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Death Penalty 8 Essay, Research Paper

America is the last western industrial nation that still uses the death penalty against serious criminals. Throughout history the American legal system has shown discrepancies in convicting minorities with serious crimes and using capital punishment for their penalty. Many authors have debated the issues of discrimination and how it can be proved. The Baldus study was the first comprehensive statistical analysis on the issue. This study clearly had shown a discrepancy in the way sentences where handed down to minorities. It failed to make any changes in cases in was used for. Other authors believed that this study was flawed because of the amount of interracial crimes. They believe that the numbers are not statically relevant. Many cases have failed to show clear prejudice or racism in court proceedings, but have shown instances of false arrests and convictions after new evidence surfaces clearly showing racism in the steps of law enforcement. This paper will review the studies and cases that will bring to light these findings.

Anthony G. Amsterdam believes that the decision in the case of Warren McCleskey amounts to an open license to discriminate against people of a different race and places it on grounds that implicate the entire criminal justice system. Warren McClesky was a black man sentenced to die for the murder of a white man in Georgia. He robbed a furniture store at gunpoint, and he or one of his accomplices killed an officer who arrived first on the scene. McCleskey may have been the shooter. Whether he was or not, he was still guilty of murder under Georgia law. His court case was not interested in his guilt, but why he was sentenced to death instead of life imprisonment (Amsterdam, 1988).

The Supreme Court held that McCleskey can be constitutionally put to death even though there was unexplained statistical evidence that the death penalty is being imposed by juries in Georgia in a pattern that reflects the race of convicted murderers and cannot be accounted for by any factor other than race. McCleskey’s primary statistical evidence in support of this claim was called the Baldus study. It was a sophisticated statistical analysis performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth of the role played by race in capital sentencing proceedings in Georgia in the 1970’s. The Baldus study was based on data from more than 2,000 Georgia murder cases during the relevant period. It considered 230 potentially relevant, nonracial variables that might explain disparities in capital sentencing. The conducted analysis and its results are almost certainly seen as statistically valid (Lee & Bhagwat, 1998).

They used over 500 factors in each case. Information relating to the demographic and individual characteristics of the defendant and the victim, the circumstances of the crime and the strength of the evidence of guilt. The aggravating and mitigating features of each case: both the features specified by Georgia law to be considered in capital sentencing and every factor recognized in legal literature. The finding show that less than forty percent of Georgia homicide cases involve white victims, in eighty-eight percent of the cases in which a death sentence is imposed, the victim is white, White victim cases are almost eleven times more likely to produce a death sentence than are black-victim cases. When the race of the defendant is considered twenty-two of black defendants who kill white victims are sentenced to death, eight percent of white defendants who kill white victims are sentenced to death, and one percent of black defendants who kill black victims are sentenced to death. Three percent of white defendants who kill black victims are sentenced to death. Of the two thousand five hundred Georgia homicide cases found, only sixty-four involved killings of black victims by white defendants. It is shown that most black defendants kill black victims and almost no white murderers kill black victims. Virtually nobody is sentenced to death for killing a black victim. After controlling for legitimate nonracial factors, murderers of white victims are still being sentence to death four point three times more often than murderers of black victims. Approximately five percent of Georgia killings result in a death sentence. When more than 230 non-racial variables are controlled for, the death -sentence rate is six percentage points higher in white-victim cases than in black-victim cases. This all means that it is very important to know whether the victim killed is white or black when betting on what sentence will be carried out (Amsterdam, 1988).

Warren McCleskey’s own case fell in a mid-range aggravation level. At this level, the race-of-victim effects were more pronounced than in cases with low aggravation or extremely high aggravation. Where as there were six to seven percentage point disparities estimated for all 2,484 cases, in the mid-range cases the estimated disparities ranged from eleven to twenty-nine percentage points, with the best-estimate being seventeen percentage points, at the ninety-five percent level. Thus, in cases with aggravation levels similar to McClesky’s, defendants in white-victim murders were sentenced between 34% and 43%, while defendants with black victims were sentenced to death at rates between 14% and 23% showing a large difference (Mello, 1995).

The court gave four basic reasons why McClesky’s argument would not work. The first was that capital sentencing decisions are made by a host of different juries and prosecutors. Second, capital punishment laws are important for the protection of society and discretion is use with exceptionally clear proof to prove guilt. So it would be hard to show that the discretion has been abused. Third, discretionary judgments make it impossible to ask why they have come to their decision. So McClesky would have to have proof that the particular jury or the individual prosecutor, or some other decision-maker in his own case, was personally motivated by racial considerations to bring about his death. This proof is near impossible to obtain. The court also expressed fear that if the discrepancies of race were accepted as unfair, then other claims based upon the defendant’s looks could be used to show discrepancies and unfairness. Amsterdam believes that this decision takes away the basic values of justice and equal protection. He believes the Supreme Court has made it acceptable to discriminate based on race (Amsterdam, 1988).

John McAdams believes that there are major problems with the Baldus study. He believes that the people that want to abolish the death penalty want to prove racial discrimination in sentencing to do so. He makes the point that if the death penalty was abolished that any other sentence like life imprisonment would not be more fairly imposed. That change in sentencing would be refuted until people are let free. The opponents of the death penalty make two different arguments about racial fairness, and they are flatly contradictory. The first thing that he sees when he started looking at statistics was that blacks are over represented on death row. Thus, he might conclude that the system is unfairly harsh on black defendants. For 48 percent of the death row population in our country to be black is clearly practicing genocide when he considers that Afro-American’s are only 12 percent of the population. Somewhat more recent figures show 41.7 percent of the death row population to be black, and of all prisoners executed since 1988, 38.7 percent have been black. Presumably, this is because of racist prejudice against black defendants on the part of prosecutors are responsible in a democracy. McAdams calls this the mass-market version of the racial disparity argument. He shows that 48 percent of murder victims are black in 1995. He then looks at the vast majority of murders are interracial and not interfacial. Among murders involving blacks and whites, 90 percent involve a white killing a white or a black killing a black. Almost three-quarters of the rest involve blacks murdering whites, and only a small handful involves whites murdering blacks. Knowing this the number of blacks on death row and the number of blacks executed doesn’t look far out of line. Beyond the numbers he shows a solid assessment of the numbers. He controls for factors that might legitimately result in more of less severe sentences. The opponents of the death penalty have actually cited the fact that blacks that murder whites are treated more harshly than blacks that murder blacks to argue for racial bias in the system. Unfortunately, the odds of black on white murders being comparable to black on black murders are about zero (McAdams, 1998).

White on black murders are rare, and difficult to deal with statistically, so what he is basically left with is a comparison of the treatment of blacks who murder blacks and whites who murder whites (McAdams, 1998).

The Baldus study show murders of blacks that are themselves overwhelmingly black are treated more leniently than murderers of whites. Of course, this can be formulated in a politically correct manner, as a bias against black victims. Given the racial disparity the statistics show that the severity is very low. McAdams believes that it is possible that there is some racial disparity, but it is not large enough to be picked up by statistical data. He believes that public officials should work to make the system even fairer. In particular, better provision could be made for an effective defense in capital cases (McAdams, 1998).

Many other people and authors believe that racism runs rampant in all aspects of law enforcement, most evident in police enforcement. In the first example a young black couple named Marilyn Green and Jerry Hillard were shot dead in a park in Chicago’s south side. By the following day the police decided to arrest a twenty-four year old black man with a criminal record named Tony Porter. Detectives rustled up a black witness who swore that he had seen Porter fire the fatal shots. That was all they had, no serious defense was offered. Porter also had an IQ of 51, but that did not stop him from being sentenced to the death penalty. Forty-eight hours before his death was going to be carried out had was granted a temporary reprieve. An enterprising lawyer that was only working because he cared phoned a journalism teacher named David Protess that teaches at Northwestern University. Protess then gathered a small group of student to investigate the case. They interviewed the police witness that claimed he could see the defendant’s face at 500 feet away. The witness then retracted his statement saying that he was threatened and harassed by the police in fingering Porter. The investigation also shows that Porter was left-handed and the killer was right-handed. Then they were able to track down the man that Marilyn Green’s mother said she saw with the couple before the murders. In the interview the man immediately confessed to the crime. Porter was eventually set free and Alstory Simon was arrested. What was frightening about the Porter case is that students were able to do what investigators could not and Porter was the tenth person to be released from death row like this in Illinois alone in the past two decades. This shows that even though there is only a twelve percent black population and thirty-six per cent of the 3,549 people now on death row, that many more of these defendants could be innocent due to discrimination in the first stages of law enforcement (Stephen, 1996).

Another telling case is the situation where racism and the community pressured a false conviction for a black man is Clarence Brandley. Brandley was released after ten years of false imprisonment on Texas’ death row. Clarence was the black supervisor with three white janitors at Conroe High School, fifty miles north of Houston. He was arrested in late August 1980; four days after a white female student was found raped and murdered I the school’s auditorium loft. School was to begin in a week. The School was flooded with telephone calls by panicked parents who refused to send their children to school until the murderer was caught. As a local police officer said shortly after the murder to a white janitor standing near Brandley, “He’s the nigger so he’s elected” (McCloskey, 1996: 6). His arrest calmed the community, and school started on schedule. The Texas Rangers spent 500 hours building up a case against Brandley. Clarence was finally exonerated and declared innocent by a retired state judge who was brought in from west Texas. Two of the janitors came forward and told how they had lied against Clarence at the original trial under pressure to do so by the Texas Ranger. After Clarence was finally released in 1990, he became a church minister in Houston. These cases show flagrant racism in serious cases that have plainly shown real discrimination against blacks.

The United Nations Commission on Human Rights released a report detailing the findings of its Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. The report focused on five major categories where the Us death penalty is unjust. Among them were, Juveniles, mentally retarded persons, racial discrimination, inadequate legal representation and executing the innocent (Senagal, 1998).

Before researching this paper I was for the death penalty as a way of dealing with very troubled people and getting the family of the victim some revenge. After reading all the problems and the cost I have changed my mind. With the two cases of the falsely accused defendants and the huge differences in how minorities are put to death far more times than the majority. There seems to be an overwhelmingly number of reasons not to use the death penalty at all. Innocent people are killed in a nation the was founded on protecting individual rights. The constitution allows a defendant to be judge by his or her peers. With all the ethnic differences and racism this system seems to be failing many people. I do agree that the death penalty should be abolished and replaced with life in prison and that people that can not afford counsel should be provided with some that are paid better and work harder in felony cases.

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