My entire life, I had always been a believer in retributive justice. As I began my bachelor’s program (Criminal Justice) with a focus on Constitutional Law, I believed that the only problem with the death penalty was that it was applied yet never used; thus rendering any deterrent effect null and void. It was not a diversion for other people.
Now mind you, I have come to different thoughts over the years and no longer believe in the death penalty (except in a very few specific types of DNA verified cases/convictions that I won’t go into now). As a MSW student, there was a discussion today in a class that really made me scratch my head. I have processed and researched my way through the notes I took today and offer this: the students at my school are very keen on discussing the prison industrial complex. They have a particularly different insight into it, from a social work perspective as I do, with a criminology perspective. Obviously, we now have different lenses, but I am coming around to some thoughts that are more in line with my true feelings and theirs, I think…
I digress. Damnit.
The point is the case: McCleskey v. Kemp, 481 U.S. 279 (1987) was brought up and I had never heard of it. The 25th anniversary of this ruling just passed. Which I think is interesting given all the media attention of the Trayvon Martin case and what will surely be a pivotal case in the years to come regarding George Zimmerman. In all my classes, in all my laborious years in law offices and school, not once did I hear of McCleskey v. Kemp. WTF
Is it because I went to school in Idaho? I am not sure, but probably.
In case you too, have never heard of it, here is the gist:
Warren McCleskey was a black man who was convicted of killing a white police officer. After being sentenced to death, McCleskey brought to the attention of the court the Baldus study, which showed that black “criminals” with white “victims” were sentenced to death in Georgia 4x more often than black on black criminals. Some results: (CP= Capital Punishment, B = black, W= white)
Defendants who kill W get CP in 11% of cases
Defendants who kill B get CP in 1% of cases
CP in 22% cases of B defendant, W victim
CP in 8% cases of W defendant and W victim
CP in 1% of cases of B defendant and B victim
CP in 3% of cases of W defendant and B victim
So black defendants who kill whites have greatest chance of getting CP.
He implied that this meant that his conviction and sentence violated both the Eighth Amendment and the “equal protection” clause of the Fourteenth Amendment. The Supreme Court basically stated that while they were skeptical of the Baldus study, they would apply the findings as rule of law and further stated that they must dismiss evidence of general racial disparities in sentencing, as “an inevitable part of our criminal justice system.”
Government sanctioned racial inequities?
Not in 1987.
Not in 2005, not in New Orleans.
I bet we couldn’t find 10 examples at least everyday in the last 150 years.
Especially not today.
The US is a “magical place” with roads paved with equality and fairness, intersecting justice.
Boo. Mr. McKleskey was executed by electrocution in 1991. Justice Lewis Powell, Junior, who wrote the opinion in his case wrote later that he regretted his decision and every death penalty opinion after that. Too late for Mr. McKleskey. Investigations later revealed enough evidence to have gotten his case retried, as the confidential informant was a police plant with non-eyewitness information. Too late.
Too many cases are realized wrong, too late. According to the Innocence Project:
There have been 289 post-conviction DNA exonerations in the United States, since 1989.
Races of those 289 exonerees:
180 African Americans
2 Asian American
4 whose race is unknown
I am not insinuating that Warren McKleskey was innocent or that DNA would have exonerated him. I do not know. I am merely using those stats to further illustrate the racial inequities in the judicial system. I could write a blog everyday about judicial inequities.
Capital punishment is not reparative. It is not restorative. It is punitive and retributive. It is revenge.
It is Code of Hammurabi. Eye for an eye. Tooth for a tooth. Life for a life.
Hate Crimes are defined by the FBI as:
“A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. For the purposes of collecting statistics, Congress has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.” Hate itself is not a crime—and the FBI is mindful of protecting freedom of speech and other civil liberties.”
I think a definite case could be made that as far as the FBI is concerned, sentencing courts could be guilty of hate crimes. The “supreme” court says racial disparities are “…an inevitable part of our criminal justice system.” The death penalty is not restorative justice. It is revenge. It is 4,000 year old bullshit.