Introduction
Death penalty which had been abolished in 1970s was quickly restored during 1970s itself. There have been charges of racial discrimination in the application of death penalty both before and after abolition and restoration of death penalty. Research on the subject suggests a pattern of racial discrimination. Since 1976, percentage of blacks executed has been 35 while, the blacks form just 12 % of the total population. Research indicates that blacks are four times more likely to receive death penalty than if the defendant is white. In 2000, percentage of blacks on death row statewide were 46 % in Alabama, 36 % California, Florida 36 %, Illinois 63 %, Maryland 72 %, Pennsylvania 63 %, Texas 41 % and Virginia 39 %. . A defendant is most likely to receive death sentence if the victim is white as 82 % of those on death row currently are blacks involved in crimes against white victims. Two thirds of juveniles sentenced to death were people of color. In states of New York and California, death penalty can be imposed for intentional murder which can be committed instantaneously without premeditation. Lack of adequate lawyers for defense and juries may be one of the reasons . It is the stand of the American Civil Liberties Union that” the capital punishment system is discriminatory and arbitrary and violative of constitutional against cruel and unusual punishment “.This paper proposes to examine whether this is true and if so ,reasons for the same and how it can be mitigated.
According to Stephen (1994-95), death penalty is on the increase after the lifting of moratorium in 1960s and 1970s. More than 3,000 men, women and children on death row are all poor, racial minorities for having committed crimes against white victims. Majority of them are mentally impaired and victims of physical, sexual and psychological abuse in their childhoods.
Americans support death penalty but not the capital sentencing system which victimizes people of color as it emerged in the Gallup’s Death Penalty Poll held in 2011. There is no statistical evidence to show that blacks are imposed death penalty more frequently than whites for similar offenses. However, overt racism continues to influence capital sentencing. Racism influences decision-making in subtle ways that implicit biases are evident in how prosecutors, judges and jurors consider defendants and crimes committed by them. There is strong evidence in research showing that Americans are prejudiced by implicit racial bias against blacks though they would not admit to being so. Implicit bias can produce automatic cognitive process that is bound to turn out to be an implicit prejudicial decision making. Implicit bias is difficult to detect and it is more prevalent today than in the past. It is more pernicious than today’s overt racism. There are several researches that have found that charging decisions, convictions and death penalties are racially biased.
In a 1987 decision of the U.S. Supreme Court in McCleskey v Kemp, it has been accepted that while biased decision-making can affect sentencing, remedial measures are in the hands of the legislature and not the judiciary for correcting the systemic problems. Although Kentucky and Carolina have taken the initiatives, the former’s law requires that capital defendant must make claim before commencement of trial since law applies to prosecutorial charging decisions. Kentucky Racial Justice Act has not resulted in much litigation. North Carolina on the other hand strongly protects capital defendants. However, in 2012, the State amended the law to be more prosecution-friendly than being defendant-friendly. In spite of this position, critics hold that the law effectively puts an end to capital punishment.
In McCleskey v Kemp, the U.S. Supreme Court did not accept the statistical evidence of racial disparities in capital punishments. In this case, the defendant was convicted of armed robbery and murder. In appeal, the defendant argued that Georgia capital sentencing system was racially biased by presenting a sophisticated statistical evidence to show that the State’s capital sentencing was violative of Eight and Fourteenth Amendments. The statistical study called Baldus Study brought to light blatant racial disparities in the capital sentencing system of Georgia State. The court rejected on the ground that such a study should show an exceptionally clear proof of racial bias while making equal protection claims. However, dissenting judge Brennan expressed the view that majority judges were afraid of “too much justice” since such a study if accepted would open the gate for challenges against all aspects of criminal sentencing.
It has been argued that there have been three types racial discrimination in respect of capital sentencing from the research on the capital sentencing for the last thirty years when compared with the treatment of similarly placed death-eligible offenders. The most common discrimination is “race effect” in which capital charging and sentencing decisions are more punitive where white victims are involved than with no white victims. The second most common discrimination is the harsher punishment of cases where there is a black or minority defendant against one or more white victims compared to the punishment of defendants in all other similarly placed defendant/victim combinations. This is known as “minority-defendant/white victim” discrimination in the criminal justice system. The least common disparity is the more punitive punishment of black and minority defendants compared to the treatment of similarly situated white defendants regardless of the race of the victims involved. Supreme Court Justice Byron White’s has reasoned that there is the greatest risk of “racial bias” existing in the highly hyped minority accused/white victim cases as have emerged from analysis of sixteen cases involving multiple victims. At the same time, research findings show that there is no such acute racial bias among the armed forces.
There is purposeful “systemic” discrimination and purposeful discrimination in “individual cases”. The statistical proof of systemic bias is circumstantial and inferential. In individual cases, race of the defendant or victim is a “motivating factor”, “substantial or significant factor,” or “but-for-factor”. On the other hand, systemic discrimination is based on inference of purposeful discrimination. A good approach would be to recognize that the statistically controlled studies estimating “racial disparities among cases with similar levels of culpability are the most reliable”.
The charge of racial discrimination in death sentencing is not without criticism. It is the “flawed methodology, biased source or both” that has been responsible for portraying the capital sentencing system as deeply racist.
Despite the arguments and counter arguments, there is an undeniable phenomenon called aversive racism. Social scientists label these subtle forms of racism as “aversive racism” as emerged from their 20 years of research. Aversive racism is not an intentional form of bias which manifests in many white Americans in spite of the fact that they are wedded to egalitarian values and they do not succumb to prejudices as posited by Dovidio and Gaertner. Aversive racists do not wish to discriminate and believe in treatment for all. The scientists state, “aversive racism is rooted in normal, often adaptive, psychological process involving cognitive categorization, the desire to maintain power, and a largely automatic internalization of societal values and beliefs” . It is has been explained that aversive racists are not really conscious of negative feelings while they are able to justify their decisions in non-racial terms. Prof Charles R. Lawrence, a legal scholar states that discrimination in today’s world has resulted from “subconscious instincts and motivations rather than conscious, deliberate decisions to exclude or to harm”. His observation is not exclusively from employment context but on broader perspective..
Conclusion
Thus, it maybe concluded that at the height of civilization and civilized human behavior, it cannot be argued that there is overt racial discrimination though it can be argued that the above said aversive racism mostly discussed in the situations of discrimination in the workplace may be a fact that should be treated as real. It is therefore left to the legislatures to take care not to let racial discrimination creep in the capital sentencing system as stated at the outset echoing the decision of the Supreme Court in McCleskey v Kemp.
References
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