Here, the results indicate that the odds of receiving a death sentence in a Black victim case are on average 97.3% lower than are the odds of a death sentence in a White victim case (i.e., 1-.027 or 97.3 %), controlling for the other variables in the analysis.

- Glenn L. Pierce & Michael L. Radelet, “Death Sentencing in East Baton Rouge Parish, 1990-2008” [to be published in a forthcoming issue of the Louisiana Law Review]

Again, from a new study to be published soon in the Louisiana Law Review, yet another confirmation about how racism fuels the death penalty.

If only the Supreme Court in their jurisprudence would weigh practical consequences of their death penalty decisions. Along with the Framers’ intent, historical context, textual interpretation and precedent, there’s also “purpose” and “practical consequences” to consider.

The 14th Amendment clearly calls for “equal justice under law” – yet here in East Baton Rouge Parish in the Deep South former, black-lynching slave state, is this whopping, blatant, crying-to-heaven pattern of so valuing the lives of White victims over the lives of African Americans. That the chances of prosecutors seeking the death penalty for the murderers of Black people is virtually nil. A 97.3 per cent value discount rate is  very large, indeed.

In practice it says your-life-doesn’t-count-for-beans, so we’ll hardly ever seek the ultimate penalty for anyone who terminates your (miserable, troublesome, not-worth-the-trouble) life.

What’s the original purpose of the death penalty, what did it set out to achieve when it was put in place 30 plus years ago? So , how is it actually playing out in practice on the ground?

If justices on the United States Supreme Court would remove their ideological blinders in “interpreting” the Constitution to include practical consequences, they would end the death penalty tomorrow morning at 9:00 AM.

Truth springs up from the ground” – Psalm 85

For the last twenty years I’ve been watching at close range the bizarre and zany way the death penalty comes down on some and spares others. Theory about how the death penalty is supposed to be applied – who deserves to die and who should be imprisoned instead – is one thing; what happens on the ground, in practice, is quite another.

So, imagine my joy upon hearing that the abstract theory folks up in the tower – the American Law Institute consisting of 4,000 judges, lawyers, and law professors – have disavowed their own 1962 Model Penal Code.

What the ALI set out to do in the Model Code – or so they thought – was to provide an even-handed, useable set of criteria for juries to follow in capital cases. It was the intellectual framework that lulled us into thinking that we had a reliable process, that gave us – or, at least, many among us – hope that we could have systematic, fair, reasonably predictable guidelines to help juries decide when their fellow citizens deserved to die.

Late last year, the ALI admitted that their Model Code has failed.

This is huge, a tectonic shift. It was the ALI’s model, issued in 1962, that provided the intellectual framework which the Supreme Court used to reinstitute the death penalty in 1976 in Gregg v. Georgia. They all thought, then, that there was a balancing act courts and juries could follow, a balancing act that would correct the wild arbitrariness in the application of the death penalty and the way it came down so disproportionately on poor people and racial minorities.

But after 30 years of trying to make the death penalty work, the ALI, like Justice Harry Blackmun in 1994, decided to chuck the whole thing, calling it “irretrievably broken”. They cited the large number of innocent people wrongly sentenced to death and the continuing extreme arbitrariness in its application.

Consider: Two people can commit almost identical murders; one gets death and the other doesn’t. This means there’s no systematic way to apply the guidelines, and so local culture and prejudices play a huge role in determining who “gets it” and who doesn’t.

The ALI also noted that having judges and prosecutors elected doesn’t help fair and even-handed administration of the Code because politics gets in there, and pleasing constituents gets to play a more important role than following the constitutional protections to assure justice.

The broken core

Here’s the heart of why the Model Code doesn’t work and can never work: it all hangs on two opposing “irreconcilable constitutional commands”, as the ALI put it. Those commands are bound together in the phrase “guided discretion”. The intent of guided discretion was to put an end to the arbitrariness while allowing for the uniqueness of individual circumstances.

All murders are terrible, so who should get the death penalty? The Code said that juries need to weigh the terribleness of the murder, the “aggravating circumstances”. Was it heinous and cold-blooded and premeditated? Was it done in a particularly vicious, horrible, evil way? These questions were meant to guide juries in deciding who deserved death.

Maybe you can see the problem coming. See all those adjectives? Big problem, especially given the guideline that only the “worst of the worst” murders – not ordinary, garden variety murders – should get the ultimate penalty of death. In practice nobody knows what the Sam Hill that means. In the end, juries follow hunches or gut feelings, or whatever pulls people to decide things.

And that’s only the beginning of the difficulty with “guided discretion.” Here’s the other half of the irreconcilable commands: “discretion”. The guideline issued by the Supreme Court is that juries can consider mitigating circumstances of a person’s life when deciding whether the death penalty is warranted. Human beings have a way of showing up in a unique way, which means their actions are unique, influenced by an endless number of variables. Juries were to take these variables into account.

So, juries not only have to consider the facts of the crime but also the infinite number of factors that influence human beings to commit acts. And the sky’s the limit when it comes to mitigating circumstances: childhood abuse, genetic propensities such as fetal alcohol syndrome, age, mental acuity, family relationships, and so on, and so on. It’s infinite, and so, ultimately, not measurable.

After almost 50 years, that’s what the ALI finally recognized. What we, on the ground, have seen all along. The Model Code looked good on paper, but there’s just no systematic way to follow its guidelines.

Even better, you have the chance to hear Juan speak about his own experience. If you’re in the Louisiville area or in Indianapolis in January, get along to one of Juan’s talks. Here’s where you can hear him speak:

• Monday, January 11, 6:30 p.m. University of Louisville School of Law, Louisville, KY.
• Tuesday, January 12, 12:30 p.m.-1:30 p.m. University of Indiana School of Law, Indianapolis, followed by screening of documentary “Juan Melendez 6446″ at 4:30 p.m. (also at U of I law school).
• Wednesday, January 13,  7:00 p.m. at Marian University, Indianapolis.
• Thursday, January 14, Central High School, Louisville at 12:45 p.m.

For more information about the Indiana events, contact Will McAuliffe, director of INcase.

Like many other states WA faces a severe budget crunch this year, so the bill will focus on taking the extravagant amount of money used to maintain a death machine and devote it instead to real help for murder victims’ families, solving cold cases, and doing catch up on the huge backlog of prisoners awaiting DNA tests.

A key part of the organizing strategy will be to involve college students in the three-year  campaign of repeal.

Whenever we talk budget I always emphasize that financial resources are not simply a “practical” issue, but rather a deeply moral issue. Martin Luther King, Jr. used to say a budget is a moral document.

The opening paragraph of the article reads:

In the early 1800′s an Englishman would be hanged for stealing a shirt. By the end of the 1900′s, growing concern for individual rights had caused the death penalty to disappear from the United Kingdom and nearly everywhere else in the Western world. Two exceptions are Belarus and the United States, although this year New Mexico became the 15th state to outlaw capital punishment.

In 2008 there were official reports of 2,390 executions in 25 countries:

• China 1,718
• Iran 346
• Saudi Arabia 102
• United States 37

Then follows a list of other countries that do at least one execution. Among them are Syria, Sudan and the United Arab Emirates. What’s sobering is looking through the list of countries who killed fewer of their citizens than us: Pakistan, Iraq, Afghanistan and North Korea among them.

The parting shot form the article:

The practice of the death penalty is strong in culturally conservative areas – Japan, Saudi Arabia, Texas – and totalitarian regimes.