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ANALYSIS: Research Supports Assertion that U.S. Death Penalty "Devalues Black Lives"

The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good. 

Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.

Political Analysis: Is Conservative Support the Future of Death-Penalty Abolition?

In a forthcoming article in the Journal of Criminal Law and Criminology, released online in July, Ben Jones argues that, despite the popular conception of death-penalty abolition as a politically progressive cause, its future success may well depend upon building support among Republicans and political conservatives. In The Republican Party, Conservatives, and the Future of Capital Punishment, Jones—the Assistant Director of Rock Ethics Institute at Pennsylvania State University—traces the ideological roots of the recent emergence of Republican lawmakers as champions of death penalty repeal to long-held conservative views. He writes, “there is a cogent and compelling conservative argument against the death penalty: it is incompatible with limited government, fiscal responsibility, and promoting a culture of life.” Jones says that for much of the 20th century, the death penalty was not a partisan issue, as Republican governors signed legislation abolishing the death penalty in Kansas in 1907 and Minnesota in 1911. Later, Republican governors commuted the sentences of all prisoners on death row in Arkansas in 1970 and in Illinois in 2003. Jones believes that Republican lawmakers’ increased interest in criminal justice reform “has created an opportunity to reframe the death penalty in a way that resonates with traditional conservative concerns.” Though Jones is uncertain whether the nascent Republican legislative opposition to capital punishment is “part of a longer-term trend,” he says, if it is, “Republican and conservative opposition will provide important opportunities—which otherwise would be absent—to advance efforts to end the death penalty in the U.S.” One opportunity may be in Utah, where conservative Republican state senator Stephen Urquhart led an effort that came close to achieving legislative repeal of the death penalty in 2016. A July 19 Salt Lake Tribune editorial argued that “[e]nding the death penalty would save money and save souls.” On the same day, Rethlyn Looker, the Utah state chair for Young Americans For Liberty, wrote in a Tribune op-ed, that "as fiscal conservatives," the cost argument to abolish capital punishment "should resonate with us" because, "in Utah, it costs at least $1.6 million more to sentence a person to death than to sentence them to life in prison without the possibility of parole." But, Looker writes, the "most compelling reason" to oppose the death penalty is still "the fact that we simply can't trust the government to get something this serious right." She says, "[f]or all of the reasons we distrust the government to do the right thing in so many other areas, we should distrust the government to end a person's life."

American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 

ARTICLES: Excluding Blacks from Death Penalty Juries Violates Rights As Citizens

An article in the most recent issue of the Virginia Quarterly Review examines the practice of excluding African-Americans from jury service, particularly in death penalty cases in North Carolina. In Bias in the Box, Dax-Devlon Ross notes, "Alongside the right to vote, the right to serve on a jury is an enduring pillar of our democracy....Nevertheless, there is perhaps no arena of public life where racial bias has been as broadly overlooked or casually tolerated as jury exclusion." Ross traces the history of civil rights litigation that secured blacks the right to participate in juries, but he also shows the continued use of strategies to remove them from service. In particular, the repeal of North Carolina's Racial Justice Act in 2013 removed an important protection of equality in jury service. Before the act was rescinded, a special court reduced the sentences of four death row inmates because of patterns of racial bias in jury selection. In one case, a prosecutor's notes described potential jurors as "blk wino - drugs" and as living in a "blk, high drug" neighborhood. Ross quotes a number of potential black jurors who wanted to serve in North Carolina but felt they were excluded because of their race.

The Angolite Features Louisiana's Death Row Exonerees

An article in the latest edition of The Angolite, a magazine published by prisoners at the Louisiana State Penitentiary in Angola, tells the stories of the ten men who have been exonerated from death row in that state. The piece prominently features Glenn Ford, the state's most recent inmate to be freed. Ford spent 30 years on death row before being released in 2014. Among the other cases described is that of John Thompson, who was freed after it was revealed that prosecutors intentionally withheld evidence from his attorneys. A jury awarded Thompson $14 million in damages, but the U.S. Supreme Court overturned the decision, saying the prosecutor's office could not be held accountable for not training their staff based on this single violation of the law. After describing all ten cases in which the wrongfully convicted men spent a total of 120 years on death row, the article concludes, "These are symptoms of a criminal justice system in dire need of repair....These are dangers of the ultimate punishment that can never be taken back, even if down the road innocence is proven." 

China Rethinking the Death Penalty

According to a recent op-ed about China in the New York Times, the world leader in executions is having second thoughts about the death penalty. Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, said the annual number of executions in China dropped by half from 2007 to 2011, as more offenders were given "suspended death sentences," which are generally reduced to life sentences. According to a 2008 poll in three provinces, public support for the death penalty is about the same in China (58%) as in the United States (60%), but China carries out an estimated 3,000 executions per year, many more than the U.S. (The U.S. ranks 5th in the world in the number of executions.) There is concern in China about the uneven application of the death penalty: 69% of respondents in the poll said they believed that poor offenders were more likely to be executed than rich ones, and 60% said they thought innocent people could be wrongfully convicted. China's Supreme People's Court recently overturned the death sentence of a woman who killed her husband after suffering years of domestic abuse, perhaps signaling a broader trend toward less use of capital punishment.

A Turn-Around in Texas's Use of Death Penalty

A recent op-ed by Jordan Steiker, endowed professor of law and Director of the Capital Punishment Center at the University of Texas, highlighted the declining use of the death penalty in that state. AlthoughTexas leads the nation in executions, death sentences and executions per year have dropped sharply since the 1990s. Prof. Steiker wrote, "In 1999, Texas juries returned an astounding 48 death sentences. Since 2008, however, Texas has annually sent fewer than 10 defendants to death row.  Executions in Texas have declined as well, from a high of 40 in 2000 to fewer than 20 since 2010." While describing the "perfect storm" of conditions that led to Texas's high use of capital punishment in the past, the op-ed also noted changes that have led to less death-penalty use, such as the creation of a statewide defender's office to represent death-sentenced inmates in state post-conviction and the broader disclosure of evidence to the accused. Prosecutors have increasingly accepted plea agreements to life imprisonment without possibility of parole, saving taxpayer dollars that would have been spent on expensive capital trials and appeals.

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