Death Penalty the United States

Death Penalty

The United States is one of only a handful of developed nations that still readily imposes death upon those found guilty of a crime (Kurtis 200). Killing as a function of the state raises a number of moral questions, and makes a number of moral assumptions. Aside from the question as to whether the state is justified in killing at all, is the concern for equal justice for individuals convicted of capital murder. In other words, there is the possibility that certain subsets of the American population are sentenced to death more readily for the same crimes. If sentencing of the death penalty is unfair or biased, it questions the legitimacy of death as a form of justice.

By adopting the death penalty, in many ways, the United States' public is identifying the justice system as an infallible device -- a mechanism that is not capable of errors, imperfections, or inequity. However, the human component of the legal system demands that mistakes are sometimes made, and that bias does exist; these aspects of the system can never be fully eliminated, just as they can never be fully eliminated from the human psyche. In short, prejudice based upon race is central to the manner in which Americans think and behave, and accordingly, it is prevalent in the criminal justice system. This fact cannot be refuted on any justifiable grounds. Consequently, the system routinely criminalizes and marginalizes specific groups of the American public based upon their ethnic origin.

The death penalty does much evil for the supposed justice it deals. Innocent people have been placed on death row and innocent people have been put to death. Additionally, in many states an undue percentage of African-Americans have been sentenced to death. "Pennsylvania has the nation's fourth largest death row, with 245 inmates currently under sentence of death in the Commonwealth. Although Pennsylvania's minority population is 11%, two thirds (68%) of the inmates on death row are minorities." (U.S. Bureau of Criminal Justice Statistics 1). This fact is mirrored by a number of other states with the death penalty on the books. Despite the fact that courts around the country are dedicated to the identification and elimination of discrimination, specifically concerning the death penalty, little has been done to conduct comprehensive studies of capital charging and sentencing (U.S. Bureau of Criminal Justice Statistics 1). Of those that have been conducted, the results have been sobering. Minorities -- and African-Americans in particular -- simply by being nonwhite, have far greater chances of being sentenced to death.

Generally speaking, the death penalty is administered in an arbitrary fashion. Factors that should play no part in the administration of justice, in fact, play significant roles. In 1972, when the Supreme Court ruled that capital punishment was unconstitutional, they did so specifically on these grounds:

The decisive ground of the 1972 Furman case anti-capital punishment ruling -- the ground persuasive to the marginal justices needed for a majority -- was that, out of a large number of persons 'eligible' in law for the punishment of death, a few were selected as if at random, by no stated (or perhaps statable) criteria, while all the rest suffered the lesser penalty of imprisonment." (Baird 161).

However, in 1976 with the Gregg vs. Georgia ruling, the Court concluded that Georgia had taken sufficient measures to rectify this problem and could, therefore, administer the death penalty judiciously. Nevertheless, it has become apparent to many studying criminal justice that bias based upon race and economic conditions continue to plague the system, and are far more difficult to eliminate than many previously thought. Professor David C. Baldus of the University of Iowa Law School and his colleague, George Woodworth, professor of statistics conducted a number of studies in 2000 concerning Pennsylvania's criminal justice system. Subsequently,

Professor Baldus found substantial race-of-defendant effects in Philadelphia County. He linked the impact of being African-American to be saddled with an extra aggravating factor, that is, on average, being African-American increased the chance of a defendant receiving a death sentence to the same degree that the presence of the aggravating circumstance of 'torture' or 'grave risk of death' increased the chance of a non-African-American getting a death sentence." (U.S. Bureau of Criminal Justice Statistics 1).

Consequently, as many as one third of the African-Americans on death row in Pennsylvania would have received life sentences had they been white. So, the arbitrary nature of the death penalty generally results in significant effects-based entirely upon race. Having eliminated all other possible factors, studies like the one conducted by Baldus and Woodworth are particularly powerful and revealing.

The unfortunate thing about the findings of Baldus and others like him is that they are not necessarily surprising. Societies in general -- not just the United States -- have routinely used execution as a means to eliminate social deviants of any kind; not simply criminals. "The death penalty's long history is marked with prejudice, religious persecution, and at times, superstition." (Bessler 50). Historically, subsets of the population who are looked down upon by the majority have been the victims of state sanctioned killing. The fact that racism is still a prevalent and powerful force in the United States automatically makes minorities a threatened breed.

Implementation of the death penalty may, in many cases, be arbitrary; this raises the question as to whether or not arbitrary laws are truly immoral or unjustifiable. Many individuals acknowledge the random nature of the death penalty but still maintain that it has a place in our society. Essentially, they argue that these external factors should be eliminated, but they are not sufficient to condemn the practice of capital punishment. Writer and staunch proponent of the death penalty, Ernest van den Haag contends,

Justice requires punishing the guilty -- as many of the guilty as possible, even if only some can be punished -- and sparing the innocent -- as many of the innocent as possible, even if not all are spared. It would surely be wrong to treat everybody with equal injustice in preference to meting out justice at least to some.... If the death penalty is morally just, however discriminatorily applied to only some of the guilty, it does remain just in each case in which it is applied." (Baird 163).

Arguments like this one center on the notion that the demands of justice do not necessarily parallel the demands of equality. From a logistic standpoint, justice can never fully live up to the demands of equality. Accordingly, individual punishments rely upon guilt alone and broader social ramifications are irrelevant to its administration. If the people convicted of a crime are indeed guilty and deserve their punishments, then the penalties are appropriate. On the surface this appears to be a compelling argument, and it is certainly the perspective held by a large number of Americans. They admit the shortcomings of the justice system, but maintain that proper judicial procedures should produce suitable outcomes on a case by case basis. Overall "we should do justice wherever we can in individual cases and that failure to do justice in all cases is no reason to withhold punishment or reward from individuals." (Baird 164).

However, this perspective overlooks the instances in which these failures in justice adhere to distinct trends. Although the implementation of the death penalty is largely arbitrary from a legal standpoint, it is very decidedly methodical in the social sense. A counterexample can be illustrated by considering speeding. Legally, every speeder deserves a speeding ticket but physically dispensing all of these tickets is realistically impossible. Obviously, only a fraction of speeders can receive tickets -- but which fraction? Police officers could choose individuals completely at random or they could choose to ticket individuals who speed by a great deal. Also, they could choose only to ticket those who drive Volvos. The third option is decidedly arbitrary but obviously unjust.

Analogous to this example is the issue of race in the death penalty. Supreme Court Justice William Douglas recognized this during the 1972 Furman vs. Georgia case. "Douglas concluded that a law discriminatory in its application 'has no more sanctity than a law that, for instance, said that blacks, those who never went beyond the fifth grade in school, those who made less than $3,000 a year... should be the only people executed.'" (Bessler 56). Although punishment may be justifiable in individual cases, the discriminatory manner in which it is dealt makes Douglas' conclusion implicit. By admitting that inequity is inherent in the justice system but continuing the practice of the death penalty, Americans are essentially endorsing a rule to disproportionately execute minorities.

Proponents of the death penalty might scoff at such an argument, and question whether it is possible to administer any sort of justice in the face of racial discrimination. After all, the argument could be applied to speeding tickets but few would suggest that its implications demand that speeding tickets be abolished. Since an undue number of racial minorities are pulled over by police officers it makes endorsing speeding tickets tantamount to endorsing a rule to ticket only blacks. 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.