Wednesday, April 30, 2008

Argument of Racial Bias in Death Penalty Cases Misses the Point

I haven't seen one of these in a while, but apparently it is time once again to clue the opponents of the death penalty in on how those of us who support it view the issue. Sun Tzu said "know your enemy", and those who cite these disparity studies in an attempt to persuade are failing to follow his example, which is why their arguments continually fall on deaf ears. Here is the gist of the report:

"A 2003 Amnesty International report showed that although African-Americans are only 12% of the population of the United States, at that time they were 40% of the people condemned on death row. If this nation is not going to abolish the death penalty, it needs to institute a moratorium until we can figure out why these two death penalty systems have developed and what, if anything, can be done to prevent this clear racial bias from continuing."

At first glance that seems like an open and shut case. However, it is indisputable that economic and educational factors play an important role in quality of legal representation, as well as the likelihood of even being involved with such criminal situations. It is also a simple fact that economic and educational factors are skewed (primarily because of accidents of history IMO) against blacks. So any study of any difference in societal treatment between blacks and whites absolutely must control for those differences, else the poor/rich bias could appear to be a black/white bias.

The authors of the cited study frequently acknowledge this flaw, and yet ignore the implications. Here are but two of many examples I could cite:

"The link between poverty and race should not be overlooked. Pennsylvania’s Committee on Racial and Gender Bias in the Justice System, for example, pointed out in its March 2003 report that “issues of racial and ethnic bias cannot be divorced from the issue of poverty. Unless the poor, among whom minority communities are overrepresented, are provided adequate legal representation, including ample funds for experts and investigators, there cannot be a lasting solution to the issue of racial and ethnic bias in the capital justice system”.

A study into the Nebraska death penalty commissioned by the state did not find any
significant evidence of disparate treatment of capital defendants on the basis of race of defendant or victim, but it did find significant disparities based on the socio-economic status (SES) of the victim: “Specifically, since 1973 defendants whose victims have high socioeconomic status have faced a significantly higher risk of advancing to a penalty trial and receiving a death sentence. Defendants with low SES victims have faced a substantially reduced risk of advancing to a penalty trial and of being sentenced to death”."

So the studies have a serious flaw, as they fail to account for a major mitigating factor: economic status. But it stands to reason that there will be a racial component to sentencing, just like there is a racial component to many aspects of American life. It simply won't be as large as the uncontrolled studies imply. The question is what we do about it. This is not the answer:

"Given the disparities in both the federal and state capital punishment system, it is time to start asking the questions President Johnson posed forty years ago: 'what is happening' and 'why is it happening?' Until we get satisfactory answers to those questions, we should stop using the death penalty.

This sort of argument will always fall on deaf ears because death penalty proponents, by and large, are against the sorts of subjective and arbitrary decisions that are allowed to take place in our legal system. We don't think a judge or jury should be allowed to say Joe Black will be executed for murder, but John White will get life in prison. Those who think murder deserves the death penalty think ALL murderers should get the death penalty. If rape can get the death penalty, then ALL rapists should get the death penalty. We look at the data in these studies and conclude that the white murderers and rapists need to be executed more, not that the blacks should be executed less.

Ditto for the arbitrary exclusions that are allowed in the jury selection process. The easiest way to solve the problem of Group X being excluded from the jury pool (be they blacks, or Mensa members) is to dispense with the time-consuming and counterproductive jury selection process, not rant and rave that lawyers don't select jurors as we think they should. Give each lawyer 1 or 2 strikes to cover for when the defendant's brother was in the jury pool and get on with it. And yes, there are many of us who support the death penalty only as an imperfect pragmatic solution to our overcrowded prison system (and no, we don't agree with allowing 10 years of appeals either). Personally I'd rather see all the drug laws repealed and do away with the death penalty entirely.

But this article is about political persuasion, not what method of punishment is most effective or just. If you intend to persuade supporters of the death penalty to change their minds, arguing that it is inconsistently applied will persuade no one, since none of them support that in the first place. One might as well try to persuade atheists to believe the Bible is true by quoting the Bible.

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