Punishment, the Death Penalty, and Race

Punishment, The Death Penalty, and Race:

“Why do we punish criminals?  Is it from a desire for revenge?  Is it in order to prevent a repetition of the crime?”  And so on.  The truth is there is no one reason.  There is the institution of punishing criminals.  Different people support this for different reasons, and for different reasons in different cases and at different times…And so punishment is carried out.”

--Ludwig Wittgenstein

Philosophers discuss punishment in terms of five elements:

• Punishment must involve pain, harm, or some other consequence normally considered to be unpleasant.
• The punishment must be administered for an offense against a law or rule.
• The punishment must be administered to someone who has been judged guilty of an offense.
• The punishment must be administered by someone other than the offender.
• The punishment must be imposed by rightful authority.

Aims of punishment:

• Retribution – criminals should be punished because they deserve it.
• Prevention – criminals should be punished in order that we may protect ourselves from a repeat offense.
• Deterrence – criminals should be punished in order that we may discourage others from committing similar acts.
• Rehabilitation – criminals should be punished in order that they may be reprogrammed and released back into society.
• Expressivism – express public moral condemnation
• Degradation – to degrade and humiliate, i.e. to debase or lower the status of the criminal

Early Death Penalty Laws:

The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes.  The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets.  Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.

SCOTUS and the Death Penalty:

Furman v. Georgia: June 1972 Supreme Court ruled that the death penalty is unconstitutional via Article 8 of the Bill of Rights:

Article [VIII.] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

4 principles (via William Brennan – SC Justice) with which to determine whether a punishment is cruel and/or unusual:

• A punishment must not be so severe as to be degrading to the dignity of human beings.
• The state must not arbitrarily inflict severe punishment.
• A severe punishment must not be unacceptable to contemporary society.
• A severe punishment must not be excessive.

The issue in Furman was the “standardless discretion” jury members had to select the death penalty.

Gregg v. Georgia:  In July 1976 Supreme Court reinstated the death penalty.

Executions since Gregg (1976):

1273 Total (with 46 in 2010 and 39 thus far in 2011

States without DP (16):

Alaska, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico*, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin

*Two inmates remain on death row in NM

Coker v. Georgia (1977):  Death penalty for rape ruled to be unconstitutional.

Atkins v. Virginia (2002):  The Supreme Court ruled that it is unconstitutional to execute criminals with sub-70 IQs. This ruling overturned an earlier 5-4 decision in 1989 (Penry v. Lynaugh). [Discuss reasoning behind decision.]

Innocence and the Death Penalty:

Since 1973, over 130 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil & Constitutional Rights, Oct. 1993, with updates from DPIC).

From 1973-1999, there was an average of 3.1 exonerations per year. From 2000-2007, there has been an average of 5 exonerations per year.

Deterrence and the Death Penalty:

Murder rates in states with capital punishment: 5.2

Murder rates in states without capital punishment: 2.8

Race and the Death Penalty:

McCleskey v. Kemp (1987): The Supreme Court ruled that in order for racial discrimination to serve as a justified grounds for reversal of a death sentence, the defendant must show that racial discrimination was a motivating force behind his particular sentence, i.e. it is not enough to show that—in general—the implementation of the death penalty is racially biased (something nearly everyone agrees is the case).

In  96%  of  the  states  where  there  have  been  reviews  of race and the  death  penalty, there was a  pattern  of either race-of-victim  or  race-of-defendant  discrimination,  or both. (Prof. David Baldus report to the ABA, 1998).

98% of the chief district attorneys in death penalty states are  white;  only  1%  are  black.  (Prof.  Jeffrey  Pokorak, Cornell Law Review, 1998).

A comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were white. (Prof. Jack Boger and Dr. Isaac Unah, University of North Carolina, 2001).

A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos. (Pierce & Radelet, Santa Clara Law Review 2005).

Interracial Murder Death Penalty Cases:

Black victim/White offender—12

White victim/Black offender—179

42% of death row inmates are black (compared to 12% of the overall population)

Blacks are 38% more likely to get the death penalty as whites who commit similar crimes.

Abolitionist Arguments:

1. Life is sacred…the sanctity of life is such that it precludes anyone from taking someone else’s life.
2. Capital punishment is implemented with a class bias.
3. The innocent may die…Errors seem inevitable.
4. Retribution (i.e. revenge) is uncivilized.
5. Capital punishment is more expensive than life without parole.
6. Capital punishment runs counter to the Judeo-Christianity.
7. Capital punishment is “state-sanctioned” murder.

Retentionist Arguments:

1.  Capital punishment is the only prevention against certain crimes.
2. Capital punishment balances the scales of justice.
3. Capital punishment deters crime.
4. Capital punishment is less expensive.
5. Capital punishment is necessary for catharsis.
6. Capital punishment is justified via Judeo-Christianity.
7.  Capital punishment is societal self-defense.

 

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