Death Penalty in the Constitutional Law

¶ … public to scholars, the death penalty has come under severe criticism in contemporary epoch. The debate between the supporters and criticizers of capital punishment has been going on for decades. Is death penalty constitutional? What are the factors that may render it unconstitutional? Is racial discrimination one of such factors?

The paper uses a set of law review articles and highlights racial discrimination in death penalty in United States, discusses different theories with regard to the racial bias question and explores the debate of racial bias pervading the American judicial system to question the constitutional basis of death penalty.

A lot of research has been conducted on racial discrimination in courts. All this research can be classified in terms of a societal or an individual perspective. Gibson discusses these two approaches on racial discrimination. The first approach can be attributed to sociologists who believe that courts can not remain neutral. They are 'systematically biased' in a manner that they "allocate values and manage conflict." Just like any other economic or political institution, courts are merely treated as resources and tools by the powerful segments present in the society to advance their own vested interests. This happens because the society we live in is heterogeneous; power is distributed unequally among the classes. Hence, courts become a tool for these powerful groups. Then there is always this ever present and ever ominous notion of "majoritarian tyranny" which is manifested in the white supremacy culture.

Here discrimination is treated as flowing from the institution itself. This is known as "institutional racism." Institutional racism occurs when the working and procedures of an institution are impersonal but the decisions or the outcomes flowing out from it are biased as has been the case with the American judicial system (Gibson, 1978, p. 456). Gibson cites a few problems with this particular approach. Firstly, this approach assumes "little intra-institutional variation in decision making process" (Gibson, 1978, p. 456). This means that decisions going through the same process will end up with the same result. Secondly, decisions are dependant less on the personalities of the individual decision makers and more on the structure of the institution itself .

According to Gibson, the other perspective, the individualistic approach focuses on the individual decision makers. It tries to explain discrimination in light of the beliefs, values and race of a particular juror or a decision maker. This approach tends to blame a particular individual for the racist behavior and not the entire institution .

Following the decisions made in one of the first cases, the Court concluded that the death penalty being imposed was arbitrary in nature; it was being administered on a discriminatory basis. Four years later, in Gregg v. Georgia the Court approved new statutes pertaining to death penalty, but with some reservations. The "modern era" of death penalty rulings had begun in the United States of America (Lynch & Haney, 2000, p. 338).

Race of the victim and defendant has on important bearing on the ruling especially in midrange (ambiguous) cases, where the jurors are confused about the guidelines deemed necessary for the decision making process. Such confusions influence the decision making process by white jurors in ways that can prove to be disadvantageous to black defendants. In midrange cases, black defendants are more likely to be sentenced to death than white defendants. According to Bodenhausen and his colleagues, "when information processing demands are high and the decision-making task is complex, ethnic stereotypes exert a relatively stronger influence on the process" (Lynch & Haney, 2000, p. 340). This point is reaffirmed in a study carried out by Lynch and Haney. Racial discrimination is pronounced in cases where "the capital sentencing instructions are poorly understood" (Lynch & Haney, 2000, p. 342).

Secondly and most importantly, the white participants interpreting the evidence in case of black defendants "undervalue, disregard and even improperly use" mitigating evidence relative to those participants who sentenced a white (Lynch & Haney, 2000, p. 355).

Jurors found it easier to holdback empathy from black defendants, rejecting their mitigating evidence. Factors such as 'deprived and abusive upbringing' that lead to a number of adult psychological problems and emotional disturbances such as violence were considered and appreciated in cases that involved white defendants and ignored in cases of black defendants (Lynch & Haney, 2000, p. 354).

Contemporary literature questions the constitutionality of the death penalty on the basis of racial discrimination that accompanies a death sentence. "The Arbitrariness of the Death Penalty" was published 'a few months' before the United States Supreme Court passed its ruling on the case McCleskey v. Kemp. In this case, death penalty's imposition in Georgia was challenged on the grounds of a comprehensive study conducted by 'Professor David Baldus and his colleagues at The State University of Iowa' (Bienen, 1988, p. 243). The study comprised of empirical evidence and signified the correlation between racial discrimination and death penalty. The results were based on a study of over two thousand homicide cases.

Barry Nakell and Kenneth Hardy used a different state and a different time period altogether to address the same set of questions that formed the basis of the McClesky's case. However, the results were the same. Race was not an insignificant factor when it came to death sentences (Bienen, 1988, p. 245.).

According to Nakell and Hardy's work, "blacks who killed whites were twenty-two times more likely to be sentenced to death than blacks who killed blacks. The capital sentencing rate for all white victim cases was almost eleven times the rate for all black victim cases" (Bienen, 1988, p. 246). What is more significant here is the fact that when other factors are controlled, the race of the victim turned out to the most significant factor predicting a death sentence. The race factor was more significant than whether the defendant in question had played a prime role in the homicide. In data pertaining to 'murder during robberies' such acts of racial discrimination were more pronounced (Bienen, 1988, p. 246).

Professor White in his book, "Born- Again Death" argues that judicial sentences have been arbitrary in nature. In exploring this claim, the author loses the neutrality in writing style and his work is deemed slightly biased in nature. During this process of conveying information to the reader, Professor White focuses more on proving his thesis that is, 'death penalty is still arbitrary' (Berger, 1987, p. 1302). Professor White focuses on the racial discrimination in modern day judicial system when it comes to death sentences, allocating an entire chapter in his book to this particular topic.

According to Professor White, racial bias has always been a key factor, in United States and especially in the southern states, when it comes to handing out death sentences. The racial argument surfaced again in the post Gregg epoch, it became a major weapon of the abolitionists (Berger, 1987, p. 1309). In contemporary era, race of a victim and not the defendant, has been cited as one of the significant factors that affect death penalty rulings. Studies by social scientists, who employ all sort of 'state-of-the-art techniques' including regression and data analysis, argue that race is still the prime mover driving the 'engine of death'; race is a significant factor affecting the court rulings (Berger, 1987, p. 1309).

Professor White draws important conclusions from the study conducted by Professor Baldus. He argues that the killer of a white person was 4.3 times more likely to be sentenced to death than the killer of a black person. According to him, the disparity is clear when it comes to rulings by the judicial system and this disparity becomes pronounced in cases where there is a "reasonable probability but not a certainty that the death penalty will be imposed" (Berger, 1987, p. 1311).

Professor White further argues that in light of McCleskey case, 60% of the defendants comparable to McCleskey would not have been sentenced to death had their victims been black. White relays the extent of the problem, "The fact that the death penalty is reserved primarily for killers of white victims, tells us that in our society the loss of a white life provokes a fundamentally different level of concern than the loss of a black one" (p. 135) . Secondly, rulings like these ensure that racial prejudice continues to affect death penalty decisions. In Professor White's opinion, such arbitrariness in the judicial system might be hard to curb in the near future .

Holden-Smith (1996, p.1511) writes that in the southern states, black men have been handed death penalties on charges of raping white women. During the Civil War and early 1930's, black men faced lynching at the hands of angry and violent white mobs. . In due time, such instances of physical assaults had been replaced by legal lynching. Black men were sentenced to death on accounts of false charges; investigations and court proceedings were carried out in a manner that "they merely gave a passing nod" to the court's ruling.

Assistant professor Eric Rise uses the 'Martinsville Seven' case in her discussion of death penalty. A white woman was allegedly raped by seven men in Martinsville, Virginia. All of these seven men were sentenced to death and found themselves on an electric chair . The case is of utmost importance since it signifies the legal struggle to fight racism, racism that pervades the American criminal justice system .

However, Rice theory is anti-thesis of racial discrimination in the American judicial system. Rice argues that the seven black men accused did not only receive a fair trial, the atmosphere was free of "lynch mobs." He contends that race was not the sole or the most significant factor behind the court's verdict; factors and values other than race were into play as well. These values he points out are "due process, crime control, community stability, judicial restraint, and domestic security" (Rise, 1998, p. 3).

According to Rise, the evidence produced was clearly against the seven men charged with guilt in this case. For him, it is not a case of "legal lynching" or a case that supplanted the white supremacy culture in South. For Rise, it is a case where the court followed all the procedures to ensure justice was served. Holden-Smith (1996, p.1574) raises an interesting point here, that there was a conflict between the justice in this case, conflict between the justice for the victim and justice for the accused "black" attackers. This point is left out by Rise during his discussion on the case .

Professor Rise on the other hand argues that each accused man in this trial was given appointed counsel and some of them were highly respected members of the local bar. In addition, the defense put up by the defense council in this case was more forceful and impactful than the 'typical' defense given by any white defense council to a black man .

Holden-Smith (1996) would like to believe otherwise. Firslt, all the accused blacks were tried infront of white juries. The handful blacks that were present in jury were struck off the panel. Secondly, it is highly questionable that the confessions made by each accused in this case were voluntary. Defendants were not aware of their right to counsel during the confessions. Thirdly, the juries took less than two hours to come to a verdict. Such type of behavior was typical of white juries trying accused black men in the South. Lastly, despite Rise's argument of a lynch free environment, it is hard to believe that the ruling decided on by the jury committee was not influenced by sentiments of white supremacy prevailing in the community (Holden-Smith, 1996, p. 1578).

Scholarly work has argued time and time again that minority groups in America have experienced discrimination at the hands of judicial system. Human Rights Watch report of 2000 indicates that black male drug users are more likely to be sentenced to jail than a white male drug user. Though scholars agree that racial discrimination is present, they are more divided when it comes to what causes this racial discrimination (Mitchell, Haw, Pfeifer, & Meissner, 2005, p. 622).

The literature is divided when it comes to analyzing the correlation between racial discrimination and death penalty. According to the study conducted by Sweeney and Haney (1992), there is a small yet significant effect of race on death sentences. The results suggest that white jurors are more likely to give lengthy sentences to the black defendants as compared to the white defendants (Mitchell, Haw, Pfeifer, & Meissner, 2005, p. 623). Mazzella and Feingold, on the other hand argue that race is not a significant factor when it comes to death penalty. However, when it comes to different types of crimes such as murder and embezzlement, then race does play a part in court's or jury's verdict (Mitchell, Haw, Pfeifer, & Meissner, 2005, p. 624).

According to Mitchell, Haw, Pfeifer, and Meissner (2005) study's results, race plays a small but a significant role in the decision making process, a result that is consitent with the one evaluated by Sweeney and Haney (1992). However, there was a surprising result in their investigation. Black jurors or particiapnats tended to give a stricter and lengthy sentences to black defendants as compared to white jurors. The same was the case when it came to death sentences. This element of bias ran high in cases where jury were not instructed properly i.e. ambiguous cases. These scholars argue that when adequate instructions are provided to the jury the racial affect on death sentences can be curbed (Mitchell, Haw, Pfeifer, & Meissner, 2005, p. 629). They further argue that an act of deliberation among the jurors may increase or decrease racial bias. The race of the foreman might prove to be a significant factor when it comes to jury's verdict (Mitchell, Haw, Pfeifer, & Meissner, 2005, p. 635).

According to Goodpaster, (1983, p. 820) race of a victim is a significant variable when it comes to judicial sentences. Killers of white man are more likely to face gallows than the one murering a black. Of these, black killers of white are most likely to receive a death sentence. This reaffirmed in by Bowers and Pierce and Ziesel's study,

"The data reflect a twofold departure from even-handed justice which is consistent with a single underlying racist tenet: that white lives are worth more than black lives. From this tenet it follows that death as punishment is more appropriate for the killers of whites than for the killers of blacks and more appropriate for black than for white killers" (Bowers & Pierce, 1980, p. 601).

According to Goodpaster (1983, p.820), "The likelihood of an aggravating circumstance finding, which death-qualifies the crime, is also greater for blacks who kill whites than for any other grouping." Bowers and Pierce (1980, p. 615) argue that,

"The effect of race of victim among blacks convicted of first degree murder far exceeds the impact of an accompanying felony charge. Indeed, among blacks charged with an accompanying felony, virtually half were found to have an aggravating felony circumstance by sentencing authorities if their victims were white, while not one was found to have such an accompanying circumstance if the victim were black" (Bowers and Pierce, 1980, p. 615).

According to Goodpaster, (1983, p.821) it must be kept in mind that that such racial disparity may vary across regions and locations. The sentence or punishment for the same offense might be different in two different locations. Hence, when you fuse this regional disparity to racial disparity the resulting effects of racial bias are compounded. For example, "For [felony-murder] killings under similar circumstances the death sentence is roughly thirty times more likely for the killer of a white in the panhandle [of Florida] than for a killing of a black in the northern region" (Bowers & Pierce, 1980, p. 607).

Bowers and Pierce (1980, p.616) sum up the arguments made by Goodpaster,

"Race is truly a pervasive influence on the criminal justice processing of potentially capital cases. . . . And it is an influence that persists despite separate sentencing hearings, explicitly articulated sentencing guidelines, and automatic appellate review of all death sentences" (Bowers & Pierce, 1980, p. 616).

John C. McAdams uses the concept "mass market" to explain the racial discrimination that has infected the American judicial system. According to this argument, criminal system is not only tougher on the black community or the black defendants but is likely to execute more black defendants than the white ones (McAdams, 1998, p. 154). However, McAdams argues that the vast majority of murders are "intra-racial and not inter-racial"; hence the entire concept of racial discrimination is ambiguous in parts. According to him, 90% of the murders involve a black killing a black or a white killing a white (McAdams, 1998, p. 155).

McAdams also talks about the specialist version. The "specialist" version of the racial disparity argues that the criminal system discriminates against the black defendants because there is lack of concern for the black victims. This argument is reaffirmed by Anthony Amsterdam, "although less than 40% of Georgia homicide cases involve white victims, in 87% of the cases in which a death sentence is imposed, the victim is white. White-victim cases are almost eleven times more likely to produce a death sentence than are black-victim cases (Amsterdam, 1988)" (McAdams, 1998, p. 160).

According to McAdams, scholars over the decades have held the notion that jurists are racists and hence are harsh towards the black defendants. He argues that if they are indeed racists and lack empathy for the black defendants then why would they let these black defendants off the hook with lenient sentences? Such an argument is flawed. For McAdams a plausible argument would be that when compared to murderers of whites, the American criminal system spends and uses fewer resources to convict the murderers of blacks (McAdams, 1998, p. 167).

The discussion on the correlation between race and death penalty has been a subject of intense empirical debate. The United States is the only western country that allows administration of death penalties. In the post Gregg era, race still stands out as one of the significant factors that affects the death penalty decisions. Bowers and Pierce, Radelet, Paternoster, Keil and Vito, Aguirre and Baker, Baldus, Woodward, and Pulaski have all concluded that race has a strong bearing on the prosecutor's decision to seek the death penalty against defendants and for imposing the death penalty respectively (Sampson & Lauritsen, 1997, p. 354).

All of the studies mentioned above agree that race of the victim along with the race of the defendant influence the prosecutor's decision and his willingness to seek a death penalty and it also affects the jurors and judges decision.

Offenders (from either race) charged with a murder of a black person are less likely to be sentenced to death. One the other hand, black defendants are also more likely to be sentenced to death than the white ones. These differential patterns found in American judicial system have persisted despite strict controls (Sampson & Lauritsen, 1997, p. 355).

According to DeLisi and Regoli (1999), conventional wisdom holds that black are a target of racial discrimination. Crimonologists believe that racial iscrimination is a product of racism that has pervaded the American judicial system. However, Delisi and Regoli (1999) argue that the overinvolvement of blacks runs parallel to the offending patterns. It is not a racial bias. Their involvement in murders and other offenses is due to their position in society, their class position in society and the poverty and hunger that they experience. Instead of taking such external factors into account, scholars tend to portray the overinvolement of blacks in offenses as racial bias in the American judicial system. Secondly, in their opinion racial disparities did exist but existed only in the epoch when the racial discrimination was at its apex in United States i.e. The peiod of Jim Crow segregation and slave era. For example, during the slave era in Virginia, black could be sentenced to death for seventy three difffernt offenses as compared to one for whites (Kennedy, 1997, p. 77). They further argue that unlike blacks the whites are executed more quickly because the crimes they commiteed were heinous. Hence, little time was consumed in listening to appeals. This suggests that unlike blacks, in cases with white defendants' there is a little element of doubt about the guilt and the crime committed by the respective white defendant.