Close to Death: Reflections on Race and Capital Punishment in America

Close to Death: Reflections on Race and Capital Punishment in America

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Even before I began representing people on death row, I was opposed to capital punishment. The logic of gratuitously killing someone to demonstrate that killing is wrong eluded me. We don’t rape those who rape, nor do we assault those who have assaulted. We disavow torturing those who have tortured. Yet we endorse killing those who have killed. The death penalty has always seemed to me to be a punishment rooted in hopelessness and anger. My own moral and religious background caused me to believe that each of us is more than the worst thing we’ve ever done. No one is just a crime. Punishment must be constrained by basic human rights. I also recognized before I became a lawyer that the criminal justice system was replete with arbitrary and unfair decision making, particularly for the poor and people of color. In the almost two decades that I have been working as an attorney for condemned prisoners, I have developed a far more direct and personal understanding of the degree to which this country’s capital punishment system is riddled with flaws and tainted with injustice. I have represented dozens of death row prisoners, most of whom were unconstitutionally convicted and unfairly sentenced to death. I’ve defended men, women, and children accused of capital crimes and had to confront the intense anger and complex issues these cases present. I have sat with scores of people who have been victimized by violence and death: family members of murder victims who have lost loved ones to crime, the mothers, fathers, sons, and daughters of executed prisoners, and an increasing number of decision makers who have become disillusioned by the process of state governments executing human beings. I have come to believe that whatever one’s views of the death penalty in the abstract, reasonable people of goodwill, if armed with the facts about how the death penalty is actually administered in this country, ought to conclude that the death penalty should be abolished. Criminal justice policy has been incident driven in the United States for many years. Crimes, sensationalized by the media, have resulted in policies that are uninformed by analysis and research. Policy makers have defended ill-conceived and irrational sentencing schemes by invoking public support for tougher sentences. The broader, long-term implications of these policy choices are rarely considered. This approach to sentencing has made the death penalty immune to rational analysis and discourse. Most supporters of capital punishment are not affected by its implementation in any practical way. They do not perceive the death penalty as a threat to their taxes or their pocketbooks, which results in a costless assessment of its value. When executions are impersonal and unexamined, Americans are free to consider capital punishment in a disembodied manner in which death-sentenced prisoners are stereotyped villains with no discernible humanity. Unless something sensational or atypical occurs, the condemned are executed out of sight with little attention and ever diminishing legal scrutiny. The family members of homicide victims are expected to perform a public role as active players in the prosecution and the implementation of punishment. Public policy and state punishment of an offender become a personal issue featuring the private tragedy of a particular victim, whose story is more or less important depending on the victim’s wealth, status, race, class, or “newsworthiness.” It is in this context that the death penalty has taken shape in America and become a defining feature of criminal justice in the United States. However, in recent years, media accounts of exonerations of death row inmates and reports about the unreliability of the capital punishment system have begun to bring some of the realities of the death penalty to the public consciousness. There is evidence that this new information is beginning to transform the public’s and decision makers’ views about the death penalty. In the last several years, dozens of innocent people have been released from death row after narrowly escaping execution. For every eight executions that have occurred in the United States since resumption of capital punishment in the 1970s, one innocent person has been discovered on death row and exonerated. The shockingly high error rate has prompted a retreat from the death penalty in some circles, even wholesale commutation of every death sentence by the governor of Illinois. But, perhaps inevitably, the national debate continues to focus on abstract concepts: Personal tragedies of unjustly condemned individuals are transformed into empirical data, which are then subjected to debates about the generalizability of the samples and the reliability of the survey techniques. Although such scrutiny of scientific method is self-evidently appropriate and valuable, what is often lost in the process are the vivid, personal narratives that can provide a crucial context for public understanding of the actual workings of the capital punishment system. The reality is that capital punishment in America is a lottery. It is a punishment that is shaped by the constraints of poverty, race, geography, and local politics. It is a punishment that has become notorious for its unreliability and unfairness. The death penalty in the United States has increasingly come to symbolize a disturbing tolerance for error and injustice that has undermined the integrity of criminal justice administration and America’s commitment to human rights. In this chapter, I describe the cases of some of the people I have represented and discuss what these cases reveal about capital punishment in America. I speak in particular about the influence of conscious and unconscious racial bias in the administration of the death penalty. I discuss some of my experiences in Alabama, the state in which I have represented many condemned prisoners and capital defendants. However, I draw on national studies to show that the problems I have witnessed are representative of the situation in other death penalty states as well. I begin with the case of Walter McMillian, which illustrates how the actions of the police, prosecutors, the bench, and a jury selected in a racially discriminatory manner can combine to produce a capital murder conviction and sentence of death for a person who was innocent.

Source Publication

Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case

Source Editors/Authors

Hugo Adam Bedau, Paul G. Cassell

Publication Date

2004

Close to Death: Reflections on Race and Capital Punishment in America

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