Studies consistently and generally show that, all factors held constant, the race of the accused is a critical variable in determining who will be sentenced to death. Black citizens are, thus, subjected to double discrimination. From initial charging decisions to plea bargaining to sentencing by the jury, Black defendants receive harsh treatment and, as victims, their lives are given less value than whites. Most juries still consist of all white members in many places (Freedman).
Freedman (1997) adds that most capital defendants cannot afford a suitable attorney and so the court must appoint a counsel. Major studies found that the quality of defense representation in capital murder trials is in general far lower than in felony cases. This area is highly specialized. The State must offer attractive pay to competent counsels on the one hand and there many poor people needing them on the other. When the poor person must contend with an equally or more culpable but more financially capable contender, the poor one would clearly suffer on account of this incapacity alone (Freedman).
It is also not rare that jurors tend to sentence to death a person who seems different from themselves more than someone who is similar (Freedman 1997). This can be the explanation to the observation that those with mental disabilities are sentenced to death at a far higher rate than can be explained. Only prejudice is behind it. Another factor is gender (Turow 2003). Statistics show that there are more Blacks and other people of color in prisons and are executed than there are whites. Killing a woman also merits capital punishment at three and half times the rate for killing a man. Add to this what Turow calls the "uncontrollable variables," such as the identities or personalities of the prosecutor and the defense lawyer, the nature of the judge and the jury, the characteristics of the victim and the place of the crime. The impact of these, according to Turow, shows anything but a "clearly proportionate morality (Turow)."
Goldberg (1989) further deplores that the death penalty exchanges "real" lives for statistical lives, has uncertain deterring value, is uncivilized and built only on the perceived humaneness of those who advocate it. It unjustifiably sacrifices the real lives of real persons it executes for those who will not be murdered if the death penalty deters and is invoked. He also maintains that, since it is uncertain whether it really deters, the death penalty should not be used. The death penalty is also deemed "uncivilized" or not fit for a society, which rejects a culture of aggression. And Goldberg believes that opponents, not supporters, of the death penalty act out of humane motives
The April 2001 poll of 1,000 adults, conducted by the International Communications Research for ABC News and the Washington Post showed that a majority of Americans wanted a moratorium on the death penalty while a commission studied its administration (American Demographics 2001). Annual surveys show that support for capital punishment steadily increased between 1967 and 1997. This translated to ae of the American people. Today, surveys reveal that two-thirds still support the death penalty. The number went down because of the introduction and development of DNA tests and as a consequence of overturned convictions, increasing evidence of racial discrimination in imposing the death penalty, and high-profile execution of persons who sympathized with the American public. Statistics suggest waning support for capital punishment as a deterrent to murder from 59% in 1976 to 42% in July 2001. This decrease in the effect of capital punishment as a deterrence to crime is not accompanied by decreased support for the death penalty itself. If belief in the deterring effect of capital punishment fell by 10% between 1976 and 1997, support for the death penalty increased by 8%..
Highly publicized and sensationalized executions, scandals and other controversies appear to have diminished support for the death penalty, now lower than the levels, which peaked for the last 30 years. The trend reflect the lack of awareness or understanding of the deterrent effects of the death penalty in most Americans. Belief in the deterring value of capital punishment appears to have gone down in recent years. But deterrence remains the strongest ground for public support in the basic fairness of the death penalty. Americans are inclined to grant clemency to young convicts and convicts with mental illness or mental retardation. While figures attest to the continuing support of the majority of the American public for the death penalty, the risk of executing the innocent or wrong person continues to be the prevailing concern along with the support (American Demographics).
In an attempt at minimizing the flaws of the current death penalty system, Turow and his colleagues proposed a series of reforms, aimed mainly at reducing the risk of innocent convictions (Turow 2003). They recommended the videotaping of all interrogations of suspects in capital offenses. They also proposed altering lineup procedures, considering that eyewitness has proved to be less reliable in recent years. The group also urged that the court provide pretrial hearings to determine the reliability of jail house snitches. The group addressed the apparent randomness of the method used in sending defendants to the death row by proposing the trimming down of the 20 eligibility criteria set for capital punishment in Illinois to only 5. These are multiple murders, murder of a police office or firefighter, murder in a prison, murder aimed at hindering the justice system, and murder involving torture. They suggested the elimination of murders committed in the course of performing another felony. And they strongly suggested the creation of a State-wide monitoring body to introduce uniformity in the selection of death-penalty cases. They likewise recommended that sentences of life without parole be guaranteed in case litigation does not result in the death penalty. And they also suggested reforms, which would expedite the post-conviction review and clemency processes. In the stiffness of their recommendations, Turow stresses that their proposals still missed the ultimate question.
Turow, Easterbrook, Freedman, Goldberg and other sincere opponents of the death penalty are well aware and agree that that ultimate objection to the death penalty is the "wickedness of execution itself (Easterbrook 2003)." This is the reason why public opinion continues to vacillate over its propriety as an means to addressing the commission of capital crimes. Terminating human life is simply repugnant to our moral thought and sense of moral proportion. The vindictiveness of the Old Testament's "a tooth for a tooth" has been replaced by the primacy of forgiveness in the New Testament. The death penalty remains an unsatisfactory approach to serious crimes because of the natural repugnance of extinguishing a human life to compensate for another, though unlawfully taken.
American Demographics. The Death Penalty - American Attitudes. Media Central, Inc.: PRIMEDIA Company, November 1, 2001
Easterbrook, Gregg. The Myth of Fingerprints. Florida: New Republic, July 21, 2003