In The News…

In the News

Broken Beyond Repair


Published: November 29, 2010

You can only hope that you will be as sharp and intellectually focused as former Supreme Court Justice John Paul Stevens when you’re 90 years old. In a provocative essay in The New York Review of Books, the former justice, who once supported the death penalty, offers some welcome insight into why he now opposes this ultimate criminal sanction and believes it to be unconstitutional.

As Adam Liptak noted in The Times on Sunday, Justice Stevens had once thought the death penalty could be administered rationally and fairly but has come to the conclusion “that personnel changes on the court, coupled with ‘regrettable judicial activism,’ had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.

Police and prosecutorial misconduct have been rampant, with evidence of innocence deliberately withheld from defendants being prominent among the abuses. Juries have systematically been shaped — rigged — to heighten the chances of conviction, and thus imposition of the ultimate punishment.

Prosecutors and judges in death penalty cases have been overwhelmingly white and male and their behavior has often — not always, but shockingly often — been unfair, bigoted and cruel. The Death Penalty Information Center has reams of meticulously documented horror stories.

Innocents have undoubtedly been executed. Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants. And it has always been the case that the death penalty machinery is fired up far more often when the victims are white.

I remember reporting on a study several years ago by the Texas Defender Service, which represented indigent death row inmates. It mentioned a Dallas defense lawyer, who, reminiscing in 2000, said: “At one point, with a black-on-black murder, you could get it dismissed if the defendant would pay funeral expenses.” A judge, looking back on his days as a prosecutor in the 1950s, recalled being told by an angry boss: “If you ever put another nigger on a jury, you’re fired.”

Prosecutors cleaned up their language somewhat over the years, but the discrimination has persisted, along with the pernicious idea that white lives are inherently more valuable than black ones. Patricia Lemay, a white juror in a Georgia death penalty case that resulted in an execution, told me in an interview in 2002 that she had been nauseated by the vile racial comments made by other jurors during the deliberations.

Justice Harry Blackmun was 85 years old and near the end of his tenure on the Supreme Court when he declared in 1994 that he could no longer support the imposition of the death penalty. “The problem,” he said, “is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

Justice Blackmun vowed that he would no longer participate in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

In 1990, Justice Thurgood Marshall asserted: “When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery.”

Justices Blackmun and Marshall are gone, but the death penalty is still with us. It is still an abomination. Illinois has tried mightily to deal with a system of capital punishment that had, as The Chicago Tribune described it, “one of the worst records of wrongful capital convictions in the country.”

The sentences of 167 condemned inmates were commuted in 2003. Four others were pardoned and a moratorium on the death penalty has been in effect since 2000. But prosecutors continue mindlessly to seek the death penalty. And the system for trying murder cases remains a mess. As The Tribune wrote in an editorial just last week:

“Lawmakers still haven’t taken adequate steps to ensure that the death penalty is applied evenly across the state, or to guard against wrongful convictions based on errant identifications of witnesses or mistakes at forensic labs. False confessions and prosecutorial missteps are still alarmingly common.”

In the paper’s view, “Illinois must abolish the death penalty.”

And so must the United States.

A version of this op-ed appeared in print on November 30, 2010, on page A31 of the New York edition.


The policy being discussed is the heated debate about the death penalty. The article focuses on Paul Stevens the former Supreme Court Justice. He once supported the death penalty but has recently retracted his support due to the overwhelming amount of underlying discrimination associated with it. There is an overwhelming amount of derogatory statements made by jurors in death penalty cases. He also blames a lack of attention from lawyers, quoting Thurgood Marshall, Stevens shows his opinion that the death penalty id not follow the guidelines set forth by the Supreme Court in Gregg v. Georgia.

The theorist that I think would provide a useful perspective would be W.E.B DuBois, his perspective on the dehumanization of racism, like in The Philadelphia Negro, even though this article is talking about a different era  where racism is not as evident, it still seems to seep through and be illuminated through the interpretations of others. When he depicts the Negro problem he highlights some of the concerns that riddle our society today and contribute to the extensions of racism. In DuBois’s final word he remarks that the Negro is here to stay and that we should focus our energy on bigger issues by just accepting others. I think that is what should happen here, if the death penalty is so focused on the crime and punishment then that is what it should be about not about the race of the individual committing the crime.

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