Death Is Different ... for Some
| Publication year | 2018 |
| Author | By Alexandra James |
By Alexandra James*
The Editors of the Criminal Law Journal take great pride in publishing the following article, which was authored by Alexandra James, a law student at Loyola Law School, Los Angeles. Ms. James won one of five Honorable Mention Prizes in the 2016-2017 Competition for Student Papers in Criminal Law and/or Criminal Procedure, sponsored by the Criminal Law Section of the California Lawyers Association.
The judges of the writing competition were impressed by the quality and caliber of entries in this year's competition and offer their gratitude and encouragement to those students, from law schools throughout the country, who submitted articles. All law students are cordially invited to participate in the 2017-2018 Competition. www.calawyers.org/Sections/Criminal-Law/Student-Writing-Competition
The use of the death penalty in the United States has been challenged for decades. It has been the subject of intense debate because of the persistent racial discrimination evident in its application since the 1972 landmark case of Furman v. Georgia. Even after forty years of changes to death penalty law, this country is still experiencing many of the troubling issues that troubled the Court in the first place.
Have the Supreme Court's post-Furman reforms mitigated or exacerbated the racially discriminatory application of the death penalty in the United States? So far, the guided discretion method has failed to mitigate the issue of racial discrimination in the application of the death penalty. There is ample evidence of racial discrimination against defendants from arrest to execution and discrimination based on the race of the defendant and the victim. Furthermore, African Americans continue to be overrepresented in the prison system, especially on death row, and underrepresented in jury pools. Finally, although "guided," juries still have enormous discretion in deciding whether or not to impose a death sentence. Racial discrimination in our country is so deeply rooted and pervasive in our criminal justice system that death penalty reforms—while well intended—simply have not worked. As this paper details, the only thing that will cure racism in the death penalty system is abolition of the death penalty. Despite best efforts of the courts, nothing else has succeeded.
Racism in the determination and imposition of the death penalty has been commonplace in the United States for decades. Many scholars have opined that the current death penalty practices are a direct result of lynching murders in this country.1 For decades, these killings were used to subjugate black defendants.2 Victims of these public deaths were "routinely riddled with gunfire, tortured, and burned."3 The stereotypical black man ". . . was equated with the predatory, the savage, the animalistic, the hyper-sexualized . . ."4 and that association saturated American culture. Black men were "demonized" and thought of as "more deserving of a death sentence."5 States like Georgia actually had written, statutory differences for crimes based on the race of the defendant and/or victim.6 Crimes where no death occurred at all, such as rape, were punishable in varying degrees depending on the races of the defendant and victim.7 Rape of a white woman was punishable by death if committed by a black person, but only punishable with prison time if committed by anyone else.8 Rape of a black woman was punishable by a fine.9
In the decades preceding Furman, African Americans received less legal protections in the courtroom as well. For example, African Americans often did not get the attorney services afforded to them under the Constitution. In Powell v. Alabama, the case of the Scottsboro boys, the defendants were not effectively represented and thus denied their right to counsel.10 The only effort made by the court was the appointment of "all members of the bar" to arraign the defendants, with the expectation they would continue in their service.11
However, the public outcry against the use of the death penalty and of racial discrepancies in death penalty application was soon heard throughout the country. In the years prior to the Supreme Court's decision in Furman v. Georgia, there was a significant decline in executions and death sentences.12 Many states abolished the death penalty all together and there was public and political denunciation of the death penalty by various groups, including the Department of Justice.13
In 1972, the case of William Furman made its way to the Supreme Court's docket. There was nothing particularly unusual about the case to suggest that it would produce such a pivotal decision. The defendant, William Furman, an African American male, was convicted in a Georgia state court of murder for the shooting death of a victim during the course of a residential burglary.14 He was sentenced to death. The Supreme Court granted certiorari to review the claim by Furman that his death sentence was cruel and unusual in violation of the eighth amendment and unconstitutional under the fourteenth amendment.15
In a 5-4 decision, the Supreme Court held that the death penalty in its then current form was in violation of the eighth and fourteenth amendments. This conclusion was based largely on the "untrammeled discretion that [was] delegated to sentencing juries."16 Each of the five justices prepared a separate opinion, citing different reasoning.17 They all, however, relied on the argument that the death penalty was being imposed in an arbitrary manner.18 Justice White commented that there was "no meaningful basis for distinguishing between the cases resulting in execution and those which did not."19 Other justices likened the death penalty to "being struck by lightning," observing that "the death penalty was applied sparsely, selectively, and spottily to unpopular groups."20
Unfortunately, while this case had a very apparent racial aspect, the Court did not discuss it in detail or base its reasoning on the clear disparate treatment.21 Justice Marshall spoke the most on the issue of race in the death penalty, noting that African Americans were "executed far more than whites in proportion to their percentage of the population."22 He continued, arguing that a sentence of death delivered is "unusual if it discriminates against [a defendant] by reason of his race, religion, wealth, social position or class, or if it is imposed under a procedure that gives room for the play of such prejudices."23 Instead, the Court chose to focus on the arbitrary procedure and the fact that there was no way to differentiate death-sentenced cases from other cases.24
The decision sparked what most thought would be a permanent halt to the use of the death penalty in the United States.25 Several states went to work to amend their death penalty statutes in efforts to rectify some of the concerns discussed in Furman.26 The Supreme Court ultimately permitted state law procedures that included either weighing requirements or the finding of aggravating circumstances before a death sentence could be delivered.27
In 1976, the Supreme Court decided the case of Gregg v. Georgia. Defendant Gregg was convicted of the murder and robbery of two men.28 He was sentenced to death.29 While a familiar set of charges, this case was slightly different because the defendant was a white male. Making a decision for death against a white male, supported the facade that race was not an important issue in the application of the death penalty. After state appeals affirmed his death sentence, Gregg appealed to the Supreme Court of the United States, arguing that a death sentence was cruel and unusual in violation of the eighth amendment.30 He also presented a fourteenth amendment argument.31
In a 7-2 decision, the Supreme Court upheld his death sentence, ratifying Georgia's new statute for determining a death sentence.32 They held that Georgia's statute "assured the judicious and careful use of the death penalty" because of its new requirements.33 The new statute outlined a bifurcated system, requiring guilt and penalty phases to be conducted separately.34 It further allowed defendants to put on mitigating evidence available to them to be considered by the jury, but did not require the jury to find any such evidence to grant mercy.35 Additionally, it required specific jury findings of aggravating factors and comparison of the crime at issue to other similar crimes.36 The Court believed that these reforms would "negate the jury's ability to wantonly and freakishly impose a death sentence."37 This case ended the nationwide death penalty moratorium and encouraged a number of states that had not done so already to resolve their death penalty statutes to line up with Georgia's system.38
[Page 2]
After the Supreme Court's decision in Gregg v. Georgia allowed executions to resume nationwide, the United States experienced exponential growth in the use of the death penalty. Our country went from seeing one or two executions per year in the late 1970s and early 1980s, to its peak of ninety-eight executions in 1999.39 This increase in the number of executions can be attributed partly to accelerated appeals processes.40 The state of Texas, whose narrowing standards were geared towards finding a defendant death eligible, was responsible for nearly one third of the executions in 1999.41 This spike in the delivery of death sentences by juries and the carrying out of the executions that lead up to the 1999 peak demonstrated widespread support for the death penalty.
However, in a familiar turn of events, the extensive support dwindled. The result of the Court in Furman not directly addressing the issue of race "started the Court down a path of analyzing the nature of punishment without regard to race."42 These frustrations again brought the Supreme Court to a head in 1985, when the case of...
To continue reading
Request your trial