The Capital Punishment - Term Paper Example

?Introduction The evolution of man has also brought a change of certain concepts in society. The concept of equitable retribution of lex taliones that begun in the code of Hammurabi has drastically evolved through different concepts of social justice and abolitionist philosophies. A handful of countries have stopped capital punishment since 1900 and by the beginning of the millennium, at least two-thirds of the world no longer impose capital punishment (Hodgkinson and Shabas 1). There is a longstanding debate between the abolitionists or those who seek to remove the death penalty and those who believe in its traditional effect of retribution. But the question that lies is beyond the validity of imposing capital punishment but rather the effect of color or race that comes with the number of those sentenced for capital punishment. The effects of anger and retaliation are a development of social discrimination and prejudice fueled not just by the wrong act or omission but also the bigotry that comes with such hate. Capital punishment then becomes an added tool for racial discrimination rather than a positive effect of retributive justice. Researches made In 2002, a Governor of Maryland Parris Glendening initiated a research to be done by the University of Maryland regarding capital punishment and although criminologist Ray Paternoster found that the “race of the defendant was not significant in penalty-eligible cases”, race played an important factor whether the prosecutor sought for a death penalty punishment in a case (Hodgkinson and Shabas 8). There is not just racial disparity but also prosecutor disparity. At least 43% of total executions since 1976 and 55% of those awaiting execution is for people of color (American Civil Liberties Union, 2003). The General Accounting office in 1990 showed reports that “race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty." In numerous jurisdictions researchers and case laws have given sufficient proof of racial disparity among persons under death row. In Philadelphia, a study made in 1997 by David Baldus and statistician George Woodworth found results that between 1983 to 1993, a 38% increase in the possibility of a person being eligible for death penalty because the defendant was black. In North Carolina, a study released by the university showed that between 1993 to 1997, a three and a half increase in the possibility of incurring a death sentence when the victim is white rather than black. The area of jurisdiction varies from the number of the race’s population and possible historical background on racial prejudice. A good example is in the state of Georgia, where University of Iowa law professor David Baldus found that prosecutors sought death penalty for 70% of the black defendants with white victims compared to the minimal 15% white defendants who had white victims. (American Civil Liberties Union, 2003). Further effects of this study will be explained in the latter part of the discussion, as the “Baldus study” was attempted to be used as a defense in a Supreme Court case (McCleskey v. Kemp (1987). Prosecution disparity is eminent in these cases, it seems that racial discrimination the begun with society is also reflected to the administration of justice. It is the prosecutors who have the discretion in deciding whether cases should seek death penalty. Even in the choice of possible jurors, the prosecution takes control such as in the state of Philadelphia, where prosecutors move to remove 52 % of potential black jurors compared to a mere 23 % potential jurors of other races. Jeffrey Pokorak conducted another good research proving racial disparity. He related the important effects of race and gender of all the lawyers authorized to prosecute death penalty cases that evidenced racial disparity. In the 38 states studied, 98% of the prosecuting attorneys are white and almost all are male (Hodgkinson and Shabas 15). Supreme Court Decisions With this issue being established, the United States judicial system has dealt with the issue of racism in death penalty cases in numerous Supreme Court decisions. In the case of Furman vs. Georgia (1972), the Supreme Court attempted to remove every death penalty statute, stating that capital punishment is being “applied in an arbitrary and capricious manner”. The Court required for a degree of consistency in the application of death penalty cases. Justice Potter Stewart questioned the selection of convicts that are imposed with the death penalty as rather “cruel and unusual” as the “selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race”. But this case is a mere beginning for the Supreme Court to notice the racial disparity occurring in death penalty cases around the United States. Soon enough, numerous case law has proven and shown evidence of this effect. Batson v. Kentucky, 476 U.S. 79 (1986) The petitioner James Kirkland Batson, was a black man convicted in the Kentucky circuit court for burglary and receipt of stolen goods. Defendant’s lawyer questioned the jury selection conducted to be racially discriminating. Defendant challenged the exercise of the prosecution of its use of peremptory challenge,that resulted to the removal of all potential black jurors and left the case to be tried by an all white jury. Defense contends that the removal of all potential black jurors violated the rights of petitioner as protected by the Sixth Amendment to have an “impartial jury” and Fourteenth Amendments on equal protection of laws. The judge denied the motion, hence an appeal was made in the Kentucky Supreme Court, which also affirmed the conviction of the trial court and cited the case of Swain v. Alabama, 380 U.S. 202 (1965), which held “that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the panel of prospective jurors.” The U.S. Supreme Court upon further appeal reversed the decision of the appellate court, and lowered the required proof of “purposeful discrimination”. The Supreme Court held in this case that although a defendant may have no right to have a jury in whole or in part represented by persons of his own race, the Equal protection clause guarantees that the “State will not exclude members of his race” from the jury on “account of race. Although “peremptory challenges” are allowed in criminal procedure, the Court reminded prosecutors to be more cautious in exercising such privilege and not use such right to abuse and as a tool to deliberately deny jury participation from a certain race. The Court in recognizing the eminent discrimination done by prosecutors lowered the burden of proof established in Swain in proving “systematic striking of black jurors”. Purposeful racial discrimination can now be established based on records only of his own case and need not refer to a massive discrimination through out a county. Here it is established that prosecutors have the tendency to prosecute cases base on race rather than facts, and takes advantage of the procedure to compel such discrimination that would create a partial trial by jury. McCleskey v. Kemp, 481 U.S. 279 (1987) Complex statistical study that indicates a risk of racial consideration was put in issue by the high Court to answer whether or not capital punishment is unconstitutional under the Eighth or Fourteenth Amendment. In this case petitioner Warren McCleskey was convicted for robbery and for the murder of a Georgia police officer. He was sentenced to a death penalty based on aggravating circumstances. Petitioner then appealed to the federal courts to question the state of Georgia’s capital sentencing process to be racially discriminating and in violation of the Equal Protection Clause and that the same was a “cruel and unusual punishment” as protected in the Eight Amendment. Petitioner used the study and research conducted by Professors David C. Baldus, Charles Pulaski, and George Woodworth, which resulted into findings that “indicated risk that racial consideration entered into capital sentencing determinations”. The Court ruled on the negative, holding that “racial disparities in the death penalty were not a violation of one's Constitutional right of equal protection of the law." The Court based its decision on procedure, stating that “statistical study did not present substantial evidence” to reverse the petitioner’s conviction. The Court further added that even if the statistical date were accepted, the same was not enough evidence to show “conscious, deliberate bias by law officials”, and that “general disparities is an inevitable part of our criminal justice system." What the Court tried to establish is that claims of denial of “equal protection of laws” to racial minorities should not be merely based on “discriminatory effect”, but requires that in addition to such effect, that a discriminatory purpose through the governments “acts” be shown as a motivation in the creation of laws in order to be unconstitutional. Now the problem that such Supreme Court decision has made is on the effect of how these “discriminatory acts” can be distinguished properly from its “discriminatory effects”. It seems that in this case, the effects of the Batson case, which lowered the burden of proof in “purposeful racial discrimination” has been used against the defendant. If we will remember the previous Batson case discussed, the Supreme Court established that “purposeful racial discrimination” may be proved in the defendants own case without referring to the “systematic striking of black jurors throughout the county” as done in the Swain case. Although both cases are limited to the issue on peremptory challenge, it is noteworthy that the Supreme Court had made decisions on “percentage disparity”. It is a surprise that in the McCleskey case, the Court chose to ignore the Baldus study on racial disparity, but it was close case of 5-4, five judges voted for dismissal while four agreed and one judge recanted. The Supreme Court merely conceded referring to the evidence of racism as a “mere fact of life of American justice”, and if used to question the death penalty, “it would entirely condemn the justice system”. Conclusion With all studies, researches and cases taken by the Supreme Court, the evidence of racial disparity in capital punishment is obviously present in the United States judicial system. The effect of such disparity creates a violation of the most fundamental right to life and is further affected by violating the Due Process and Equal Protection of laws clause. We have seen how the judicial system has viewed racial discrepancy as a mere “effect” or "fact of life” of the criminal justice system. It being a mere fact of life does not hold barred, the government cannot merely accept and ignore studies such as those provided by numerous cases and research. The death penalty itself creates an unending debate of how punishment is considered just or cruel. Wrongful convictions have a separate study by themselves and the negative effects of capital punishment. The case is made more complex with the issue of racial discrepancies on its realms. A moratorium on the death penalty is needed to address this miscarriage of justice and to release further complexities that this issue may create. Sources Hodgkinson, Peter and Schabas,William A. Capital Punishment: Strategies for Abolition. Cambridge: Cambridge University Press. 2004. Print. “Race and the Death Penalty”. American Civil Liberties Union aclu.org, 23 February 2003. Web. 5 May 2011. Cases: Furman vs. Georgia (1972) Batson v. Kentucky, 476 U.S. 79 (1986) Swain v. Alabama, 380 U.S. 202 (1965) McCleskey v. Kemp, 481 U.S. 279 (1987) Read More