Tuesday, April 29, 2008

The Death Penalty

This in the New York Times is perplexing. Race clearly matters in the criminal justice system, but I was surprised at the way the problem gets hashed out - it's the victims race that matters more than the alleged murderer?

Most disturbing of all:

"Twenty-one years ago, the Supreme Court ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not offend the Constitution. The vote was 5 to 4, and the case was McCleskey v. Kemp."

One NYU prof called it the new Dred Scott . . .

1 comment:

Laura said...

Just a quick comment. The deal is there is evidence that, statistically speaking, anyone, black white or whatever, will be more likely to sentenced to death if the murder victim is white rather than non-white. So there is clearly demonstrated racial bias in the administration of the death penalty, but with respect to the race of the victim, rather than the race of the perpetrator. I believe this is relatively undisputed.

I guess the statistics are murkier with respect to the impact of of the defendant's race on the death sentencing and/or prosecutors seeking the death penalty. So the Harris County study could be very interesting.

The trouble, constitutionally, is that under the Equal Protection Clause, if a law does not make an overt racial classification (ie, black people get the death penalty for all murders; white people only get the death penalty for heinous murders), a law (or its application) will only violate the 14th Amendment if you can prove an actual *intent* to discriminate. Discriminatory impact alone is not enough. So here you'd have to prove that either prosecutors or jurors make death penalty decisions with the purpose of treating black defendants more harshly. This is why all the stats presented in McCleskey showing racial bias in capital sentencing got the defendant nowhere. Statistics are good at showing impact; but they tell you nothing about what's going on in a juror's mind in an individual trial.

Still, if studies like the Harris County study turn out to hold water, perhaps we can go back to the old strategy of arguing that the death penalty is applied so inconsistently that it is cruel and unusual under the 8th Amendment. Furman v. Georgia, back in the day, held that the application was so arbitrary that "death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." If the Harris County study shows that there is no consistency in the level of depravity or the kinds of murders that result in capital sentences, then the race question may even be moot (for the legal argument, I mean).

On the other hand, the court as it stands, despite Stevens' recent turn-around, does not seem likely to find the death penalty unconstitutional any time soon.