Sociologists know that race matters in capital punishment, but the Supreme Court has refused to notice since a 1987 decision in McClesky v Kemp.
A Los Angeles Times survey of liberal legal scholars named McClesky one of the worst decisions since World War II. NYU law professor Anthony Anderson called it “the Dred Scott of our time,” referencing the 1857 decision that upheld slavery. Ohio State University Professor Michelle Alexander told me it was the Plessy v Ferguson of our time, referencing the 1896 decision to justify racial segregation. Justice Lewis Powell, who wrote the majority opinion on McClesky, later told his biographer that was one of two votes he regretted.
The legal compact demanded by the United States Supreme Court when it reinstituted capital punishment as a sentencing option in 1976 has been broken, repeatedly, not by convicts, but by hundreds of overzealous administrators of the nation's justice systems. In Texas, Georgia, Florida, and in the other states which continue to push capital punishment, the "law" in capital cases now is mostly used as a weapon -- not as a shield for the individual against the might of government. It is not justice under law. And it is certainly not equal justice under the law. It is instead far too often a perversion of justice -- and of the Court's well-meant precedent.
Evidently it has become so routine in the Lone Star State that the governor qua presidential candidate was fundraising in Jefferson County, Iowa on the night Buck was scheduled to die. I can't imagine a more solemn or important function for an elected official than presiding over an execution. But for Gov. Perry, it was just another day out of state on the campaign trail. He was available by cellphone.
It is probably folly to try to understand why one death penalty case captures the public imagination more than any other. But the Davis case illustrates so many of the growing doubts about the capital system, such as questions about the reliability of eyewitness testimony (as explained by Brandon Garrett), the grotesque levels of racial bias that infect the capital sentencing system, and the various types of police misconduct.
Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage. And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.
And so, as people are still put down like dogs in the land of the free -- despite the momentum for abolition -- capital punishment represents America's human rights blind spot. But really, this is about more than executions. Rather, it speaks to a nation that often pays lip service to upholding human rights, but debases and denigrates human life through its actions. The result is a callous culture of violence, neglect and disregard.
States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs.
There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death. Besides, the majority of costs are in the pretrial and trial.
According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.
Meanwhile, in Texas, the state's Democratic Party passed a platform calling for abolition of the death penalty. And Hank Skinner--a Texas death row inmate who was granted a stay of execution in November in order to conduct a DNA test--has been given the green light to proceed with the testing. Skinner's stay of execution came as a result of pleas from death row exonerees and abolition activists. The problem with DNA testing is that key evidence in the case is missing. How convenient.
And how typical of Texas, where a man named Cameron Todd Willingham was executed in 2004 for the arson murder of his three young daughters -- even though many believe no arson occurred. Another man, Carlos DeLuna, was put to death for a murder another man he resembled bragged about committing. Moreover, his innocence was proven posthumously by a Columbia law professor 23 years after the execution.
The authors pointed out that for every prisoner who was sentenced to death, there were 500 prisoners who were sentenced to imprisonment. And yet when the Supreme Court reviewed cases of a criminal nature, they gave disproportionate attention to death-penalty cases. Nearly half of all criminal cases that the Supreme Court reviewed concerned the death penalty, leaving insufficient judicial resources "to scrutinize the vast expansion of state punishment in the United States." The opportunity costs of reviewing death-penalty issues translated into insufficient resources to review other parts of the criminal justice system.
Tragically, not everyone who has been on Florida's death row was actually guilty. In fact, Florida reverses more death sentences than any other state in the country, releasing 23 death row inmates based upon post-conviction evidence of their innocence.
Now is the time that Florida must reform its criminal justice system by taking a closer look at what Florida's death penalty says about us as a civilization, as well as the 401 people who are currently on Florida's death row. Some argue and believe that having Florida's death penalty somehow discourages murder. Yet, the statistics tell another story. For instance, in 2010 the average murder rate in states with death penalties was 4.6 per 100,000 while the average murder rate for states without the death penalty was only 2.9 per 100,000.