1. Department of Criminal Justice California State University - Bakersfield CRJU 330 Race, Ethnicity and Criminal Justice Dr. Abu-Lughod, Reem Ali Color of Death Race and the Death Penalty

2. Introduction: n The constitutionality of the Death Penalty. The 8 th Amendment to the U.S. Constitution prohibits “cruel and unusual punishments”. But do we really know what constitutes a “cruel and unusual” punishment?. This issue has been left up the courts to decide n only when punishments involve torture or lingering death then it is cruel

3. n The Case of Furman v. Georgia: in 1972 Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death (Two other death penalty cases were decided along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death sentence for rape and murder convictions, respectively).

4. n Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments? n Conclusion n Yes. The Court's one-page opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution.

5. Impact of Furman: n The Court defied predictions that the death penalty would be abolished and instead decided to regulate capital punishment rather than abolish it n Other states responded to Furman by adopting new statutes that will narrow the discretion and avoid problems or arbitrariness and discrimination n Statutes were of TWO types: 1) the jury or judge imposing the death penalty of a defendant was convicted of first-degree murder, 2) judge or jury imposing the death penalty on defendants convicted of certain crimes, depending on mitigating or aggravating circumstances.

6. n GREGG V. GEORGIA:A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments. This case is one of the five "Death Penalty Cases" along with Jurek v. Texas, Roberts v. Louisiana, Proffitt v. Florida, and Woodson v. North Carolina. Jurek v. TexasRoberts v. LouisianaProffitt v. FloridaWoodson v. North Carolina Jurek v. TexasRoberts v. LouisianaProffitt v. FloridaWoodson v. North Carolina n Question Presented n Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?

7. n Conclusion n No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed.

8. n Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence's circumstances with other similar cases.

9. n Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.

10. n Justice Marshall argues that if the average citizen knew the facts of the case, he/she will find it shocking to his conscience and sense of justice. This is the Marshall Hypothesis. n Public attitudes: people believe that the death penalty is imposed arbitrarily because while some are executed others serve prison time for the very same crimes committed

11. n Also, while some support the death penalty, researchers say that these people are usually implying a genuinely harsh punishment for convicted murderers. n In general, whites support the death penalty more than blacks and Hispanics. (whites, AA, then Hispanics)

12. u Taking into consideration the race of the victim and the offender (p.264) u Explanations for disparate treatment 1. Conflict theory: that the law is designed in a way to protect the interests of the ruling class. Anything that threatens their power will be severely punished 2. The significance of the race of the victim rather than the victim-offender race dyad. Meaning that it matters more when the victim is white

13. McCleskey v. Kemp 1986 Executed in 1991 u McCleskey, a black man, was convicted of murdering a police officer during an armed robbery in Georgia and sentenced to death. In a writ of habeas corpus, McCleskey argued that a statistical study proved that the imposition of the death penalty in Georgia depended to some extent on the race of the victim and the accused. The study found that black defendants who kill white victims are the most likely to receive death sentences in the state. u Question Presented u Did the statistical study prove that McCleskey's sentence violated the Eighth and Fourteenth Amendments?

14. u Conclusion u The Court held that since McCleskey could not prove that purposeful discrimination which had a discriminatory effect on him existed in this particular trial, there was no constitutional violation. Justice Powell refused to apply the statistical study in this case given the unique circumstances and nature of decisions that face all juries in capital cases. He argued that the data McCleskey produced is best presented to legislative bodies and not to the courts.

15. The Death Penalty in the 21 st century u Opponents of the death penalty coupled with the defeat of the Racial Justice Act were arguing for the abolishment of the death penalty u Read examples page 283

16. u THE MOVEMENT TO REFORM THE DEATH PENALTY u Increasing access to post-conviction DNA testing and providing funding for DNA tests u Banning execution of mentally retarded people u Establishing standards on qualifications and experience for defense course, in death penalty cases u All these to increase confidence and trust in the justice system and ensure fairness

17. THE MOVEMENT TO ABOLISH THE DEATH PENALTY u System is flawed u Is discriminatory, and not fair and equal