Death Penalty and New Studies of Disparate Racial ImpactResearch Paper

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Race and the Death Penalty

In 1972, the Supreme Court of the United States abolished the death penalty because they found that in the U.S., it had been historically applied to different races in different ways. While death had been a legal punishment since before the founding of the nation, because it had been given out as a punishment in a fair and even-handed manner, for the first time in its history, the United States was country without a death penalty. But this cessation of the death penalty was short-lived as individual states amended their laws to make their punishments appear to be more fairly applied to individuals of all races. But since the reinstatement of the death penalty in 1977, there have been more than 1200 executions in the United States and an investigation of how the death penalty was applied in those cases can demonstrate how, in spite of the Supreme Court's abolishment, the rewriting of the laws, and its reinstatement, the death penalty, as a punishment, still seems to be applied in an arbitrary and racially biased manner. Much like one of St. Leo University's core values: Integrity, the death penalty in America must be applied in a just and unbiased manner, without regard to a defendant's, or the victim's race. As the Supreme Court once decided that the death penalty could only be used if it was applied in an fair and even-handed manner, an objective look at the facts surrounding the current application of the death penalty will demonstrate that, like before, it is being applied in an arbitrary manner, specifically discriminating against African-Americans. As a result, unless a way can be found to make it more fairly applied, Americans should reconsider the legal use of capital punishment.

Western history is replete with examples of different cultures using the death penalty for a variety of crimes, in fact the first recorded death penalty law can be traced back to the Code of Hammurabi in the 18th century B.C.. The Egyptians, Hittites, Greeks, and Romans all employed the death penalty, but the country that has had the greatest influence on capital punishment in the United States was Great Britain. It is estimated that during the reign of Henry VIII alone, more than 70,000 persons were put to death in state-sponsored executions. During the Medieval Period, common means of executions were incredibly gruesome and included boiling in oil, burning at the stake, beheading, hanging, and drawing and quartering. While capital offenses were at first limited to such offences as murder and treason, the number of capital offenses continually increased until "by the 1700's, 222 crimes were punishable by death" ("History of the Death Penalty")

The death penalty in America can be traced back to the very first settlers who brought this tradition from their homeland in Britain. In 1608, the first execution in America took place when Captain George Kendall was executed in the Jamestown colony for being a Spanish spy. Executions were carried out in public and continued unabated for the next two centuries until 1834 when Pennsylvania became the first state to remove executions from the public and hold them in private facilities. But death was still considered to be a deterrence to serious crime, especially murder, and "Americans in the seventeenth and eighteenth centuries knew in the abstract, even if they had not witnessed any actual executions, that death was the consequence of serious crime." (Banner, 2002, p. 11) Pennsylvania also became the first state to repeal the punishment of death for all crimes except first degree murder. Other states followed suit with the 19th century seeing a reduction in the number of crimes for which a person could be sentenced to death throughout the United States. By the early 20th century, a number of other countries had abolished the death penalty, followed by a few states such as Rhode Island and Wisconsin, but most states in America maintained a death penalty for serious crimes. (Herrmann, 2007, p. 6)

Those who oppose the death penalty have always been a minority in America, but in the early 20th century this opposition became powerful. As a result, six states abolished the death penalty in the years between 1907 and 1917, but this opposition was momentary. In the 1920's the death penalty was once again popular as many leading researchers believed that death was a necessary means of deterrence. But by the 1960's American society once again began to question the morality of death as a punishment. In a number of cases, collective known as Furman v. Georgia, the Supreme Court of the United States found that death could be considered cruel and unusual punishment for a number of reasons. In the Furman case, it found that the state of Georgia had been applying the death penalty in an arbitrary manner, basing many decision on race, and therefore invalidated forty death penalty laws and suspended the death penalty nationwide. Even as the majority of the Supreme Court ruled that both federal and state statutes which permitted a wide discretion in the application of death as a penalty were unconstitutional, two Justices, Marshall and Brennan, argued that the death penalty was unconstitutional in all cases. But it was the fact that the death penalty had not been applied in a fair and balanced manner, specifically being applied to African-Americans more likely than other races, that allowed the Supreme Court to abolish capital punishment in 1971. As a result of the Supreme Court's decision in the Furman case, more than 600 death row inmates had their sentences commuted; but executions soon began again as states amended their laws. One way that states got around the Supreme Court's ban was to enact legislation that provided for "guided discretion," or a two stage process by which first the defendant's guilt or innocence was determined and then, in a second stage, a "determination of the sentence after consideration of aggravating and mitigating circumstances." ("History of the Death Penalty and Recent Developments") With these conditions executions began again in 1977, and have continued ever since.

In the more than thirty years since executions have resumed in the United States, race has once again raised a number of issues concerning the application of the death penalty. Not only does the race of the defendant matter when it comes to the justice system, but studies have concluded that the race of the victim is equally important. For instance, a defendant is more likely to be sentenced to death if the victim of the crime was white. Studies have shown that "even though blacks and whites are murder victims in nearly equal numbers of crimes, 80% of people executed since the death penalty was reinstated have been executed for murders involving white victims." ("Race and the Death Penalty") in other words, of all the people put to death since 1976, 1440 were executed for murders where the victim was white, 287 where the victim was black, and 113 where the victim was Latino (49 were listed as "other"). This racial disparity seems to be endemic to the prosecutors office as one University of Iowa law professor, David Baldus, found that "prosecutors in Georgia sought the death penalty for 70% of black defendants with white victims, but for only 15% of white defendants with black victims." ("ACLU Race and the Death Penalty") and a 2007 Yale University study concluded that "African-American defendants receive the death penalty at three times the rate of white defendants in cases where the victims are white." ("Death Penalty and Race")

Since prosecutors have discretion in the decision as to which cases they will seek the death penalty and which ones they won't, it is also interesting to note that in the 38 states that allow the death penalty, almost 98% of prosecutors are white. ("ACLU Race and the Death Penalty") and prosecutors not only seem to be racially biased in deciding which cases to bring the death penalty, but they also seem to have some racial bias in allowing people to serve on juries. For example, prosecutors in Philadelphia had more than 50% of potential black jurors removed while doing the same for less than a quarter of other potential jurors. ("ACLU Race and the Death Penalty") to put it another way, prosecutors wanted to remove black jurors twice as often as they tried to remove other jurors. It is no wonder since, assuming there was racial bias in deciding which cases would become capital cases, there was also an increased chance that the defendant would turn out to be black; and prosecutors did not want a sympathetic black jury. And it is not only state prosecutors who seem to be racially biased in capital cases, a Department of Justice survey stated that the federal death penalty is used at a greater frequency when the defendant is black and the victim is non-black, than when the defendant is black and the victim is also black. In a case of murder where a… [END OF PREVIEW]

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