Civil rights organizations and defense attorneys last month asked the California Supreme Court to invalidate the death penalty in this state as irredeemably racist. Around the same time, Alameda County Dist. Lawyer. Pamela Price announced that a federal judge had ordered her to review 35 cases her office had handled over the past three decades after uncovering evidence that prosecutors systematically excluded black and Jewish people from juries hearing capital cases.
As written, death penalty laws are race-neutral. Is the death penalty racist?
Of course it is. Evidence and experience show that there is racial bias at play at all levels of the criminal justice system, from arrest to jury selection to verdict. The disparities are particularly evident in death sentences. Black defendants were 4.6 to 8.7 times more likely to be sentenced to death than other defendants facing similar charges, according to a landmark study of thousands of murder and manslaughter convictions dating back to 1978. Latinos were between 3.2 and 6.2 times more likely to be sentenced to death. .
The disparity is even greater when the defendant was black or Latino and the victim was white or Asian.
All of this is documented, but also intuitive, after years of evidence showing that blacks and Latinos are arrested and sentenced to longer prison terms than whites for the same crimes. It is logical that the same prejudices appear in death sentences. The apparent exclusion of black and Jewish people from Alameda County juries is surprising only because evidence of it has emerged.
The petition to the Supreme Court contains voluminous data on racial bias in California's capital punishment system.
But in a sense, all that is beside the point.
The death penalty has been challenged on other grounds, for example because the various drugs and other instruments of execution cause unconstitutional levels of pain and suffering. But that's also beside the point.
Even if the state could carry out painless and anxiety-free executions and racial biases were eliminated, the death penalty would still be wrong.
It's wrong because it puts too much power in the hands of the government. Individual government agents, such as police officers, must sometimes use deadly force to protect others during accelerating crises, but there is no such justification for carefully planned and premeditated state homicide.
It is wrong because it is applied arbitrarily and is overtly political. Consider the statements and actions of former President Trump, who called for the death penalty for drug traffickers in 2018, then pardoned convicted drug trafficker Alice Johnson in 2020 after Kim Kardashian took up her cause, and now again calls for the execution of drug traffickers. drug traffickers. . Consider President Biden, who as a candidate promised to end capital punishment in federal cases but whose Department of Justice nonetheless continues to seek death sentences.
It is wrong because jurors who are qualified to hear arguments and weigh evidence to determine guilt are not qualified (nor is anyone) to weigh non-tangible elements such as moral worth, or to choose between life and death without inappropriate emotional considerations. . The fact that they do so is legally permissible but morally inconceivable.
The death penalty is wrong even when it is not imposed, because prosecutors use the mere possibility of execution to pressure defendants to plead guilty and accept life sentences, even if they are innocent. It is incorrect because prosecutors “death grade” jurors at the beginning of proceedings, excluding anyone who might have qualms about the execution, and because prosecutors are trained to use dehumanizing language (“monster,” “animal”) when They try to get jurors to choose death. . Even if a qualified death penalty juror chooses life in prison, the same qualities that made the jurors open to a death sentence may also have made them more likely to convict.
And sometimes those convictions are wrong. Seven Californians sentenced to death since 1973 were later exonerated. The Death Penalty Information Center names 20 people executed in southern and border states since 1989 who may well have been innocent.
Americans who favor capital punishment generally want it to be imposed, if at all, without factual error, pain, politics, procedural overreach, or racial bias. But that's just fantasy. The death penalty is inextricably linked to each of these evils and more.
California Governor Gavin Newsom vowed that no one would be executed on his watch and ordered the death row and execution chamber to be dismantled. But capital punishment remains in effect in California, and district attorneys continue to use it to unfairly extract guilty pleas from defendants, or to toughen juries by calling them death (although some, including George Gascón of Los Angeles and Jeff Rosen of Santa Clara County, they no longer do this and are trying to overturn the death sentences).
The petitioners who cite racism in California's death sentences are right and deserve credit for identifying an angle of attack that is not only fair but can work. The tragedy is that they need to do it. The death penalty is morally repugnant and manifestly unjust, even without the long and extensive history of racism in its application.
