Friday, September 23, 2011

Land of the Free? A Review of the Death Penalty in the United States

In the wake of Georgia's execution of Troy Davis, America has turned its focus once again to the debate surrounding the inclusion of the death penalty in our criminal justice system.  Therefore, we thought this would be an appropriate time to take a detailed look at the death penalty.  Of the 50 states in our country, 34 of them allow the death penalty while 16 of them (plus D.C.) have abolished it.  Since 1976, the United States has executed 1,269 convicts who were on death row.  Of those 1,269 executions, 1,042 (82%) of them were administered in the South and 475 of them (37%) were administered by the State of Texas alone.  Although Blacks only make up 12% of the United States population, they made up 35% of all of the nation's executions since 1976 and they make up 42% of all inmates currently awaiting execution on death row today.  Of the 25 states with the highest murder rates in the country, 20 of them allow the death penalty; of the 10 states with the highest murder rates in the country (1. Louisiana, 2. Maryland, 3. Missouri, 4. Mississippi, 5. New Mexico, 6. Arizona, 7. South Carolina, 8. Nevada, 9. Georgia, 10. Alabama) all but New Mexico use the death penalty.  At the other end of the spectrum, out of the 25 states with the lowest murder rates in the country, only 14 use the death penalty.  Last but not least, 130 people have been released from death row since 1973 where evidence was later found after their trials which proved their innocence.   Similarly, since the introduction of DNA evidence testing in 1989 there have been 273 people released from prison for crimes that they did not commit.  Of those 273 people, 166 (61%) were Black.  It is notable to observe that of those 273 people, 17 were on death row awaiting the death penalty.  Now that we've provided you with the facts, the members of The Urban Politico will weigh in with our thoughts after the jump.

I am not bothered by the death penalty in the abstract. A life for a life is a pretty simple thing to understand.
Of course you can put someone into prison for the rest of their life. But that lifer may still enjoy a hot shower, food, reading a good book, playing a chess game or any number of other things that his victim won't get. That doesn't seem right.
But when you get down to specifics it's a bit more problematic. Most murderers don't get the death penalty-even in states that have the death penalty. It's up to the prosecutor and how s/he feels about death penalty cases and the gruesomeness of the crime or innocence of the victim. The victim is equally dead no matter if it was a run of the mill driveby or some extended sadistic torture murder during a home invasion.
Some say that's too much power to give to a prosecutor. Not much liking prosecutors anyway I can sympathize with that point of view but they are a necessary evil.
There are some human beings who commit acts that simply mark them off as beyond hope in my view. When this is the case, get rid of them-and not 25 years after the fact either.
But I think the death penalty ought to be reserved for those cases where either the act is beyond belief -killing a child or where there is no doubt about who did it and the trial is just a formality -ie. Colin Ferguson, Nidal Hassan, etc. When there is doubt, or even the possibility of doubt, use life imprisonment. That is what should have occurred with Troy Davis-in whose case there were huge levels of doubt. The Davis case once again shows how important proper legal protection is to have at the outset and how much $$$ plays a part. If you're wealthy you can hire the best lawyers, the best investigators, the best jury consultants. You can hire people plugged into the local judiciary/political system that can help influence your case in and out of the courtroom. Davis didn't have any of that. And he was a black man accused of killing a white police officer.

The Storyteller:
The death penalty. I've never really thought much about it until this case. I knew it existed. I knew it existed for a reason. But beyond that I remained mostly non-plussed. 
The death penalty is useful for cases like the Petit murders in Connecticut, serial killers such as BTK or the DC Sniper, domestic terrorists like Timothy McVeigh, and blood thirsty white supremacists such as Lawrence Brewer who was also executed last night. In those cases where guilt is proven beyond a shadow of a doubt with multiple sources of hard forensic evidence or better yet surveillance tape the death penalty is fine. We all are going to die and some people deserve to die sooner. This hardline stance when there isn't a shadow of a doubt doesn't bother me at all. 
What does bother me are cases like Troy Davis or even Casey Anthony had she been convicted. There are too many other plausible scenarios, too many unknowns that make my hardline stance moot null and void. But then that could be in any case especially those 20 or 30 years old where forensic technology wasn't the best and DNA testing was a new phenomenon not a required prosecutorial tool.
At my very first station in Amarillo, Texas there were two high profile cases. In one of them the suspect, Levi King pleaded guilty to first degree murder charge. His trial quickly turned into whether or not he should get the death penalty or life in prison. He ended up getting life in prison. The other case was that of Hank Skinner accused of killing his girlfriend and her children. He was on death row awaiting to be executed. We did a jailhouse interview the night before his execution when his appeal went through. The Supreme Court ruled that DNA evidence, Skinner says will exonerate him, should be tested.
In this case the system worked and the death penalty was avoided to further test evidence that will either prove Skinner guilty beyond a shadow of a doubt or innocent. Troy Davis did not receive the same opportunity and for that reason and that reason only I could support making the death penalty unconstitutional under the the eighth amendment barring against cruel and unusual punishment. 
It is cruel and unusual to kill any person if you don't know they are 100 percent guilty. 
With a system that works more on emotion and persuasion than intellect and factual evidence, more often than not we will see more people falling through the cracks into the cesspool of the prison system than we see justice actually being served.

Grand Central:
The Death Penalty has weighed on my mind heavily over the last week. I can recall a discussion in my high school government class regarding the death penalty where a close friend of mine raised his hand and said "yes I support it, eye for an eye, kill them all, plus it saves us money." I remember being blown away by his statement and thinking "but what if the person is innocent?" As our discussion furthered, I formulated my opinion around the death penalty and decided it should only be used in cases where the evidence is rock solid and the crime is heinous. I carried this view until last year.
As a member of the Social Justice Committee of my church, I participate in several activities throughout the year to strengthen the parish's ties to community issues. The social issue of focus for 2010-2011 was capital punishment in the United States. Each year, we are introduced to our issue through a fact finding process. An organization connects with us and they literally dump knowledge on us regarding the issue. The knowledge dump on Capital Punishment was pretty unforgettable. 
The United States ranks in the top 5 of nations who carry out executions. We share the likes with North Korea, China, Iran and Yemen. The top 5 states in the US for executions since 1976 are Texas (475), Virginia (109),  Oklahoma (96),  Florida (69),  Missouri (68). I don't want the United States sitting in any categories with the likes of China, Iran, North Korea or Yemen and I don't want to see a single state more than triple another state for executing citizens. The State of Texas exercises no discretion and has executed prisoners who suffer from an Intellectual Disability.  Upon entering office in 2001, Texas Governor Rick Perry vetoed a bill banning the executions of Intellectually Disabled prisoners. Perry has now executed more prisoners than any other US Governor. There is also a myth about costs that must debunked. Many people think that it cost less to execute a prisoner than to hand them a  life sentence without the option for parole. This is false. It actually costs for than double. So saving money can no longer be an excuse to kill prisoners. 
In the case of Troy Davis, many innocent prisoners have come before him and unfortunately more innocents will come after him and will continue to be executed. This is an absolute travesty. I cannot support the death penalty for any reason. I've never been subjected to the loss of a family member or anyone close to me to heinous crimes, so I can't judge my feelings or thoughts about the death penalty if ever put into that situation. For now though, I am against the death penalty for any reason.

The Janitor:
I never really had an opinion about the death penalty one way or the other until I got to law school.  Once there, it didn't take very long for me to soon discover that the death penalty is far from the noble institution of justice that our country has made it out to be.  A few weeks into my first year Criminal Law class, I came across a case that forever changed my view of the death penalty: McClesky v. Kemp, 481 U.S. 279 (1987).  
Very briefly, McClesky v. Kemp was a landmark Supreme Court case where the defendant, a Black man accused of murdering a White police officer in Georgia, argued that the death penalty is unconstitutional because it is applied unequally between Blacks and Whites in this country.  The crazy part is - he was right!  As proof of this claim, he introduced to the Court the infamous "Baldus Study" conducted by Professor David Baldus of the University of Iowa School of Law.  Controlling for over 230 non-racial variables, the study provided conclusive evidence that:
  • In cases where a White defendant was accused of killing a White victim, 8% received the death penalty
  • In cases where a Black defendant was accused of killing a Black victim, 1% received the death penalty
  • In cases where a White defendant was accused of killing a Black victim, 3% received the death penalty
  • In cases where a Black defendant was accused of killing a White victim, 22% received the death penalty
This means that even in cases where the defendant and victim are of the same race, a higher premium is placed on the life of a White victim than it is for a Black victim.  Even more disturbing, the report concluded that, regardless of the race of the accused, a person who kills a White victim is 4.3 times more likely to receive the death penalty than a person who kills a Black victim.
And what's even more jacked up than the findings of the study is that even after hearing this evidence, the Supreme Court basically just shrugged its shoulders and said "yeah we see the racism here but it's not our problem. Case Denied."  Warren McCleskey was executed by the State of Georgia 4 years later.   Justice Lewis Powell wrote the majority opinion in McClesky v. Kemp.  The decision must have haunted him because years later, after he had retired, when asked was there any case he wished he could go back in time and change he said "Yes, McClesky v. Kemp."
Which brings me to my first beef with the death penalty: all sales are FINAL!  There are no take-backs, no do-overs, no re-do's.  Once you kill a person, that's it!  130 people have been released from death row for crimes that they didn't commit but they were only released AFTER evidence was miraculously found later which proved "beyond a reasonable doubt" that they didn't do it.  My question is, what if that evidence had never magically appeared? 
Another beef I have about the death penalty is that the criminal appeals process is too damn hard.  I had the fortunate/unfortunate opportunity to witness this first hand when I worked pro bono on a death penalty appeal for a Black man convicted of murdering a White store clerk near Birmingham, Alabama.  During an appeal, many people think that you get to retry the entire case over again.  This is not the case.  On appeal, the only thing that the appellate or supreme court is looking at is whether the correct legal procedure was followed during your trial.  Your actual innocence is irrelevant, which has to be one of the biggest ironies about our criminal justice system.  And as if the appellate process wasn't hard enough already, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which, long story short, makes it EXTREMELY difficult to appeal your state conviction to a federal court.
To bring it back full circle to McClesky v. Kemp, my final beef with the death penalty in this country is that it is clearly not being administered equally among racial groups.  If you want to be a bigot on your own time, then so be it.  More power to you.  But don't be a bigot when somebody's life is on the line!  I know its unrealistic to ask people to get rid of their racial biases. However, since those biases are clearly having an unfair impact on who gets put to death in this country, the death penalty needs to be removed from the criminal justice system's toolbox. As the late Justice Blackmun once said: "the death penalty must be imposed fairly, and with reasonable consistency, or not at all.Callins v. Collins, 510 U.S. 1141 (1994) (J. Blackmun dissenting).
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