Race, Racism and the Law 
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Capital Punishment

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  Initial Country Report (Sept, 2000). 

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Capital Punishment. The U.S. Supreme Court has held that the U.S. Constitution does not prohibit capital punishment, so long as adequate substantive and procedural protections are in place. Gregg v. Georgia, 428 U.S. 153 (1976). Accordingly, each state may decide whether to authorize the death penalty, so long as their statutes meet the constitutional standard set out in Gregg and subsequent cases. At the end of 1998, thirty-eight of the fifty states and the Federal government provided for capital punishment. Capital punishment is currently not provided for in twelve states (Alaska, Hawaii, Iowa, Maine, Massachusetts, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin) and the District of Columbia.

A sentence of capital punishment can be sought and imposed only for the most egregious crimes. In the first instance, these crimes, and the applicable procedures, must be specified by the legislature in an appropriate statute. That statute is subject to judicial review for compliance with the constitutional guarantees of due process, equal protection, and protection against cruel and unusual punishment. In 1972, the Supreme Court set aside sentences of death imposed under Texas and Georgia statutes holding that the imposition of death in the cases at issue constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. Furman v. Georgia, 408 U.S. 238 (1972). Subsequently, the states and the Federal government revised their capital punishment statutes to meet the substantive and procedural criteria required by the Court's analysis. In 1976, in upholding such a revised statute in Gregg, the U.S. Supreme Court effectively ended a four year moratorium on the imposition of death sentences. Nonetheless, judicial challenges to sentences and statutes remain commonplace.

Generally, the death penalty cannot be imposed unless a serious crime resulted in the death of the victim. Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982); Eberheart v. Georgia, 433 U.S. 917 (1977). Moreover, the fact that the crime resulted in death is not sufficient to trigger the sanction of capital punishment; the crime must also have attendant aggravating circumstances. These restrictions upon the imposition of the death penalty arise out of the constitutional requirement that the punishment not be disproportionate to the personal culpability of the wrongdoer, Tison v. Arizona, 481 U.S. 137 (1987), and the severity of the offense, Coker v. Georgia, 433 U.S. 584 (1977).

The public debate over capital punishment in the United States includes claims about the incidence of racial and ethnic bias and discrimination. Blacks are disproportionately more likely to be sentenced to death and executed than other racial or ethnic groups. From 1977 (the year after the Supreme Court upheld the constitutionality of revised State capital punishment laws) to 1998, a total of 5,709 persons entered prison under a sentence of death. During this period, the U.S. general population was approximately 10-12 percent Black; however, among those entering prison under a death sentence during this period, 2,347 (41 percent) were Black. Of the 500 persons executed during these 22 years, 178 (36 percent) were Black.

As of the end of 1998, 3,452 prisoners were under sentence of death in the States or Federal system. California held the largest number on death row (512), followed by Texas (451), Florida (372), and Pennsylvania (224). Nineteen prisoners were under a federal sentence of death. During 1998, 30 states and the Federal prison system received 285 prisoners under sentence of death. Of the 285 new admissions, 132 (46 percent) were Black and 38 (13 percent) were Hispanic. During 1998, 66 men and two women were executed. Of those executed, 40 (60 percent) were White; 18 (27 percent) were Black; eight (12 percent) were Hispanic; one was American Indian and one was Asian.

In McClesky v. Kemp, 481 U.S. 279 (1987), the U.S. Supreme Court considered the implications of a study indicating that the death penalty in Georgia was imposed more often on black defendants and killers of White victims than on White defendants and killers of Black victims. The Supreme Court held that this study failed to establish that any of decision makers in the defendant's case acted with discriminatory purpose in violation of the Equal Protection Clause. The Court further held that, at most, the study indicated a discrepancy that appeared to correlate with race, not a constitutionally significant risk of racial bias affecting Georgia's capital-sentencing process; therefore, it did not establish a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

While capital punishment continues to be supported by a majority of the citizens in a majority of states in the United States, a significant number do not support it. Some opponents believe capital punishment is not only unfairly applied but also ineffective as a deterrent to criminal activity. Throughout the country, many remain concerned about racial and geographic disparities in the application of the death sentence. Other stated causes for concern include: inadequate representation of counsel, lack of a fair hearing at which exculpatory evidence can be submitted, and the unavailability of exonerating evidence until long after the trial. Despite these concerns, the U.S. government remains confident that the death penalty is imposed only in the most egregious cases and only in the context of the heightened procedural safeguards required by our state and federal constitutions and statues.

 

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Equality Before Tribunals ] Discrimination by Law Enforcement ] Overrepresentation in the criminal justice system ] Disparities in Sentencing ] [ Capital Punishment ] Prisons ] Article 5(b) Security of Person ] Article 5(c) Political Rights ] Article 5(d) Other Civil Rights ] Article 5(e) Economic Social and Cultural Rights ] Article 5(f) Access to Public Accommodations ]
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Parent Level:
Introduction ] General Report ] Legal Prohibition ] U.S. Reservations, Understandings and Declarations ] Compliance with Specific Articles ] Article 1 - Racial Discrimination ] Article 2 ] Art 3 Condemn Racial Segregation and Apartheid ] Article 4 Eliminate Incitements or Acts of Discrimination ] Article 5 Equality Under the Law ] Article 6 Assure Effective Protection and Remedies ] Article 7 Adopt Measures ] Conclusion ]
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[Race and Racial Groups] [Citizenship Rights]  [Justice and Race] [Patterns of Basic Needs] [Intersectionality Issues] [Human Rights]
 

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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).