However, this difficulty can be avoided by examining van den Haag's distinction between justice and equality. The physical reality of administering justice can never match its theoretical guidelines. Justice is a necessary tool in the aim of producing a functional society. Accordingly, inequities that arise in its practice must be tolerated -- although fought against. State sanctioned killing, on the other hand, is not a logistic necessity for any society. Death is the most severe and permanent form of punishment American society has to offer. Mistakes and breeches of justice cannot be rectified. The most direct, simplest, and easiest way to eliminate the arbitrary factors in a form of punishment not essential to society is to remove that form of punishment. Justice is intrinsically unequal, so assigning it the responsibility of life and death decisions is unwarrantable. Stephen Nathanson writes,
To do away with punishment entirely would be to do away with the criminal law and the system of constraints which it supports. Hence, even though the system is not a just one, we believe that we must live with it and strive to make it as fair as possible. On the other hand, if we abolish capital punishment, there is reason to believe that nothing will happen." (Baird 172).
Unfortunately, the African-American male has been identified by a large portion of the American public -- both consciously and subconsciously -- as a very real threat to social stability and well being. "Capital punishment also has been crucial in the processes of demonizing young, black males and using them in the pantheon of public enemies to replace the Soviet 'evil empire.'" (Sarat 18). Since 1976, although African-Americans constitute approximately one tenth of the United States' population, they have made up 35% of the nation's executions (Sarat 18). It is reasonable to wonder whether this is justifiable on any level. In other words, is the guilt of these individuals certain? Studies have shown that, once convicted, minorities are far more likely to receive the death sentence, but the number of innocent individuals put to death in not altogether clear.
It is likely that not only are minorities more likely to be executed on arbitrary bases, but they are also more likely to receive unfair trials, and consequently, wrongful convictions. A second study by Baldus and Woodworth revealed problems along nearly every level of criminal prosecution. They examined, among other things, jury selection in Philadelphia courts and the use of peremptory challenges by prosecuting attorneys. "In his study of jury selection in 317 trials, Professor Baldus found race to be an overwhelming factor. On average, prosecutors stuck 51% of the African-American venire members but only 26% of the non-African-American venire members." (U.S. Bureau of Criminal Justice Statistics 206). They also found a strong correlation between the final racial configuration of the jury and the ultimate verdicts they reached. Another significant factor contributing to wrongful convictions is false identifications. Baldus and Woodworth found that witness misidentifications played the deciding factor in the trials of 85% of individuals later exonerated with DNA evidence (U.S. Bureau of Criminal Justice Statistics 308). Additionally, these mistakes were soundly linked to the racial background of the suspect.
The moral justification for the death penalty becomes even more difficult in light of the fact that numerous individuals who are put to death are, in fact, innocent. Furthermore, of those wrongfully convicted, a disproportionate number of them are minorities. Van der Haag asserts that prosecution of the innocent, at times, is justifiable concerning the larger goal of criminal justice. However, this stance is difficult to defend when discussing the matter of death. Unjust convictions possess the potential to be remedied if, of course, the individual has not been executed. It is the permanent and brutal nature of capital punishment that gives it zero latitude for error -- but error is inevitable.
It is almost undeniable that capital punishment in the United States needs to be altered. To begin with, a special commission study needs to be enacted on a nationwide scale; the smaller, individual state studies are simply not sufficient. This commission should specifically investigate the impact of race upon death penalty cases. During the time this study is conducted a temporary stay of execution should be extended across the entire United States. The data collected should be analyzed by an independent entity and supervised by representatives of both the state and the convicts. Also, formal and universal standards should be set for specifically what cases and forms of crime qualify for capital punishment. These standards should rely entirely upon the nature of the crime and not extraneous circumstances. Upon the completion of the study the Supreme Court should rule on the validity of capital punishment in the United States.
The problems that have brought about the prevalent racial bias in the American justice system are deeply rooted in our society. The fact is that justice is not blind because no human can ever be completely impartial. A state that endorses killing as a form of punishment must be free of arbitrary preference and error. "The United Nations Commission on Human Rights has urged the United States to change its position on capital punishment. It believes a nation that uses the death penalty must be a perfect one. And there are no perfect nations." (Kurtis 201). Hopefully, members of the U.S. government will recognize that capital punishment needs to be formally investigated, and that the conclusions reached should forbid its perpetuation.
Baird, Robert M. And Stuart E. Rosenbaum. (1995). Punishment and the Death Penalty. New York: Prometheus.
Bessler, John D. (2003). Kiss of Death: America's Love Affair with the Death Penalty. Boston: Northeastern University.
Kurtis, Bill. (2004). The Death Penalty on Trial: Crisis in American Justice. New York: Public Affairs.
Sarat, Austin. (2001). When the State Kills: Capital Punishment and the American Condition. Princeton:…