For once we agreed on a political issue, albeit for very different reasons, although I don't just consider the death penalty ineffective. I also consider it immoral.
My relatives defend the existence of capital punishment on a deterrent theory of penology. They find it ineffective because of ``the ridiculous number of appeals'' granted defendants, the ``technicalities'' on which death sentences are overturned, and the ``turtle- paced rate of executions'' in the United States.
I find the death penalty ineffective because it is no more a deterrent than life imprisonment; because convicted murderers usually are model prisoners who become law-abiding citizens upon their release; because the costs of executing a capital offender exceed the costs of imprisoning him for life; because a convict under sentence of death performs none of the useful functions that life prisoners perform; and because death penalty may actually stimulate criminal activity.
I find the death penalty immoral because it is racist.
The death penalty has grown up in a country where race has been the primary influence on the severity of punishment. The valuing of white lives over black lives was once mandated by law. During the colonial period, black slaves who killed whites, regardless of whether in self-defense or in defense of another, were automatically executed.
By the Civil War, a dual system of crime and punishment was deeply entrenched. The criminal code established that the rape of a free white female by a black ``shall be'' punishable by death. The rape of black women (which was far more often the case) was punishable ``by fine and imprisonment, at the discretion of the court.''
Capital punishment evolved as a sanction imposed against certain identifiable classes of people, mainly blacks.
National Prisoner Statistics for 1930-1968 indicate a total of 3,859 executions. Of those executed, 1,751 were white and 2,066 were black. Of those executed for rape, 48 were white and 405 were black. Some will attempt to explain away this numerical disparity by arguing that the higher rate of execution among blacks is partially due to a higher rate of crime. This, however, is a subterfuge for the underlying explanation: racism.
In the time between 1968 and 1992, the United States General Accounting Office indicates that the numbers have not improved. The Baldus study is the most sophisticated statistical evidence on capital punishment introduced in more recent times. It is a comprehensive survey of the imposition of Georgia's death penalty presented during the 1987 Supreme Court case of Warren McCleskey.
Professor Baldus looked not only at the race of the defendant but also at the race of the victim in meting out death sentences. The raw figures indicated that the death penalty was given in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 3% of the cases involving white defendants and black victims; and 1% of the cases involving black defendants and black victims.
The figures further indicated that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 19% of the cases involving white defendants and black victims; and 15% of the cases involving black defendants and black victims. You don't have to have a law degree to realize that this racial imbalance.
The Supreme Court, in its infinite wisdom, determined that McCleskey's claim failed because of 1) the Court's desire to encourage sentencing discretion, 2) the existence of ``statutory safeguards'' against abuse of that discretion in the Georgia scheme, 3) the limits of the judicial role, and 4) the fear of encouraging widespread challenges to other criminal sentencing decisions.
This last reason is the most disturbing -- McCleskey's claim of discrimination might open the door to widespread challenges to all aspects of criminal sentencing. It suggests, as the dissent pointed out, a fear of too much justice.
In the South (often referred to by defense attorneys as ``Death Valley''), black defendants are still tried before predominantly or all-white juries. Often the only African-American participating in the process is the person who is on trial. In Chambers County, Alabama, the prosecutor divided up the prospective jurors for a capital trial into four different lists: ``strong,'' ``medium,'' ``weak,'' and ``black.'' Albert Jefferson, a mentally retarded African-American accused of a crime against a white person, was tried by three all-white juries before being sentenced to die.
Prosecutor Joe Briley, a local hero in my hometown of Gray, has tried thirty-one death penalty cases in his tenure as District Attorney. Twenty-four of those had African-American defendants. In cases with black defendants and white victims, he used 94% of his jury challenges -- 96 out of 103 -- against black citizens. Later he was found by the Circuit Court of Appeals to have issued a memo designed to intentionally underrepresented blacks, women, and all individuals 18-24 years old on grand and traverse juries. Having earned the dubious distinction as the ``electric chair lawyer,'' he is still routinely prosecuting death penalty cases.
All too often, prosecutorial zeal for the death penalty is met only with incompetence and ineptitude from the defense bar. Public defenders are often given capital cases as a kind of punishment -- for giving the judge a hard time in some earlier trial. One court-appointed lawyer came to court during trial so intoxicated that the judge had to stop the trial for a day and send the lawyer to jail. Another defense lawyer gave no opening statement, did not ask many questions, did not make any objections, and failed to inform the jury that the youth sentenced to die suffered from schizophrenia. The only time the court-appointed lawyer in yet another case ever referred to his client at the capital trial was in the closing argument when he called him a ``little 138-pound nigger.''
A different lawyer for a mentally retarded young man with an IQ of 58 presented nothing about his client's limitations. The lawyer even got the client to waive a jury sentencing and let the judge sentence him to death. An attorney for the recently executed John Young had been arrested on state and federal drug charges, admitted to being on drugs, and said he was in the process of breaking up with his wife and his gay lover throughout the course of Young's trial.
When I tell people about these cases, many assume they must have all happened before the Civil Rights Movement. Wrong. These cases all happened during the 1980s and early 1990s. As of the summer of 1992, there were 2,572 men and 44 women awaiting execution in the United States. In 1992, only 2 of the executions involved crimes with black victims though blacks are victims in about 50% of the murders in the U.S.
The most recent and vivid example of capital punishment gone awry is that of Walter McMillian, an African-American man who was released March 2, 1993 after spending six years awaiting execution on Alabama's Death Row. He was locked up on Death Row even before he was even tried. The state built a case on suspect testimony and withheld crucial evidence that called that testimony into question. Mr. McMillian was convicted after a one- and-a-half-day trial on the testimony of three witnesses. The defense offered a dozen witnesses who all testified that McMillian was at home the day of the murder taking part in a fish fry. He was still found guilty. The jury sentenced him to life in prison without parole. The judge thought this was too lenient and changed the life sentence to death. All three prosecution witnesses later recanted their testimony, claiming that law officers prodded them into accusing Mr. McMillian and pressured them to lie in court.
If not for the judge's overly harsh treatment in giving McMillian the electric chair, McMillian would have been just another forgotten black inmate in an Alabama prison. But because the judge found McMillian too repulsive to leave the jury's life sentence in place, the case was vigorously appealed and the truth came to light. Meanwhile, our Supreme Court is increasingly cutting off avenues for Federal appeals in the only country among all the Western industrial democracies which still executes its own citizens.
The United States shares its time-honored tradition with the governments of the People's Republic of China, South Africa, Saudi Arabia, and Iran -- a gallery of the most repressive and backward-looking regimes in the world.
The foundation of our criminal justice system is the belief that a defendant is ``innocent until proven guilty.'' William Blackstone summed it up in his famous phrase that ``it is better that ten guilty persons escape than one innocent suffer.''
This phrase is rendered meaningless when black people who kill white people have a 25% chance of the death penalty while white people who kill black people have a .41% chance of the death penalty.
Jesselyn Brown is a second-year student at Yale Law School.