Death Penalty in California

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In April, 2003 Senator Gloria Romero (Dem-Los Angeles) called for a special commission to study the way the death penalty works in California.  According to the LA Times, Senator Romero was particularly concerned with “racial and geographic disparities in the imposition of the death penalty” (LA Times, April 23, 2003).  Similar concerns have been echoed by researchers and activists throughout the country.  David V. Baker found that “court efforts failed to eliminate the issue of race” in capital sentencing cases; Joe Strauss, Laura Langbein, and Alan Metelko found that anti-Black prejudice is a strong factor in White support for the death penalty; and Richard Dieter’s report, The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides found that African-Americans are overrepresented due to pervasive racism.  No wonder that in 2001, the American Civil Liberties Union (ACLU) asked its members to write US Senators and Congressmen asking for a moratorium on the death penalty because “the country’s death rows have… a disproportionately large population of African Americans” (ACLU Action Alert, 2001). 

But should we abolish a law because it does not treat everyone equally?  After all, a just law does not cease being just no matter how uneven its application and an unjust law does not become just because it applies to everyone equally.  If we abolish the death penalty, we should do so because it is a bad law not because it is unevenly applied.  Abolishing a law, because it does not apply to everyone equally, as the ACLU recommends, would undermine the very foundation of our legal system.

The danger becomes obvious when we consider that African-Americans are not the only group treated differently in the courtroom.  For example, one study indicates that “almost 90 percent of those convicted of violent crimes are males.”  Perhaps this is because more males commit violent crimes.  However, these statistics might also reflect the socially-held view that “crime is something men are expected to do because they are men and women are expected not to do because they are women”.  Thus, if we abolish a law unless we treat everyone the same way, we would have to abolish laws that punish violent crimes such as rape, theft, and murder.  Our legal system would collapse.

But there is more at stake than abolishing particular laws.  Our entire justice system is at stake.  In the Anglo-Saxon judicial tradition, all litigation is personal and adversarial; pitting one individual against another individual in attempts to address specific grievances.  Court cases do not, and are not meant to, resolve deep-rooted social problems such as racism although several studies have shown that racism plays a role in juries’ verdicts.  Despite this, we think of the courtroom as the place where the individual citizen pleads his case; not where the sociologist makes his policy.  What is more, we want our courtroom to live up to this ideal.

Yet, if we ask the court to regard a defendant as a member of a disadvantaged group rather than as an individual, we compromise this ideal.  At the same time we elevate the idea that the courtroom is where the experts decide how we ought to live our lives. 

Thus, if we decide to annul the death penalty (as I hope we do), let us do so because we, as individual citizens adjudge this law to be unjust; not because several studies indicate it is not applied to all people in the same manner or because expert opinion advocates a particular form of equality.