearing or a state court that has legislation that allows for disparate impact to be considered (Kentucky and North Carolina), a defendant has a much greater chance of success. Is this true? The clemency process and pardon boards are HIGHLY political and the victims and the victims' family and friends are always involved and allowed to voice their opposition. It's true to the extent that a defendant has no chance of being exonerated on evidence of discriminatory impact in a normal judicial forum, since courts are bound by McCleskey. On the other hand, a defendant could have a fighting chance in a clemency hearing. I raised this example as the Baldus article was written to assist a defendant in a clemency hearing. Of course politics play a role, but in that particular district, evidence of disparate impact was very damning; there wasn't a single white defendant on death row, and there were many examples of defendants similarly-situated to the defendant who weren't subject to death. Even in jurisdictions where McCleskey controls, if other evidence can be found of prosecutorial habits of racial discrimination, and statistics aren’t presented alone, there is also a fighting chance that racial discrimination will be found. | | | | |
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< | Ultimately, Equal Protection should be extended to those facing systemic and systematic discrimination in addition to protecting those who can prove specific instances of racial animus. The right to equal protection is not currently available to inmates or people charged with crimes? According to Amsterdam, “in the long run, the Supreme Court will probably deliver the constitutional coup de grace to capital punishment after enough other agents in the criminal process and organs of government…have become so disaffected with the penalty that death sentences turn vanishingly rare.” Yet hopefully, through the work of advocates and activists in the field, this process can be made more rapidly. There are many reasons to abolish the death penalty: it’s significantly more expensive than life without parole, it has no deterrent effect, this punishment is felt collaterally by the defendant’s family and community, many consider the death penalty a perverse way of “purifying” society by placing sole blame on the criminal defendant when in many cases, institution after institution has failed that defendant, and for every eight people executed by the death penalty, one has been proved innocent. Yet, for me, the most compelling reason to abolish this institution is its history and current state of systemic and systematic racial discrimination and its parallels to lynch mobs. If we really want to move on, as a society, not just from McCleskey, but from our history of oppressing minorities, we need to take a hard look at why we jail and execute disproportionately more African Americans and figure out how to fix this problem. We simply can’t solve it by ignoring the evidence. | >
> | Ultimately, Equal Protection should be extended to those facing systemic and systematic discrimination in addition to protecting those who can prove specific instances of racial animus. The right to equal protection is not currently available to inmates or people charged with crimes? In this paper, I'm arguing that equal protection is not being extended to people charged with crimes, because disparate impact may not be used to establish racial animus, and many studies that have controlled for race have found that African American defendants have a greater chance of being assigned death. EP is also not being extended to victims, as white-victim crimes are both prosecuted more heavily (hence the 80% statistic in the first paragraph) and given a too-large share of police resources. Have I not made this point clearly? Would you recommend anyway to clarify? According to Amsterdam, “in the long run, the Supreme Court will probably deliver the constitutional coup de grace to capital punishment after enough other agents in the criminal process and organs of government…have become so disaffected with the penalty that death sentences turn vanishingly rare.” Yet hopefully, through the work of advocates and activists in the field, this process can be made more rapidly. There are many reasons to abolish the death penalty: it’s significantly more expensive than life without parole, it has no deterrent effect, this punishment is felt collaterally by the defendant’s family and community, many consider the death penalty a perverse way of “purifying” society by placing sole blame on the criminal defendant when in many cases, institution after institution has failed that defendant, and for every eight people executed by the death penalty, one has been proved innocent. Yet, for me, the most compelling reason to abolish this institution is its history and current state of systemic and systematic racial discrimination and its parallels to lynch mobs. If we really want to move on, as a society, not just from McCleskey, but from our history of oppressing minorities, we need to take a hard look at why we jail and execute disproportionately more African Americans and figure out how to fix this problem. We simply can’t solve it by ignoring the evidence. | | | Should the death penalty be abolished or should it be applied equally to everyone? Is there credibility to the argument that courts and the justice system should just make sure that like crimes are punished in the same way? | |
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> | I am arguing that the death penalty should be abolished because it cannot be applied equally, but I try to be neutral on this front until the end of the paper as a rhetorical device. Could you clarify your second question? Are you saying that there is no value in ensuring equal protection to criminal defendants?  But thanks for the edit! I need to shorten this paper. Would you recommend cutting anywhere? | | | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, EricaSelig |
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