Capital games

 

The governor of Illinois has declared a temporary halt to executions in order to more fully investigate possible errors in the application of the death penalty in his state.  How Ahuman@ of him to do this!  He’s not the only politician who has expressed an interest in the issue of executing innocent people, of course. Rightly so, since in American history there have been about 400 defendants sentenced to death that have turned out to be innocent, with an estimated two dozen who were actually executed - and many more who spent years in prison. Not surprisingly, a disproportionate number have been African-Americans and other minorities. But this recent tendency to review death penalty cases for possible errors misses an important point, namely, whether or not the death penalty in and of itself is inhumane and really necessary as a response to homicide.  If, after careful review, we find some errors and correct them (e.g., by releasing some outright, commuting others to life), we then proceed as usual, is the real problem corrected?  Hardly.  We have already made executions more Ahumane@ by using lethal injection.  I suppose that Hitler could have made the gassing of Jews more Aefficient@ and more Ahumane@ in some way.  But this is the way we do these sorts of things in this country.

Another point that is missing from the recent debate over the death penalty is not just the fact that it does not act as a deterrent - murder rates fluctuate regardless of the application of the death penalty, as so many studies (dating back more than 50 years) have shown.  What is often missing from the debate is that, as a popular saying goes, Athose without capital get capital punishment.@  In other words, the poorest of the poor get the death penalty.  Let=s look more closely at the death penalty in America.

 

 

Capital punishment is one of the oldest forms of punishment, dating back several thousands of years.  It has had a long and turbulent history in America. We continue to use the death penalty more than any other democratic nation.  In fact, the United States stands almost alone in the world among those nations that execute people whose crimes were committed as juveniles (along with Iran, Pakistan, Nigeria, Yemen, and Saudi Arabia).

Our use of the death penalty has gone through periods in which most states either abolished it altogether or never used it and periods in which it was commonly used.  Two landmark Supreme Court decisions in the 1970s rekindled the controversy surrounding the death penalty: Furman v. Georgia (1972) and Gregg v. Georgia (1976).  After these two decisions were handed down, the use of the death penalty sentences increased dramatically. 

In Furman v. Georgia there were nine separate opinions, one from each of the justices.  Overall the Court ruled that the death penalty as it was administered constituted cruel and unusual punishment, in violation with the Eighth and Fourteenth amendments of the Constitution.  The Court did not rule that the death penalty in and of itself constituted cruel and unusual punishment.  The response by the states was almost immediate. Appeals began flowing into the court system and within four years of Furman the Supreme Court made perhaps its most significant ruling on the matter.

In the case of Gregg v. Georgia the Court upheld the Georgia statute calling for the death penalty for murder.  The Court ruled: AA punishment must not be excessive, but this does not mean that the states must seek the minimal standards available.  The imposition of the death penalty for the crime of murder does not violate the Constitution.@

After a de facto abolition of the death penalty, it was reactivated in 1977 with the execution of Gary Gilmore by a firing squad in Utah (this state is the only one which allows the prisoner a choice between the firing squad or hanging).  Currently, 38 states plus the federal government have the death penalty.  As of September 1, 1999, there were 3,625 under the penalty of death, awaiting their appeals, with California leading the way with 551; Texas was second with 498, while Florida was third with 393 (together these three accounted for 39%). Nevada has 87 (13^th highest). Since 1977, a total of 616 have been executed in this country.  The Southern states have led the way, having executed 498 (81%); Texas has led the way with a whopping one-third (208)of the total! Nevada has executed only 8.  So far this year, a total of 18 have been executed (as of February 25).  If this rate continues (about 12 per month), then more will be executed this year than any other year since 1977 (the current high is 98, which occurred last year).

It is extremely rare for women to be executed.  Texas just executed a woman on February 24 (the second in two years for that state), bringing the total to four women executed since 1977 (the other two were in North Carolina and Florida).  As of September 1, 1999, there were 50 women on death row (559 women have been executed in all of U.S. history, less than 3% of the total of 19,200).

 

If you=re black, you=re “dead man walking”

Race figures prominently in the imposition of the death penalty. Since the death penalty was reinstated, 35% of those executed have been black.  Out of the 4,172 prisoners executed between 1930 and 1995, over half (52%) were African-Americans.  Between 1930 and 1972 a total of 455 were executed for rape, and 89 percent were African-Americans. The latest figures show that blacks constitute almost half (47%) of those on death row (with Hispanics another 7% and other races 2%). Even the race of the victims plays an important role.  For instance, 83 percent of the victims of those executed were white, whereas about 50 percent of the victims of all homicides were white.  Several studies have noted that there are vast discrepancies in the application of the death penalty according to the race of the victim and the race of the offender.  Where the victim is white and the offender is African-American,  the death penalty will be given about 35 percent of the time, compared to only 14 percent when the relationship is reversed (i.e., African-American victim and white offender);  the death penalty will be given in 22 percent of the cases where whites kill whites and only 6 percent of the cases where African-Americans kill African-Americans.  One study found that the race of the victim played a key role in the prosecutor's decision to seek the death penalty and a jury's decision to impose it (these researchers, just to be overly cautious, controlled for 200 variables and still found race to be the main factor). 

And it is not as if these findings are new.  Almost 40 years ago a group of researchers led by the famous American criminologist Marvin Wolfgang, studied 439 cases of men sentenced to death in Pennsylvania for murder between 1914 and 1958.  They found that 20 percent of the whites had their sentences commuted to life imprisonment, whereas only 11 percent of the blacks did.

Studies of rape have also found a strong relationship between the race of the victim and the imposition of the death penalty. A study of 3,000 rape convictions in eleven southern states between 1945 and 1965 found that of some 1,200 cases, nearly seven times as many Blacks were sentenced to death as whites. This same study also found that 36 percent of the blacks who raped whites were sentenced to death, while all other racial combinations resulted in only 2 percent being sentenced to death. This is partly because of the fact that the alleged victims were white, for historically, in the South, the mere accusation that a black man raped a white woman was enough to convict.

 

The McCleskey Case: “Discrimination is inevitable”

Many death penalty studies gained prominence in one of the most significant Supreme Court cases concerning the death penalty, that of McCleskey v. Kemp in 1987.  It was here that research concerning the race of the victim was first cited in a major Supreme Court case.  Not surprisingly the case originated in Georgia, like Furman and Gregg. The defendant was Warren McCleskey, an African-American, who was convicted of killing a white police officer.  Part of the defense strategy was to use a now famous study by university researcher David Baldus and his colleagues.  Despite the overwhelming evidence in support of the importance of the race of the victim, the Supreme Court rejected the appeal.  While accepting the validity of the Baldus study, the Court nevertheless ruled that, regardless of statistical correlations, in the case of McCleskey, the Court noted that there was no evidence that "any of the decision makers in McCleskey's case acted with discriminatory purpose."  The Court also suggested that at best, all that could be shown was a "discrepancy that appears to correlate with race."  An understatement if there ever was one! 

What is perhaps most interesting about this ruling is that the Court appeared to be afraid of what the "logical conclusions" of such evidence might be.  Justice Powell, writing for the majority, noted that such evidence "throws into serious question the principles that underlie our entire criminal justice system...@  Continuing, Powell noted that Aif we accepted McCleskey's claim that racial bias impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalty."  Not surprisingly, the ruling came in for immediate attacks, including four dissenting justices (Blackmun, Marshall, Brenan and Stevens).  Heaven forbid, they suggested, that others may challenge such obvious biases, "even women" (wrote one justice).  One scholar  noted sarcastically that concluding that "at most" there appears to be a "discrepancy" is like saying that "at most" the many studies on lung cancer "indicate a discrepancy that appears to correlate with smoking."  Most of the critics voiced the opinion that this ruling sent a message that racial bias is perfectly constitutional.  McCleskey was eventually executed in the electric chair on September 26, 1991.  The famous Justice Thurgood Marshall, who joined two other justices in a dissent for a stay of execution, stated that it appears that "the court values expediency over human life..."

George Washington University law professor David Cole (in his excellent book No Equal Justice)  has argued that it would be nearly impossible to prove that a prosecutor and a jury have imposed the death penalty in a particular case because of the defendant's race.  He notes that there are "long-standing rules" that prohibit defendants from obtaining discovery from the prosecution and therefore "unless the prosecutor admits to acting for racially biased reasons, it will be difficult to pin discrimination on the prosecutor."  Similarly in the case of jurors.  In short, says Cole, "defendants are precluded from discovering evidence of intent from the two actors whose discriminatory intent the Mc Cleskey Court required them to establish."

Subsequent cases on this issue had almost identical results.  In one such case, that of Dobbs v. Zant (a 1989 case in, naturally, Georgia!), the Court rejected the appeal even though several jurors referred to African-Americans as "coloreds" and two admitted using "nigger" in their conversations.  Even the defense attorney (a court-appointed attorney) admitted using "nigger" and believed that African-Americans make good basketball players, but not teachers!

In other words, the Supreme Court has concluded that "discrimination is inevitable," a "natural by-product of discretion" and hence "constitutionally acceptable."  So there you have it, the highest court in the country that espouses "equal justice for all" telling us, in effect, that racial bias is supported by the United States Constitution!  Some members of Congress responded to the McCleskey decision by adding a "Racial Justice Act" to the Omnibus Crime Bill of 1994.  By a slim majority, the House voted for this provision, which would have allowed those on death row to challenge their sentence based upon statistical evidence of race discrimination in capital cases, as had Mc Cleskey.  But it was defeated in the Senate and dropped from the 1994 bill.  Senator Orin Hatch (R-Utah) remarked, quite candidly, that this "so-called Racial Justice Act has nothing to do with racial justice and everything to do with abolishing the death penalty...It would convert every death penalty case into a massive sideshow of statistical squabbles and quota quarrels."  What more can be said, given this kind of "worse-case scenario" logic!

Meanwhile, the use of the death penalty has increased, as appeals have declined and the process from conviction to execution has been stepped up.  More are being executed every day.  Americans have always seemed to believe that Ait=s a good day for a hanging.@ A few states, such as Texas, have turned this into a "sideshow" (to use Hatch's terminology) with crowds of people outside applauding as soon as the defendant is executed (and, as always, a crowd on the other side protesting). African-Americans and other minorities continue to receive the death penalty in numbers far greater than their proportion in the general population.  Almost without exception, the executed are drawn from the ranks of the "dangerous classes."  Indeed, death is the ultimate penalty for this class.   

 

Those with no capital get punishment

 

In the typical American way, the governor of Illinois, among others (like George W. Bush of Texas and President Bill Clinton), wants to Aexpedite@ the execution process, make it more Aefficient@ by cutting down on Afrivolous@ appeals. (We Americans are always in a hurry. We want things done yesterday!  Forget about Adelayed gratification@!) Perhaps one of the reasons why it is mostly the poor who get executed has to do with the fact that they cannot afford to pay for adequate counsel.  Now we get to the hear of the matter.

In theory, all defendants, rich and poor alike, have a guarantee of counsel. But the real issue is the quality of counsel and the question of whether or not "justice" is being served. Can the average defendant receive the best counsel, given the bureaucratic nature of the court system?  Can every defendant get the kind of counsel that O.J. Simpson had? Obviously not, given the degree of inequality existing in our society. Do public defenders and other lawyers for the poor provide the same kind of defense that a rich man would receive from a retained lawyer, as was the case for Simpson? Given the fact that the majority of those in prison come from poor backgrounds and have had attorneys poorly trained for death penalty cases, the answer to these questions has to be no.

Soon after the famous Gideon decision in 1963 (the decision that theoretically guaranteed counsel to all defendants who might go to prison) both state and federal courts began making some policy changes concerning the effectiveness of counsel issue, one of which included the adoption of what became known as the mockery of justice standard.  This standard means that "only circumstances so shocking that they reduce the trial to a farce satisfied defendants' claim of ineffective counsel." However, critics immediately charged that this was too vague, subjective and narrow to be of any practical use. Under this guideline even defense lawyers "who appeared in court drunk did not violate this standard."  The courts have even failed to find ineffectiveness when the defense counsel used heroin and cocaine during the trial or when an attorney on a capital punishment case could not name a single Supreme Court decision concerning the death penalty, and even when the attorney was suffering from Alzheimer's disease!

Even though having an attorney is a right at each of the "critical stages" of the criminal justice process, most defendants do not have attorneys to call upon immediately following arrest. What happens in the majority of cases is that counsel is assigned by the court (or the case assigned to the public defender's office) during the initial court appearance.  It is important to note that the average defendant is allowed just one lawyer rather than an entire team as is the case during "celebrity" cases like Simpson (not to mention the dozens of investigators, expert witnesses, etc.).

Under the assigned counsel system a court appoints a specific attorney to handle a case. This is common throughout America, especially in large urban courts where about three out of every four defendants are "indigent" - too poor to hire their own attorney; in some areas more than 90% are indigent. This system is similar to "managed care" in the health system, where in cases of psychotherapy, therapists are hired by insurance companies to see eight to ten clients each day for a much lower rate.  Not surprisingly, the "care" received by clients in each case suffers.

A more recent system that has emerged is the contract system, used in a few, but growing number of counties.  As implied by the term, local governments sign contracts with local attorneys to handle indigent cases.  This represents a sort of "privatization" of due process, as one study concluded.  It is a process where a system of "competitive bidding" is often done, with the result being that the lowest bidder, and not necessarily the best bidder, often "wins" the contract.  Typical capitalist mentality operating here!  It should come as no surprise that several states have filed suits and in one case the practice was ruled unconstitutional.

It is apparent that providing attorneys for indigent defendants is not a high priority.  To begin with, among the three major components of the criminal justice system, the least amount of annual expenditures goes to the general category of "judicial and legal." Several studies have found that, after accounting for overhead costs, the hourly rate for court appointed attorneys can be as low as just over $2 per hour.  In short, poor people get attorneys working for poverty wages.      

The retained counsel system is generally far superior, especially if a defendant can afford the fees. The main reason for this is that with enough money, private attorneys can hire investigators and spend more time collecting evidence, finding witnesses, and taking other measures to insure an adequate defense.  In such cases, the likelihood of getting the death penalty is remote.  But, after all, most of these cases involve a white defendant with some Acapital.@

Ultimately this issue may come down to one over-riding issue: human life has a price tag in a capitalist culture.  Some lives are worth more than others (note that the killing of a white person will result in the death penalty being applied much more often than the killing of an African-American).  In the case of the death penalty, the life of a poor black man is not worth much.