The U.S. federal government and many state governments have capital punishment. These laws only apply to homicide. Prosecutors have full discretion in deciding which defendants should be eligible for capital punishment. If a prosecutor decides to go for a death penalty conviction, he will take the defendant to a capital trial. If he decides not to, the defendant will go to a normal trial where the maximum punishment is life without parole.
Since the 1970s there have been an equal number of black and white murder victims. Defendants accused of killing a white person made up 80 percent of individuals on death row. The number for those who killed blacks is only 20 percent. If you kill a white person, the likelihood that you go to a capital trial is 45 percent. For blacks that number is 17 percent. Women almost never go to capital trial.
It is extraordinarily unlikely that the U.S. will correct for this discrimination by eliminating the death penalty. However, there is another solution.
Death penalty laws should be changed in the federal government and states with the death penalty. The government should single out particularly heinous crimes for which the death penalty is mandatory. When those crimes are committed, the trial will become a capital trial. For example, if a rape-murder were one of these crimes, every rape-murder that went to trial would go to a capital trial.
The death penalty is especially severe and deserves special consideration. The death penalty is uniquely grave from the perspectives of the defendant and society. Former Supreme Court Justice John Stevens noted that, for the defendant, the death penalty is different than any other punishment in both its severity and its finality.
On a societal level, the punishment is also unique. The action of the state taking the life of one of its citizens is substantially different from any other legitimate state action. In the words of Stevens, “it is more severe, and its consequences more unchangeable.”
Before the state takes the life of a defendant, it must have solid reasons to do so. It may not do so based on arbitrary reasoning. By this standard, the death penalty is failing in America.
Places with the death penalty have, on balance, higher crime rates than places without it. The number of capital eligible cases has not gone down where the death penalty exists. The current death penalty neither deters more crimes nor creates a safer society.
The death penalty is not even cost efficient. It costs more to execute a person than it does to put a person in prison for life.
Clearly the overbroad nature of the death penalty is producing far more harm than good. As a society, there must be a conscious effort to focus the death penalty to make it more effective and to decrease its application to only when absolutely necessary. A society forced to deliberate more on the death penalty will most certainly improve fairness.
Prosecutorial discretion is unfair. Currently, it is functionally a different crime to kill a black person than it is to kill a white person. If a woman commits murder, she is not committing the same crime as a man who commits murder. And if the backbone of America’s justice means anything, it means that in the eyes of the law, all people are equal. Victims and criminals are no exception.
The proposed plan corrects for this unfairness. Prosecutorial discretion is the source of the inequity of the current system. Prosecutors will no longer have the luxury of picking and choosing people for the death penalty on the basis of race.
Society will limit the death penalty substantially because it currently applies to all murders. If states and the federal government wanted, they could have imposed a mandatory sentence of death on persons who committed murder. Clearly, they think that such a punishment would be harsh and overbroad. Thus, the chances are that the proposed policy will limit the grounds of the death penalty.
This will prevent people from being sent to death row because of a racist prosecutor. Increased faith in the criminal justice system will most certainly follow a less sexist and racist death penalty.
Perhaps the best reason to replace the current system with the proposed system is that, as it stands today, the death penalty is unconstitutional.
In Furman v. Georgia the Court ruled that in order for a law to not violate the Eighth Amendment, the law must be even-handed, non-selective and non-arbitrary.
An evenhanded law must be fair to all parties. Presently, the gender disparity makes the application of the law inequitable. This plan is equitable because no one can be disadvantaged on the basis of his sex, race or victim race.
The term “non-selective” means that the law must not be limited in action or effect. The current statute is clearly creating different actions, or punishments, for the same crime. It is thus selective. Similarly, the effect disproportionately disadvantages blacks and men. The effect of prosecutorial discretion selects certain individuals for harsher punishment. Since the proposed plan creates a narrow venue for the death penalty, and capital cases are applied uniformly, it is non-selective and therefore constitutional.
Non-arbitrary means not restrained or limited in the exercise of power. Prosecutors in death penalty cases have unrestrained power. This is generally okay because there isn’t systematic discrimination. That said, the death penalty is a special case with special consideration and pervasive evidence of discrimination.
Uniform application cuts down on the arbitrariness that exists because it restrains the course of actions of the prosecutor. This is especially important because now prosecutors are abusing their power.
In addition to violating the Eighth Amendment, today’s death penalty also violates the Fourteenth Amendment. In Furman v. Georgia, the Court ruled that victim race was a basis for unequal protection under the law. So if I give one guy a harsher punishment for the same crime just because he killed a white person, then I violate the Equal Protection Clause.
Additionally, gender is a protected class in America. The status quo disproportionately discriminates against men. Neither of these provisions exists in a system of uniform application.
Liberal democracies have a duty to punish only when there is good reason to do so. And when the state issues punishments, it must be both fair and consistent with the supreme law of the land.
Today, the death penalty is broken. To fix it, there needs to be a massive overhaul. A deliberative and uniform death penalty is that overhaul.
