Chapter 2: Is Capital Punishment Administered Fairly?
The Death Penalty and Fairness: An Overview
It has been more than three years since Rolando Cruz was cleared of the charges that landed him on death row, but there’s still bitterness in his voice. “I did 12 years, three months and three days,” he told a recent conference on capital punishment. “They did kill me. I am who I am now because this is who they made.”
Cruz and another man, Alejandro Hernandez, were sentenced to death for the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville, Ill. It was the kind of high-profile crime that prompts communities to demand quick action by law enforcement officers. DuPage County authorities complied by charging Cruz and Hernandez with Jeanine’s murder.
Both men were tried, convicted and sentenced to death in 1985. Their convictions were based largely on the testimony of jailhouse informants and a deputy sheriff who said Cruz’s description of a dream included details about the murder that only the killer would have known.
In 1995, after more than 10 years on death row, Cruz and Hernandez were released from prison after DNA testing proved that another man had raped Jeanine. At the time of the murder, Brian Dugan, a repeat sex offender and confessed murderer, had told authorities that he alone had committed the crime—a fact that the Cruz and Hernandez juries weren’t told. Three prosecutors and four law enforcement officers have since been charged with obstruction of justice for concealing...
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Capital Punishment Is Applied Unfairly
Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin or, more often, the color of the victim’s skin. Murder—always tragic—seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.
The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.
The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most—in matters of life and death. The factors that determine who will live and who will die—race, sex, and geography—are the very same ones that blind justice was meant...
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Racism Influences Death- Sentence Decisions
“The evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black.”
Surprisingly, those words were written by former U.S. Supreme Court Justice William Brennan when he criticized the Court majority for continuing to uphold a “capital-sentencing system in which race more likely than not plays a role. . . .”
Racism: it’s a nasty word, and many people would prefer to look the other way and deny its existence. But not only does it exist, it exists in one of the most sensitive areas of our judicial system—capital punishment.
The question of racial discrimination in capital sentencing procedures has prompted an ongoing debate. Retired U.S. Supreme Court Justice Harry Blackmun deplored our country’s continued use of the death penalty, stating: “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.” He further stated, “It surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all.”
There is much evidence to show that race is an important factor in determining who will be sentenced to die for a crime and who will receive a lesser punishment for the same crime. Extensive research on capital...
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The Litigation Process for Capital Defendants Is Unfair
The federal Anti-Terrorism and Effective Death Penalty Act, enacted in 1996, includes provisions that severely undermine death row inmates’ ability to use federal habeas corpus procedures to challenge their unconstitutional convictions or death sentences. [These procedures allow convicts to have their cases reviewed in a federal court.] Death row inmates have been subjected to numerous due process violations, particularly in state courts, in the litigation and appeal of capital punishment cases. The new limitations on the habeas corpus process likely will preclude the federal courts from considering many meritorious claims of due process violations.
In light of the fact that 40 percent of death row inmates’ federal habeas corpus challenges have succeeded because state courts have failed to rectify due process violations in death penalty cases, and in light of the new significant restrictions on federal court review of such claims, an urgent situation exists in the litigation of capital cases.
The American Bar Association (ABA), as an organization of lawyers with particular expertise on due process and litigation issues, has an obligation to address the problem now. The urgency is all the greater because of Congress’ complete defunding in 1996 of the post-conviction defender organizations that had mentored lawyers handling federal habeas cases and had handled many such cases themselves. The ABA has long...
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Reforms Are Needed to Prevent the Execution of Innocent People
By the time you are reading this, the United States has probably executed its five hundredth prisoner since 1976. If not, it’s just a matter of days before Oklahoma, Texas, South Carolina or Arkansas straps Tuan Nguyen, Joseph Faulder, Joe Truesdale, Robert Robbins or another of the nation’s more than 3,500 death row inmates onto the gurney or into the electric chair and kills them.
Number 500 easily could have been any one of the 29 former death row inmates who nervously lined up backstage at the National Conference of Wrongful Convictions and the Death Penalty on Nov. 14, 1998. Each of these men and women were once sentenced to die; some came within hours of being executed— all were innocent. They each spent years, and sometimes decades, on death row for crimes they didn’t commit. Only with a stroke of lottery-like luck, divine intervention and a few good lawyers were they freed. One by one, they marched onto the stage, stepped up to the microphone and told the crowd, “If the state had gotten its way, I’d be dead today.”
More than 1,000 lawyers, law students, scholars, investigators, journalists and people in “Free Mumia” T-shirts, gathered to hear from the wrongfully convicted at Northwestern University Law School in Chicago for the three-day conference, one of the most important, uplifting and well-publicized anti-death penalty events of the decade. Conference organizers hoped to present the face of “the real death...
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Claims About the Unfairness of Capital Punishment Are Unfounded
The capital punishment debate is heating up. Because the Bronx District Attorney has vowed never to seek death no matter how heinous the offense, the Governor of New York recently barred him from trying a carjacker who killed a policeman. . . . Not that the average person cares what the American Philosophical Association is up to, but its actions are a good guide to liberal-elite thinking, and I am told it is ready to condemn “legal murder.” (One of America’s leading abolitionists is a philosophy professor, Hugo Bedau.) It’s a good time for friends of liberty to clarify their view of the question.
The State Is Entitled to Kill
As a rule, libertarians mistrust capital punishment because they don’t want to cede government the power of life and death. However, once the state is granted the right to administer lesser punishments, it cannot be denied the right to kill. Consider that John Locke, nobody’s idea of bloodthirsty, defined “political power” as “a right of making laws with penalties of death and, consequently, all less penalties.” Why did Locke take infliction of death to be fundamental? Well, the state must be able to enforce whatever it commands, or it is a state in name only. The question then becomes how far it may go to overcome resistance.
If the state has no right to kill, and can press lawbreakers to obey it up to the point of lethality but no further, a lawbreaker can defy the state by resisting so...
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Capital Punishment Is Not Applied Unfairly to Blacks
Death penalty opponents frequently argue that capital punishment is racist, meted out disproportionately to blacks, especially blacks who kill whites. If there is any city where that argument ought to hold sway, it is Washington, D.C., an overwhelmingly black community that is acutely sensitive to questions of racial justice.
Indeed, until recently, Washingtonians were solidly against the death penalty. A 1992 ballot measure to establish capital punishment in the district was crushed by a ratio of 2 to 1. Among the leading opponents was Marion Barry, the once and future mayor, who forested D.C. neighborhoods with signs proclaiming, “Thou Shalt Not Kill.”
But five years later, Washington residents—particularly its black residents, who comprise more than two-thirds of the city’s population—are having second thoughts.
According to a new Washington Post poll, 52 percent of D.C. voters now agree that murderers should be executed, and 59 percent support the death penalty for those convicted of killing police officers. Among African-Americans, the change of heart is especially pronounced: 55 percent of black D.C. residents polled favor the death penalty generally, and 64 percent—nearly 2 out of 3—favor it for those who kill police. Legislation to authorize capital punishment has been proposed anew, and one of its key backers is—Marion Barry.
This turnaround is remarkable. Washington’s black citizens...
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Unfair Application of Capital Punishment Does Not Justify Abolishing It
Let us examine some of the major objections to capital punishment, as well as the retentionist’s responses to those objections.
1. Objection: Capital punishment is a morally unacceptable thirst for revenge. As former British Prime Minister Edward Heath put it,
The real point which is emphasized to me by many constituents is that even if the death penalty is not a deterrent, murderers deserve to die. This is the question of revenge. Again, this will be a matter of moral judgment for each of us. I do not believe in revenge. If I were to become the victim of terrorists, I would not wish them to be hanged or killed in any other way for revenge. All that would do is deepen the bitterness which already tragically exists in the conflicts we experience in society, particularly in Northern Ireland.
Response: Retributivism is not the same thing as revenge, although the two attitudes are often intermixed in practice. Revenge is a personal response to a perpetrator for an injury. Retribution is an impartial and impersonal response to an offender for an offense done against someone. You cannot desire revenge for the harm of someone to whom you are indifferent. Revenge always involves personal concern for the victim. Retribution is not personal but based on objective factors: the criminal has deliberately harmed an innocent party and so deserves to be punished, whether I wish it or not. I...
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The Death Penalty Should Be Carried Out More Promptly
The co-perpetrator of the worst terrorist attack in American history; a woman convicted of pick-axing two sleeping people to death; a cold-blooded mailbomber on trial for two murders and two maimings: These are some of the people who have convinced sympathetic listeners that they ought to escape the maximum legal punishment for their crimes. The death penalty is unequivocally constitutional. It is supported by a crushing majority of the American people. Moralists from the authors of the Bible to John Stuart Mill have regarded it as just. And yet somehow Americans encounter the most enormous difficulty persuading their justice system to put it into effect.
Every year the newspapers run stories about the rapid rise in criminal executions in the United States. Spread over half a dozen columns, illustrated with charts that show death sentences rocketing upward like the Dow Jones industrial average, they present an image of a country grimly bent on snuffing out as many lives as possible. The Washington Post offered a fine example of the genre on December 15, 1997 in a story observing that the number of executions nationally hit a four-decade high in 1997 and that Virginia executed more people than it had in any year since 1909. “I think the death machinery has kicked into high gear,” the Post quoted the director of the American Civil Liberties Union’s Capital Punishment Project as saying.
You’d think that the whole United States was...
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