President Biden’s Justice Department recently filed a brief asking the U.S. Supreme Court to uphold the death sentence of Dzhokhar Tsarnaev, who, along with his older brother, bombed the Boston Marathon in 2013.
Many would argue this case is the exact reason we need the death penalty: to punish the worst of the worst crimes. While the acts committed by Tsarnaev were indeed horrific, we embrace the thinking espoused by then-candidate Joe Biden, who pledged to eliminate the death penalty — a process plagued by racial disparities and wrongful convictions of the innocent. As prosecution leaders, we believe our criminal legal system is fully capable of punishing tragic crimes harshly and protecting our communities without resorting to this broken part of our criminal justice system. Indeed, capital punishment says more about us as a nation that it does about those we punish.
This week marks the 45th anniversary of the Supreme Court’s decision to reinstitute the death penalty after stopping all executions just 4 years earlier. In its opinion, the court said that one reason it chose to restart the machinery of death was to channel “the instinct for retribution” and people’s desire to respond to crime with “vigilante justice, and lynch law.”
Yet there is no more dramatic example of systemic racism in criminal justice than this punishment scheme. Historians have found that executions took hold in the early 1900s as a way to satisfy lynch mobs and quell criticism that the killing of Black people before cheering audiences was undermining America’s image on the world stage. As the era of lynchings slowly came to an end, the use of the death penalty accelerated.
This is especially true in the South. As Bryan Stevenson and the Equal Justice Initiative documented, the epidemic of lynching in the United States led to the murder of more than 4,000 Black people between 1877 and 1950. The South is also responsible for more than 1,200 executions in the past four decades, the great majority in our country.
Racism in capital cases persists to this day. In its final 6 months, the Trump administration executed 13 federal prisoners, seven of whom were people of color. Nearly 60 % of those still under a federal death sentence are people of color. And while Black Americans are only 13 percent of the nation’s population, they make up 40 % of federal death row prisoners.
Then there’s the issue of wrongful convictions. A new documentary, for example, offers compelling evidence that Carlos DeLuna was executed in Texas in 1989 for a crime he did not commit. His conviction was based on a cross-ethnic eyewitness identification made at night, a type of evidence that is notoriously unreliable. And both police and prosecutors, in their quest to see DeLuna executed, failed to turn over physical evidence and an audio recording pointing directly to another suspect.
The DeLuna case is far from unusual. One study found that at least 1 in 25 people sentenced to death in this country is likely innocent. That risk is unacceptable in a nation that aspires to be an example of justice and freedom to the world.
The list of problems goes on: In both federal and state cases, the death penalty is used disproportionately against people who receive deficient legal representation and who are poor, mentally ill, traumatized or intellectually disabled. For more than 40 years, many have tried to make America’s death penalty system just. If it were possible, we would have done it by now. It is long past time to end this failed experiment.
We cannot abide the continued use of the death penalty. It is our duty to ensure that our limited criminal justice resources are used to keep people safe. The death penalty does not. There is no credible evidence that it deters murder. We must stop wasting taxpayer dollars on an ineffective punishment that does little more than compound racial and social injustice.
We are not alone in our opposition to capital punishment. This past January, nearly 100 criminal justice leaders — including state and federal prosecutors, attorneys general, police chiefs, sheriffs and former judges — released a letter calling on the president to use his power to end the federal death penalty. And we know change is possible; this year, Virginia — which used the death penalty more than any other state — abolished it once and for all.
Biden can and must do something about our flawed capital punishment system. We urge him to keep his campaign pledge and end the federal death penalty now by commuting all federal capital sentences, directing the Justice Department to no longer seek these sentences and dismantling the government’s machinery of death. This is a necessary step on the road to addressing systemic racism. If we can do this, we will finally begin building the justice system that we all deserve: one grounded in equity, fairness and proven strategies to keep communities safe.
Source: Washington Post, Opinion, June 29, 2021. Karl A. Racine is the D.C. attorney general. Parisa Dehghani-Tafti is the commonwealth’s attorney for Arlington County and the city of Falls Church, Va. Miriam Krinsky is executive director of Fair and Just Prosecution.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
