Capital Punishment in America is Arbitrary and Racist

Photo courtesy of iStockphoto

Capital punishment is prominent in the news right now. Texas Governor Rick Perry, who is running for the Republican nomination for President, was the beneficiary of a cheering crowd at a recent GOP debate when he said the execution of 235 Texas inmates under his governorship never once kept him awake at night. The next man in line on death row in Texas is Duane Edward Buck, an African American accused and convicted of murder, his guilt for the crime not in doubt, but whose plea for a reprieve of execution has been denied by Rick Perry and the Texas courts. This next execution might be keeping Rick Perry up at night this time, because the Supreme Court ordered a temporary stay of execution hours before it was to occur, so that they review Buck’s case. Apparently a large factor in determining whether Buck should receive the death penalty hinged on the potential that he would commit murder again. The testimony that is now in question was given by psychologist Walter Quijano, who argued that racial factors, such as being black or Hispanic, made a criminal more likely to recommit past crimes in the future. I believe that this case presents a significant challenge the Supreme Court’s past precedent on capital punishment, and for the Court to remain consistent with past rulings it will need to overturn Buck’s sentence of death. Before I explain the nature of this legal dilemma, I think a discussion of the Supreme Court history on the subject is helpful.

For a long time capital punishment was relatively uncontroversial in America. However in 1972, Justice Brennan’s concurrence with the Supreme Court’s majority opinion in Furman v. Georgia, lays out a clear case that capital punishment, as it was administered at the time, should to be considered unconstitutional. He contends that the death penalty violates the Eighth Amendment because it is cruel and unusual punishment. Original intent is outright rejected as a guiding force on this matter by Brennan, and he suggests a view that “punishment must not by its severity be degrading to human dignity.” Death, he argues, is unique and unusual as a punishment due to its “finality” and “denial… [of] humanity ” when administered by the state. Since the death penalty has clear traditional roots and acceptance in America, it is not unusual in that sense. So Brennan makes the case that capital punishment is so rarely pursued as to be tantamount to a “lottery”, demonstrating its arbitrary enforcement and society’s fading desire to see it so enforced. Furthermore, there is no evidence that it serves as a better deterrent against murder than long term imprisonment. Justices Douglas, Stewart, White, and Marshall also crafted concurring opinions, indicating a divided Court even among those who agreed on the unconstitutionality. Justice Stewart agrees that the death penalty is unconstitutional since it is capriciously administered, however he does not support the view that it is cruel and unusual punishment per se.

Four years later in Gregg v. Georgia, the Supreme Court was presented with another capital punishment case, but this time after the state had reworked its statute to designate the exact circumstances under which it would pursue the death penalty. A bifurcated trial, in which sentencing was addressed separately with the guidance that specific “aggravating circumstances” had to be involved in order to obtain an execution, was introduced so as to remove any arbitrary enforcement. In this instance seven Supreme Court Justices approved of Georgia’s changes to the law and declined to throw it out. Justices Stewart, Powell, and Stevens argued in the Court’s opinion that the death penalty was accepted by American society as a valid form of sentencing which is not cruel or unusual on its face. Retribution, although not a goal of the modern application of law, is a justifiable reason for seeking the death penalty for crimes so heinous that there is no other recourse that is satisfactory for the public and the victims. Also, the expectation that potential execution serves as a deterrent against murder remains inconclusive based on empirical data, the threat of capital punishment undoubtedly prevents some from planning murder, according to the Justices.

The Supreme Court heard another challenge to the capital sentencing in McCleskey v. Kemp a decade later. The interesting feature in McCleskey was the introduction of the Baldus study, which demonstrated with rigorous statistics that the death penalty was discriminatorily enforced. The study indicated that if the victim in a murder was white, rather than black, there was a significantly greater likelihood of execution, beyond a degree of chance. The Court was not persuaded by this evidence however, and upheld the state of Georgia’s right to carry out the death sentence in a 5-4 vote. Justice Powell, delivering the opinion of the Court, argued that the defendant failed to show that the alleged discrimination applied specifically to his sentencing. Powell rejected the position that the Baldus study proved that McCleskey’s own rights had been violated under the Equal Protection Clause, because there was no direct evidence that racism played a part in his specific case. McCleskey was guilty, beyond a reasonable doubt, of shooting a police officer during an armed robbery. This was exactly the type of aggravating circumstance that the Georgia legislature, acting in an unbiased manner, had accounted for in crafting its current capital punishment sentencing rules, which had already held up to the Court’s scrutiny in Gregg.

It should be no surprise that Justice Brennan was joined by Justice Marshall in a dissenting opinion, having both disagreed with the majority in Gregg. However, Justices Blackmun and Stevens joined the dissent even though it was a reversal from their previous position in Gregg. Brennan argued that the Baldus study provided empirical evidence that McCleskey was more likely to be executed because the person he killed was white. The dissent quarreled with the requirement of proof set by the majority for verifying prejudice in McCleskey’s individual circumstance. The Baldus study provided the needed proof that the whole system of capital punishment was suspect, being altogether arbitrary and capricious. The Baldus study also indicated something even worse about the death penalty, not only is its application illogical in the aggregate, but it is statistically racist on top of that.

In 1993, another controversial capital punishment case was decided by the Supreme Court, but this time involving a man on death row who was potentially innocent. In Herrera v. Collins, a 6-3 majority ruled in favor of the state of Texas, once again reaffirming its recognition that execution is not cruel and unusual punishment of the sort prohibited by the Eighth Amendment. Chief Justice Rehnquist delivered the Court’s opinion, which determined that the defendant, eight years after conviction, had waited too long to produce affidavits claiming his innocence. The Chief Justice laments that this evidence missed the opportunity to be presented at Herrera’s trial so its credibility could be verified. This rationalization is called directly into question by the dissent because it criticizes the veracity of the affidavits while simultaneously denying them the process by which to judge their truth.

The death penalty is a widely accepted form of punishment in America for the crime of murder. A female friend recently expressed to me that we ought to kill rapists as well. I speculate that it would be difficult to find a majority of Americans who disagree with the hanging of cold blooded killers. Where I live in western Washington, the mood is predominantly liberal, yet most people I know do not think it would be cruel and unusual to execute Gary Ridgeway, the Green River Killer. I myself have the feeling that individuals as evil as Ridgeway deserve to die. I believe leaving such evil men alive is a damaging affront to society, such as the continued existence of Charlie Manson, who now and then gets to have his opinions broadcast on television. In order to persuade a person of my disposition to oppose the death penalty, philosopher Jeffrey Johnson has suggested a strategy that could work, called the argument from contingent realities. He suggests that one could completely concede that, in a perfect world murderers deserve to die, yet still recognize that capital punishment must be ultimately foregone because it is not possible to administer it fairly. The Supreme Court’s recent decisions in this territory endorse capital punishment generally, but leave open the possibility that Johnson’s strategy could have some success in the future.

The substance of the debate is whether or not the death penalty is cruel and unusual punishment, in and of itself. The arbitrary and capricious allegations get to the heart of the controversy, because these circumstances help to answer the central question of whether capital punishment is truly a justice served or an immoral sanction, considering its lottery-like distribution. Whether to apply the Eighth Amendment based on original intent, or the 14th Amendment’s Equal Protection Clause based on modern statistical studies, or the Court’s previous precedents, these are technical and interpretive controversies that also have bearing. The Supreme Court has yet to ban the death penalty all together, but I believe that they should. It is obvious to me that it cannot be administered fairly, and so I have changed my mind about its justification in a practical sense. That is not to say that I no longer feel that murderers deserve to die, because I still believe that as much as I did before. The contingent reality, as argued by Johnson, and supported by me, is that this is not a perfect world in which the management of the final and ultimate retribution of death, a death delivered at the hands of the state, is executed with the even hand of justice. Capital punishment without absolutely consistent, equal, and correct administration to the truly guilty is cruel and unusual punishment. And since capital punishment cannot be administered perfectly it is too capricious and costly a practice to consider appropriate of a moral society.

Now the Supreme Court, with the case of Duane Edward Buck, must deal with new evidence that capital punishment in America is administered in a racially biased fashion. In McCleskey v. Kemp, the evidence of the Baldus study indicated that a murder victim’s race was highly determinant in whether or not the murderer would face the death penalty. If someone is found guilty of murder it does not matter so much what race the convicted person is, what matters is whether they kill a white person or not, because killing a white person significantly increasing the chances of receiving the death penalty. This is a racist outcome in regards to retributive justice, since non-white murder victims and their families do not receive this justice the way white murder victims and their families do. In Buck’s case we see that race was explicitly sighted by an expert psychologist witness for the State of Texas, and this testimony was used to suggest that Buck should personally get the death penalty because he is black, because this arbitrary fact about the color of his skin supposedly makes him more likely to murder in the future. Unlike the Baldus study which shows that the murder victim’s race is an arbitrary determinant in capital punishment sentencing, Buck’s case demonstrates that the murderer’s race is also an arbitrary determinant for who does and does not get the death penalty. The substantive arguments against capital punishment are strongly reinforced here.

Besides the substantive controversy, an even more interesting dilemma for the Supreme Court appears in Buck’s case, but of a technical nature. In order for the Court to remain consistent with its own standards for the use of evidence in death penalty cases, it must overturn Buck’s sentencing. If the Baldus study could not be used to overturn the sentence of death in the case of McCleskey, due to its value being of a statistical nature only and not specific to the actual case at hand, then the use of an expert witness for the State of Texas, who recommends a death sentence to a jury based on racial propensities for repeat offenses, would surely be just as inappropriate to any individual case. If the Supreme Court allows Buck to be executed based on racist considerations in a general sense, then the Court would paradoxically need to allow the Baldus study back into capital punishment sentencing as well, potentially ending the death penalty altogether. Personally I think that we should do away with capital punishment based on the substance, that it is arbitrary, capricious, and racist, but I my hunch is that Buck’s case will be resolved technically without the death penalty itself overturned.

Jared Roy Endicott