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The U.S. Can't
Handle the Death Penalty
Gypsies, or Roma, constitute 5% of the population but account
for around 60% of the nation's male prison inmates. The penal system
of Romania, home to the world's largest concentration of Gypsies, appears
to have been designed mainly for the purpose of keeping the Roma out
of circulation. In Spain, the descendants of the women who bequeathed
Flamenco dancing to humanity represent just 1.5% of the population,
yet comprise 25% of female prisoners.
has a problem dealing with the presence of Gypsies, a people of Indian
origin whose numbers were nearly halved by Hitler with the enthusiastic
assistance of many locals during Nazi occupation. Romania's Gypsies
were only freed from slavery in 1864, a year after our own Emancipation
It is a certainty
that, were the death penalty legal in Hungary, Romania and Spain, Gypsy
bodies would be piling up like cordwood. The continent's racial record
tells us that, absent the prohibition, white Europe would be unable
to restrain itself from executing Gypsies in ghastly numbers, under
any and all pretexts available. The abolition of capital punishment
throughout Europe has surely saved many thousands of Gypsies from the
beastliest impulses of their neighbors.
Here in the nation
that invented the word "lynching" and never passed a law against
this practice of ritual, communal murder, the people are once again
beseeched to reconsider the death penalty. The latest American appeal
to reason is a cautious document, presented in tones that negotiators
might use to talk a crazed gunman out of killing his hostages. The report,
issued by the Justice Project, all but pleads for a pause in the juggernaut
of death. Think about what you are doing, it advises the guardians of
the criminal justice system. Be careful, you might wind up executing
innocent people. Take a deep breath. Check yourself, man!
Entitled, A Broken
System, Part II: Why There Is So Much Error in Capital Cases, and What
Can Be Done About It, the exhaustive study expands on a 2000 report
that documented a shocking 68% rate of reversal of death verdicts due
to trial error. In language that seems strangely clinical, the report
blames political pressures to boost the volume and speed of executions
- "the overproduction of death penalty verdicts" - for bringing
the capital punishment process to the brink of collapse.
common in the South, are most zealous in their haste to execute. Incompetent
lawyers and police and prosecutors who suppress evidence contribute
vastly to what the report calls "mistakes" and "errors."
the race of the victims of murder, is at the heart of the crisis.
In those states where whites become nearly as much at risk of murder
as Blacks, capital verdicts skyrocket. States with large Black populations
lead in capital verdict "error."
The study, captained
by Columbia law professor James S. Liebman, urges that capital punishment
be reserved for "the worst of the worst" crimes. Less capital
verdicts, fewer "errors" and "mistakes."
The study is a worthy exercise. Still, the howling beast craves dark
meat - and isn't that the real problem? Professor Liebman and the Justice
Project are clearly opposed to the death penalty as it is practiced
in the United States. And we understand that the word "error"
carries a somewhat different meaning in legal language than when uttered
by laymen. But the word intent is plain to lawyers and non-lawyers
The death penalty
is intended for disproportionate use against Blacks. Comparatively
speaking, whites who are sentenced to death are those convicted
of "the worst of the worst" murders. This is precisely what
studies like Liebman's reveal. A 1998 investigation of Georgia's application
of the death penalty, for example, showed that African Americans were
more than four times as likely as whites to be sentenced to die "even
when controlling for the many variables which might make one case worse
judgment of white America is and has always been that the killing of
a white person is a more heinous crime than the murder of a Black. People
are charged and sentenced, accordingly. This is not "error"
in any meaningful sense of the word. We assume Liebman knows this, of
course, but feels compelled to appeal to the presumed decency of the
national audience, or to the sense of order and efficiency of the law
explanations for the problem [of massive errors] have been identified
and a range of options for responding to it are available, the time
is ripe to fix the death penalty, or if it can't be fixed, to end it,"
reads the summation of the report.
The Justice Project
has labored long in the vineyards of, well
seeking justice. It
deserves praise and support. Consider this, then, a discussion among
State the Case,
No honest and informed
person believes that the death penalty in the U.S. can be "fixed"
- if the meaning is to administer the penalty without regard to race.
American dispensers of punishment are no more likely to become color-blind
than are the Hungarians who pack their jails with Gypsies. The crucial
difference is, the Hungarian government can no longer put its despised
dark folks to death. (Nevertheless, the Roma are periodically subjected
to lynchings all across Eastern Europe, proof that the prohibition against
official execution is a necessity, lest the state join in the carnage.)
There is no "range
of options" available in the U.S., and the "problem"
was not "explained" in the voluminous Justice Project report.
Rather, outcomes of the capital system were catalogued and described.
"Errors" were enumerated. Good suggestions were offered that
would, if heeded, tend to decrease the death row population and, thereby,
reduce the number of people wrongfully executed.
The question is:
Does this strategy, which holds out the possibility of reform in the
American administration of death, work? Or, does it allow death's defenders
to listen politely, promise to consider the suggestions, and then carry
on as usual until, perhaps, the sheer weight of lethal "mistakes"
and accumulated "errors" forces the process to a halt? Does
the deliberate decision not to present a clear and unmistakable
position on the death penalty save more lives than a straightforward
declaration of the truth: that race renders the U.S. criminal justice
system incapable of fairly meting out death, the one penalty that is
irreversible? Most importantly, which tactics promise to mobilize the
most people against capital punishment?
The facts arrayed
by the Justice Project lead inevitably to the conclusion that abolition
is the only answer. Why, then, the final fuzzification?
From the perspective
of the condemned, that's a no-brainer.
Real flesh and
blood human beings are facing death, right now. (1,702 condemned whites,
1,578 Blacks, 95 Hispanics, Asians and Others, as of April 2001.) Clocks,
not calendars, mark the time. Thousands more are in or about to enter
the pipeline to oblivion. The Justice Project seeks allies for passage
of the Innocence Protection Act, sponsored by both Republicans and Democrats
in House and Senate versions. The Justice Project website provides a
succinct description of what they believe the legislation will accomplish:
- Ensure convicted
offenders can request DNA testing on evidence from their case that
is in the government's possession to prove their innocence.
- Help states
provide professional and experienced lawyers at every stage of a death
- Require states
to inform juries of all sentencing options, including the option to
sentence a defendant to life imprisonment without the possibility
- Provide those
who are proven innocent after an unjust incarceration some measure
- Make sure the
public has more reliable and detailed information regarding the administration
of the nation's capital punishment laws.
This bill is a
litmus test for the existence of human decency on Capitol Hill. But
it is all about innocence. Most people on death row are guilty as charged,
as are most people in prison. Hungarian Gypsies aren't saints, either.
crimes. The organs of the state - the police, courts and prisons - sort
out who is charged with what, how they will be tried, and which punishment
will be administered. Racist states render justice moot for the guilty
and the innocent, perpetrators and victims. In the United States, Blacks
are killed by the state in numbers so disproportionate that the legalism
"arbitrary punishment" is exactly the wrong way to describe
the phenomenon. There is nothing arbitrary about the racial output of
the American criminal justice system; it does precisely what it is designed
to do: incarcerate huge numbers of African Americans, while killing
a relatively large fraction of them for dramatic effect.
The Deadly "Understanding"
are often silly, but death is as serious as it gets. It is difficult
to carry on a productive dialogue with our allies if we cannot agree
on core realities.
The U.S. practice
of capital punishment is not "arbitrary," a term defined as
"based on or determined by individual preference or convenience
rather than necessity
." Two words offered by the Merriam-Webster's
Collegiate Dictionary as opposites of "arbitrary" much more
closely describe the actual workings of American justice: "calculating,
It is true that
individual African Americans are arrested, tried, condemned and executed,
individual (police and judicial) preferences or
convenience," precisely as the dictionary describes. For the falsely
accused, this seems arbitrary, a case for Barry Scheck and the Innocence
Project.But Black and brown majorities in American prisons and death
rows are the result of remarkably consistent police, prosecutorial and
judicial practices across the width and breadth of the nation, stretching
back into the mists of time. As a phenomenon, there is nothing "arbitrary"
The late jurist
and scholar Leon Higginbotham described a "common understanding"
which, he wrote, "created a simple 'universality of the rules'"
by which white state power dealt with Blacks. During slavery and to
the present day, this "common understanding" served to "subject
blacks to an inferior system of justice with lesser rights and protections
and greater punishments than for whites."
Capital crime lawyers
and their death row clients need all the material and political help
we can provide in sorting through the esoterica of judicial "errors,"
and "mistakes." "Arbitrary" is an arcane concept
of law, useful in the courtroom. But the rest of us must be vigilant
and consistent in what we are about: building a movement to snatch the
tools of death from the hands of American racists.
Racism has rendered
this nation unfit to handle capital punishment. That is the incontrovertible
truth. Shout it.
Sources that contributed
to this commentary:
Shades of Freedom,
A. Leon Higginbotham, Oxford University Press, 1996
Campaign for Criminal
Justice Reform, The Justice Project
on Gypsies, Open Directory Project
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