| DISCRIMINATION AND THE DEATH PENALTY
�We have three classes of homicide� I was told by the chief of detectives in a large southern city. If a n____ kills a white man that�s murder. If a white man kills a n____ that�s justifiable homicide. If a n____ kills another n____ that�s one less n____.� (Raymond Fosdick, American Police Systems, 1920) Review of history/background discussed in first half of course: Before the Civil War � the Slave Codes were discriminatory, but executions were relatively rare. After the Civil War - the "Jim Crow" system and the massive surplus populations of freed slaves in the south, the massive influx of immigrants in the north, and the migration of �settlers� to the west led to a huge upsurge of both legal executions and lynchings, along with the genocides against Native Americans.. After 1900, as the west was finally conquered and as immigrants assimilated in the north, the executions, lynchings, and genocides decreased except in the south, leading to the southernization and racialization of both lynching and the legal DP. For two decades after WW2 (the 1950s and 1960s) the Civil Rights Movement successfully led a broad attack on racial discrimination in the south, which led to the decline and eventually the end of the Jim Crow system. The DP in the south was a key part of the Jim Crow system, focusing on blacks accused (often falsely) of crimes and other offenses against whites. Because of party political alignments at the time, the Federal government and federal courts were very reluctant to challenge discrimination in the south, and were mostly an obstacle to change. As part of the CRM successfully challenging discrimination from �outside the system� (through marches, demonstrations, and confrontations with racist authorities), the Moratorium campaign was a successful outside the system attack on the racist DP (appealing virtually every racist death sentence in the Federal courts), and the result was the end of executions and later the Court ruling in Furman v. Georgia declaring the DP unconstitutional. Revival of the DP in the mid 1970s was part of a much larger white conservative backlash against the CRM, with a more conservative Supreme Court falsely promising to create a new DP without discrimination. As death sentences from the new DP began to mount (mostly in the south) it quickly became apparent that the patterns of discrimination had not changed, and the Court was soon challenged to keep its promise. Despite the overwhelming evidence of continuing massive discrimination in Georgia (and in virtually every other state that has been studied), in 1987 the conservative-controlled Court upheld Georgia�s new DP in a bitterly-divided 5-4 vote in McCleskey v. Kemp. The Overwhelming Evidence of Continuing DP Discrimination The research/statistical evidence of continuing DP discrimination will be discussed in detail in class and posted on the powerpoint for this topic. Why and how does DP Discrimination happen � Institutional Discrimination (ID)? The classic forms of racial discrimination involved open and legal dual systems (like the Jim Crow system) and were based on openly racist rationales. As the Jim Crow system was dismantled (primarily by the Federal Courts) the dual systems didn�t disappear, rather they became less open as they were increasingly embedded in the white-dominated cultures of the legal system (police culture and court culture). Over time, the dual systems became routinized in the composition, policies, practices, and procedures of police and courts, which on the surface appear to be fair and equitably applied. ID is most visible in the outcomes of processes in the systems, including hiring decisions, police activities, and court decisions, and is often �invisible� to workers in the systems and thus often unintentional, which leads to denial that it exists. The basic patterns of ID related to the DP are discussed one of the readings for this week. The "Racial Justice Acts" and the politics of the DP In McCleskey v. Kemp, the conservative Court majority justified the decision by pointing out that there was no evidence or allegation of particular discrimination against the defendant, that the death sentence was not disproportionate when compared to other sentences for murder in Georgia, and that the apparent racial disparities (the outcomes) were simply an unintended by-product of discretion in Georgia�s legal system. Thus the Court majority rejected the concept of ID and refused to recognize the outcomes as an indicator of discrimination. They went on to suggest that state legislatures deal with the problem of disparities. The Racial Justice Acts are pieces of model legislation that would allow for DP defendants to challenge death sentences if race played any part in charging decisions or other decisions in the process. Most importantly, they provide for the introduction of statistical evidence to support claims of discrimination, which is not presently allowed by most courts. A Racial Justice Act has been adopted by only one state, Kentucky, so far, and it failed to pass in the US Congress. Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |