Hungary's beleaguered 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.

Clearly, Europe 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 Proclamation.

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!

Errors, Mistakes, and Arbitrariness

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.

Elected judges, 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."

Race, particularly 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 alike.

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 than another."

The subjective 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 enforcement professions.

"Now that 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 friends.

State the Case, Clearly

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 penalty case.

· Require states to inform juries of all sentencing options, including the option to sentence a defendant to life imprisonment without the possibility of parole.

· Provide those who are proven innocent after an unjust incarceration some measure of compensation.

· 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.

Everybody commits 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"

Semantic arguments 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, discriminative…."

It is true that individual African Americans are arrested, tried, condemned and executed, "based on…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" about it.

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.

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