AMERICAN DEATH
Timothy J. Floyd, J.D., who has argued before the U.S. Supreme Court, examines the death penalty system in the U.S. and our ideal of "Equal Justice Under Law."
Written by Timothy J. Floyd, J.D.
The death penalty is an increasingly significant issue in American public life. The year 2000 saw the state of Texas set a record for executions by one state in a year. The federal government is now sentencing people to death and is set to resume executions for the first time in nearly 40 years. There are more people on death row nationally than in any time in our history.
Yet, at the same time, an increasing number of voices have expressed reservations about the death penalty. Gov. George Ryan of Illinois has declared a moratorium on executions in his state, citing concerns about the number of innocent persons who had been wrongfully sentenced to death. Conservative commentators such as George Will and Pat Robertson have expressed doubts about the death penalty in this country.
In such a climate, all citizens have an obligation to think through their position on the death penalty. But if we are going to deliberate moral justifications for the death penalty, we mustn’t stop with determining whether capital punishment is morally justifiable in the abstract, or whether the death penalty can ever be justified. If we wish to think seriously about the death penalty in America at the turn of the millennium, we must analyze the death penalty as it actually exists and is carried out today.
Although many express support for the death penalty on the grounds of deterrence, there is no reliable evidence that the death penalty prevents murder. In fact, the states without the death penalty have markedly lower murder rates than do states with the death penalty. Instead, the death penalty today is more often justified upon retribution grounds: that some persons commit such heinous acts that the only just response is to take their life. The modern American death penalty is designed to select the worst of the worst - the most depraved murderers who commit the most heinous crimes - for society's ultimate punishment.
How well are we doing in this task? Unfortunately, the death penalty in America today is not necessarily imposed upon those who commit the worst crimes.
Lawyers who lack the skills, resources and commitment to handle such serious matters often defend poor people accused of capital crimes. There are numerous cases in which the poor were defended by lawyers who lacked even the most rudimentary knowledge, resources and capabilities needed for the defense of a capital case. Death sentences have been imposed in cases in which defense lawyers had not even read the state's death penalty statute, referred to their clients by a racial slur, were intoxicated during trial, or slept through part of the trial. Since 1973, in large part because of inadequate representation at trial, 93 people have been freed from death row after proof surfaced that the defendant was actually innocent of the crime.
But there is another disturbing failure in our death penalty system. Studies reveal an overwhelming body of evidence that race plays a decisive role in the question of who lives and dies by execution in this country. Race influences which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries that determine the sentence. Racial effects have been shown not just in isolated instances, but in virtually every state and over an extensive period of time.
The federal government will soon resume executions after a 40-year hiatus in federal executions. A study conducted by the U.S. Department of Justice at the request of President Clinton was released on Sept. 12, 2000. The report revealed that 80 percent of the cases submitted by federal prosecutors for death penalty review in the past five years have involved racial minorities as defendants. In more than half of those cases, the defendant was African-American. Of the 24 people on the new federal death row, only three are white. Yet racial minorities commit fewer than half of the homicides in this country.
We may never agree as to whether the death penalty is justifiable in the abstract or as a matter of principle. But surely we can agree that a death penalty system in which persons are chosen for execution based upon the quality of their lawyers or upon the color of skin falls far short of our ideal of "Equal Justice Under Law."
Timothy J. Floyd is the J. Hadley Edgar Professor of Law at Texas Tech University's School of Law and serves as defense counsel in the first case in the nation under the Federal Death Penalty Act of 1994. The case was argued before the United States Supreme Court in February 1999.
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