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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Louisiana’s Color-Coded Death Penalty

Louisiana prison, 1965. Credit Leonard Freed/Magnum Photos
Louisiana prison, 1965. Credit Leonard Freed/Magnum Photos
The last time a white person in Louisiana was executed for a crime against a black person was in 1752, when a soldier named Pierre Antoine Dochenet was hanged after attempting to stab two enslaved black women to death with his bayonet.

This is just one of many grim facts in a new report describing the history of capital punishment in Louisiana and analyzing the outcome of every death sentence imposed in that state since 1976, when the Supreme Court reversed its brief moratorium on executions and allowed them to resume.

Racism has always been at the heart of the American death penalty. But the report, in the current issue of The Journal of Race, Gender, and Poverty, drives home the extent to which capital punishment, supposedly reserved for the “worst of the worst,” is governed by skin color.

In Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man. Regardless of the offender’s race, death sentences are six times as likely — and executions 14 times as likely — when the victim is white rather than black.

The Supreme Court has been aware of racial disparities like these for a long time. In a case decided in 1987, the justices were presented with a study finding that people accused of killing white victims in Georgia were four times as likely to be sentenced to death as those accused of killing black victims. But the court, in a 5-to-4 opinion by Justice Lewis Powell, said that given the many procedural safeguards in capital trials, the study “does not demonstrate a constitutionally significant risk of racial bias.” (After retiring, Justice Powell said he should have voted the other way.)

The new report shows that Louisiana’s death penalty isn’t only consistently racist; it’s also profoundly error-prone. Of the 155 death sentences the state has handed down and resolved since 1976, 28 resulted in executions. The other 127 — or 82 percent — were later reversed. Since 2001, two people have been executed, while 53 have had their death sentences reversed.

These reversals are usually the result of major errors at trial that violate the defendant’s constitutional rights, such as prosecutorial misconduct, improper jury instructions and incompetent lawyering. In most cases, the discovery of these errors resulted in the defendants’ being removed from death row and receiving lesser sentences. In nine of the cases, though, the defendant was fully exonerated of the crime and cleared of all charges.

Louisiana’s record is terrifying, but other capital punishment states aren’t much better. Nationwide, the reversal rate for resolved death sentences is 72 percent, and while the average exoneration rate for death row inmates in other states is 1.8 percent (less than half of Louisiana’s rate), that still translates to a national total of 156 innocent people sentenced to death and later exonerated since 1973.

Even if capital punishment could be imposed with zero risk of racial bias or error, it would still be brutal, immoral and ineffective at deterring crime — as most countries have found. But with bias and error endemic to the death penalty in this country, how can the Supreme Court continue to uphold its constitutionality?

Source: The New York Times, The Editorial Board, May 9, 2016

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