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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

The pursuit of capital punishment for Dylann Roof is a step backward

Dylann Roof
Dylann Roof
On Nov. 7 in Charleston, S.C., a federal court will begin selecting a jury in the death penalty prosecution of Dylann Roof, the accused killer of 9 African American worshipers at the Emanuel African Methodist Episcopal Church. At first glance, the notion of a white man facing the death penalty for murdering black people in the South - in a killing inspired by the murderer's racist views - may seem like a marker of racial progress.

It isn't - and those who champion civil rights should not celebrate this moment. Roof's crime was surely heinous, and his racism was repugnant. But supporters of racial equality and equal treatment under the law should support Roof's offer to plead guilty and serve a sentence of life without the possibility of parole.

How can it be that a lifelong civil rights lawyer such as myself would take this position? Because the death penalty cannot be separated from the issue of racial discrimination, especially in the South. The history of slavery and lynching left deep scars in the black community, and the current death penalty does not fare much better. More than 8 in 10 of the executions carried out since the death penalty was reinstated in 1976 have occurred in the South. Blacks make up more than 1/3 of the 1,170 defendants executed in the region, with most convicted of murdering a white victim.

Given the racial disproportion inherent in the modern application of the death penalty, it is no surprise that most African Americans (including me) oppose the death penalty, a position that would also disqualify most of them (and me) from serving on the jury in Roof's case.

As a result, if the Roof trial continues on its present course, a jury will be chosen that represents only part of the community. Those who oppose the death penalty on principle will be struck from the pool of jurors by the presiding judge. Those who express doubts about the death penalty will likely be struck by the prosecution. The resulting jury will have fewer blacks, fewer women and fewer people of faiths that oppose the death penalty than a jury selected at random from the residents of Charleston. That cannot be a desirable outcome in such an emotional and racially charged case.

Neither would the adversarial proceeding necessitated by a refusal to accept Roof's offer to plead guilty and accept a sentence of life without the possibility of parole. Once the trial begins, there will be a detailed recounting of the worst day this community has ever experienced. It will be the prosecution's duty to portray this multiple murder as gruesomely as possible in order to secure a death sentence. Family members may be called to the stand to describe precisely what they went through that day and how it affected them.

Likewise, the defense will be obligated to do everything in its power to lessen Roof's culpability. This is how our adversarial process works, but it is not necessary here. Without the agony of trying to decide between life and death, a sentencing proceeding that followed a guilty plea could pay tribute to the victims, focusing on the value of their lives and the consequences of their loss. All family members could voice their pain, regardless of their view on the death penalty. It would not be an easy day, but far better than months of focusing only on Roof, followed by years of appeals and uncertainty.

Attorney General Loretta E. Lynch has allowed this case to proceed as a capital prosecution until now, but a new decision point is coming soon. Most criminal cases settle before trial because it is in the best interests of the entire community. That could happen here; the offer is already on the table. The attorney general need only agree.

After the racially inspired attack on the parishioners of Mother Emanuel, as the church is known, South Carolina took the bold and important step of permanently lowering the Confederate battle flag from the state capitol grounds. This powerful symbol - perceived by many as the embodiment of racism and discrimination - had to go.

With the death penalty, the Justice Department now has the power to lower another flag that has torn communities apart along racial lines. Capital punishment in this case may appear to be just retribution for Roof's unfathomable crime. Yet the real-life operation of the death penalty suggests that its application to Roof would only pave the way for future cases in which the death penalty is invoked to harm the very community on which he inflicted so much pain.

Source: Washington Post, Opinion, Wade Henderson, August 27, 2016. Mr. Henderson is president and chief executive of the Leadership Conference on Civil and Human Rights.

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