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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