A good example is the 1985 murder of convenience store clerk Cynthia Barlieb, whose murder was prosecuted by a district attorney bent on securing execution for Barlieb's killer (Pompeilo 2005). The original trial and all the subsequent appeals forced Barlieb's family, including four young daughters, to spend 17 years in the legal process - her oldest daughter was 8 years old when Cynthia was first shot, and 25 when the process ended without a death sentence (Pompelio 2005). During those 17 years, Cynthia Barlieb's family was forced to repeatedly relive her murder.
When a person is murdered, it is understandable that American society demands justice, particularly on behalf of the victim's family and loved ones. But we can not advocate capital punishment under the guise of protecting the interests of victims' families, and then cut those members out of the process when they do not support the death penalty. and, yet, there are many examples of this occurring. It is especially heinous to pursue a death penalty sentence against the wishes of victims' families when the pursuit of that sentence will force the victims' families to be part of the legal process for years.
In the end, pursuing the death penalty is not about protecting the rights of victims' families - it is a matter of prosecutorial ambition and discretion. And that, by itself, is not nearly enough to construct an ethics-based defense of capital punishment.
The wrongly accused: DNA and other exonerations
The last quarter of the 20th century ushered in a variety of technological innovations in crime scene investigating, including the ability to test DNA to establish that someone was at the seen of a crime. Prior to DNA evidence, murder convictions were dependent on other types of physical evidence and more shaky forms of proof, such as eyewitness testimony. Now, DNA testing can often detect whether a person accused of a crime was at the scene - or whether he or she was not.
Naturally, many Americans were sentenced to death before DNA technology was available, and those who have not yet been executed have often used the new technology to establish their innocence. According to the Death Penalty Information Center, since 1973-122 death row inmates in 25 states have been exonerated, often through the use of DNA evidence (Walker 2006).
As startling as these numbers are, we must bear in mind that they are somewhat blunted. Death row inmates can only overturn their convictions through DNA testing when items containing DNA (such as hair, blood or semen) were collected and are still available to be tested.
One death row inmate cleared by DNA testing is Earl Washington, who was sentenced to death for the rape and murder of a woman, but was pardoned after DNA evidence proved him innocent after 16 years of incarceration (ACLU 2002). The American Civil Liberties Union has argued that Washington is retarded and was bullied into a confession by Virginia police (ACLU 2002).
Prisoners who can not take advantage of DNA testing have to hope for other miracles. One of those prisoners was Juan Melendez, who spent 18 years on Florida's death row before another person confessed to the crime (Johnson 2006). Melendez lost a wife and three children and still suffers post-traumatic disorder (Johnson 2006). Another famous case involved Anthony Porter of Illinois, who was exonerated by another man's confession days before he was scheduled to be executed in 1999, leading the state to call a moratorium on executions (Walker 2006).
The point is, there is irrefutable evidence that innocent American citizens have been sentenced to death, and that some have been fortunate enough to prove their innocence before being executed. But we must assume that innocent people have been executed in America. For example, DNA evidence has been used to overturn murder convictions in cases where the accused would have otherwise been executed. Before such testing was available, exoneration for these people would have been impossible. It is logical to assume, if we consider all of the Americans who were executed before DNA testing became possible, that some of those people were innocent. Even death penalty supporters would have to agree that this is clearly morally wrong.
Racism and the death penalty
Data show that racial discrimination often finds its way into American courtrooms and that skin color plays a significant role in who receives the death sentence and who is spared execution.
According to the American Civil Liberties Union, people of color have accounted for 43% of all executions since 1976, and 55% of all people currently awaiting executions - statistics that are disproportionate to the percentage of the general population that consists of people of color (ACLU 2006). Further, ACLU points out that although white people account for half of all murder victims, 80% of all capital punishment cases involve white victims (ACLU 2006). There seems to be a greater tendency to pursue the death penalty when a white person has been killed.
Quite simply, race has a tremendous effect on trial attorneys and even the juries themselves. It is an open secret that prosecutors and defense attorneys 'jury shop' by race - if an African-American is on trial for capital murder, a prosecutor may try to assemble a predominantly Caucasian jury and a defense lawyer may try to do the opposite. In fact, in the case of Miller-El v. Dretke in 2004, the U.S. Supreme Court overturned a death sentence because prosecutors obviously tried to exclude African-Americans from the jury and even asked different questions, depending on a potential juror's race (Chemerinsky 2006).
Racial bias has been a part of capital murder trials for some time. Research by Minkes and Vanstone into capital murder cases during the 1950s that resulted in executions found that racial biases and stereotypes were commonly allowed to infiltrate routine courtroom arguments (Minkes and Vanstone 2006). In short, those accused of capital murder are prosecuted and judged by other human beings who bring their personal biases into the process.
In fact, racial biases are common among juries. The reason prosecutors and defense attorneys shop for juries by race is because it works. Dezhbakhsh and Shepherd point out that when states began in the 1960s to give juries authority to impose the death penalty, the process became completely arbitrary, influenced by the various biases of the jurors (Dezhbakhsh and Shepherd 2006). Research by Antonio has shown just how arbitrary juries are, proving that life and death decisions are often made by jurors based on such simple criteria as how emotionally engaged the jurors perceive the defendants as being (Antonio 2006). Naturally, this opens doors to discrimination, as members of various cultures may be conditioned to handle the shame or tragedy of a criminal trial dissimilarly (Antonio 2006).
One might argue that such racial biases could influence individual jurors, but what are the chances that an entire jury would be tainted by racial bias? The rebuttal to that argument is simple: the entire jury does not have to be tainted. In Florida, for example, once a defendant has been convicted of murder, it only takes a simple majority of the 12 jurors to recommend execution in order for a death sentence to be handed down (Taylor 2006). In Florida, it only takes one racist juror to swing a jury recommendation from life in prison to death.
The criminal justice system is run by people and, as such, will always be imperfect. As long as there are racial biases in America, such biases will find their way into courtrooms. It is particularly troubling that the opportunities for these biases to affect a murder trial are so pervasive. From jury selection to deliberations, race can and does play a significant role in capital murder cases. And the results are clear - a disproportionate percentage of people of color are being executed.
The death penalty is not just theoretically racist - it is quantifiably racist, which presents a strong argument for the abolition of the death penalty.
Executing the mentally and psychologically incompetent
The administration of capital punishment in America has not only resulted in discrimination against people of color, it also has resulted in the execution of the mentally and psychologically incompetent. People who are mentally ill or even retarded have been sentenced to death and even executed, as attorneys and juries employ an overly simple standard such as whether the person knew right from wrong. This burden is unreasonably low - after all, many young children know right from wrong, but we would be hard pressed to find Americans who advocate the execution of young children.
Many states impose death sentences on convicted murderers who are demonstrably mentally or psychologically incompetent, and these cases sometimes reach the U.S. Supreme…
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