The State’s Capital Crimes

Against the Current, No. 81, July/August 1999

The Editors

WHILE MORE THAN 100 countries have abolished the death penalty by law or practice, after a decade-long banishment, the United States resurrected it in the 1970s.  Its restoration is part of the “get tough on crime” campaign-despite the fact that no study has ever found the death penalty a “deterrent” to crime.

During this quarter century nearly 500 people have been executed, including thirty mentally retarded people and nine individuals executed for crimes they committed as juveniles.  Despite the fact that executing people who have committed crimes as children is a violation of the International Covenant on Civil and Political Rights, which the United States signed in 1977, twenty-four states either have no minimum age for the death penalty or set it lower than eighteen.  Since 1990 only six countries have executed people for crimes they committed as juveniles: Iran, Nigeria, Pakistan, Saudi Arabia, the United States and Yemen.

The 1994 Federal Death Penalty Act classifies more than sixty crimes as “death eligible” while thirty-eight states permit the death penalty for certain crimes.  So far this year alone almost fifty people have been executed in the United States; the total number of death row prisoners now stands at more than 3,300.  Yet since the restoration of the death penalty seventy-nine men and women sentenced to death have been proven innocent and released-nearly one for every six executed.

While advocates of the death penalty maintain that the exonerated “prove” the system “works,” several came within days of being executed.  Most were not freed by the appeals and habeas process but by “outsiders” who continued to investigate.

The habeas process has been made more difficult with the passage of the Effective Death Penalty Act of 1996 (EDPA).  Essentially, the act permits only one constitutional challenge.  Additionally, under the EDPA, federal courts must accept state court determinations about federal law that are not “unreasonably wrong.”  Thus the EDPA places an enormous burden of proof on prisoners, many of whom had inadequate defense in the first place.

Recent events have begun to shake U.S. public opinion’s support for the death penalty, and its confidence in the basic fairness of the police and court system:

Police.  Recent police brutality cases in New Haven, Connecticut, New York City and Riverside, California have drawn public demonstrations and the demand to hold police accountable for their actions.  Additionally, the media has publicized cases in Los Angeles, Chicago and Philadelphia where the police fabricated evidence, coerced witnesses into giving false testimony and/or terrorized suspects into confessions.  Perhaps the most famous has been the case of the two Chicago boys who confessed to raping and killing a girl to steal her bicycle, but were found (by DNA evidence) to have had nothing to do with the crime.

Prosecutors.  A number of cases have pinpointed prosecutors who have had a history of coercing witnesses into giving false testimony.

The Court System.  The “get tough on crime” campaign has successfully cut back providing legal representation to poor people charged with violent crimes that carry a possible death penalty.  If O.J. Simpson had not been able to afford the lawyers and investigative team he had-which cost $5 million-the verdict might have been different.  By way of contrast, one of the states with the most number of executions, Alabama, pays defense lawyers a maximum of $2,000 in a capital case.

The Poor, The “Other” in the Legal System

The 1982 trial of death-row prisoner Mumia Abu-Jamal is clearly one in which “lost” evidence and coerced witnesses formed the basis of conviction.  Both police and prosecution seemed to have been involved in manufacturing the case against him. The fact that Mumia was a political activist and had been a member of the Black Panther Party was “evidence” that the prosecution used to convince the jury to vote for a death sentence.

When New York State adopted its death penalty statue, a commission determined that it would take, on the average, $600,000 to provide a proper legal defense in a capital case. In Mumia’s original trial, the court provided $14,000 to cover all costs, including legal fees and investigators.  [See Fighting for Justice: The Case of Mumia Abu-Jamal by Steve Bloom, published by the Prison Issues Working Group of Solidarity, February 1999.]

UN human rights investigator Bacre Waly Ndiaye, a lawyer and death penalty expert from Senegal, concluded in his 1998 study of capital punishment in the United States that “Lack of adequate counsel and legal representation for many capital defendants is disturbing .  .  .  .The imposition of death sentences in the United States seems to continue to be marked by arbitrariness.  Race, ethnic origin and economic status appear to be key determinants of who will and who will not receive a sentence of death.”

While 39% of those executed in the past twenty-five years were African American-more than three times their proportion in the population-the race of the victim seems to be a greater factor when the death penalty is involved: When the victim is white, the percentage of those receiving the death penalty stands at 82%; when the victim is African American, the figure falls to 13%.  In the case of interracial murders, just 4% of the cases involving a white defendant and a Black victim resulted in the death penalty, when the race was reversed, 80% resulted in capital punishment.

Several years ago the case of McClesky v. Zant presented overwhelming evidence of the racial use of the death penalty in Georgia.  But the U.S. Supreme Court sidestepped the statistical evidence by demanding the defendant prove personal discrimination.  The court rejected the argument that generalized disparities made a difference-had they accepted it, they would have admitted that the whole justice system was infected with unconstitutional racial discrimination.

Meanwhile, in attempting to profile those on death row who have been exonerated, Amnesty International noted that they were indigent defendants who had poor legal representation, faced racial prejudice and the introduction of erroneous evidence at their original trial.  As AI’s researcher Piers Bannister summarized, “The death penalty is too often the `privilege’ of the poor.”

Politicians and Capital Punishment

Amnesty International notes that the death penalty has become a political campaign tool in the United States.  They cite the re-election campaign of Oklahoma City’s district attorney-he happily reported that he was responsible for sending forty-four murderers to death row!

Just as George Bush “won” the 1988 election by showing, in his ad campaign against Willie Horton, that he was tough on crime, in 1992 presidential candidate Bill Clinton suspended his campaign tour to fly back to Little Rock and insure that Ricky Rector, a lobotomized man with the mentality of a six-year old, was executed.

Clinton also shares responsibility with the Contract-on-America Republicans for tightening up the appeals process with passage of the 1996 law. Politicians find that being “tough on crime” has been an easy way to win elections.  However, people are beginning to ask “What price we are we paying for this war on crime?”

Many human rights organizations and even the American Bar Association have called for a moratorium on executions until the death penalty could be judged to be administered fairly and with less risk of killing innocent people.

In March 1999 the Illinois House passed a resolution calling for a moratorium on executions.  In May 1999 Nebraska’s one-chamber legislature voted for a two-year moratorium while the state studied whether race, economic status and other issues played a role in the imposition of death sentences.  Subsequently the governor vetoed the bill and the legislature was unable to override the veto. Nonetheless the debate continues.  In 1999 eleven states have considered legislation that would halt or abolish capital punishment while four others rejected bills that would have allowed its establishment.

Why Socialists Oppose Executions

The socialist argument against the death penalty doesn’t deny that there are perpetrators of truly horrendous crimes.  Among the worst cases, obviously, are hate-crime murderers such as Timothy McVeigh in the Oklahoma City bombing, Shawn Berry, Lawrence Brewer and John King in Jasper, Texas and the killers of Matthew Shepard in Wyoming.

Yet in these cases too, socialists oppose the death penalty-even if might be plausibly argued that there are some crimes and some criminals for whom no punishment seems severe enough.

First, there is no reason to believe that the death penalty deters such perpetrators.  On the contrary, a society in which the state carries out executions is already a degraded and brutalized society, in which hate movements more readily flourish and arrogate the same privilege to themselves.

Second, the demonstrative effect of applying the death penalty to a tiny number of racist and homophobic murderers will only create the illusion of “even-handedness,” and legitimize the more general use of capital punishment-with all its inevitable arbitrary, class- and race-biased features.  Social justice is entirely distinct from revenge-which is why the Nicaraguan revolution of 1979 and post-apartheid South Africa abolished the death penalty.

Just as in the United States, in today’s impoverished Russia the use of the death penalty has been identified by human rights organizations as a tool against the poor to such an extent that calls for a moratorium had been growing.  This spring President Yeltsin responded to the criticism by pardoning all 716 people on Russia’s death row.

The fact is there is no other industrial country that still carries out executions.  While it is certainly past due for the United States to abolish capital punishment, the death penalty must be part of a larger discussion on the catastrophic failure of an entire criminal justice system based on “lock `em up and throw away the key” or “execute them” solutions.

Many attracted to socialist ideas reject the violence and injustice at the heart of capitalism.  At the same time, we have learned that non-violence as a principle is an ineffective response.  Clearly the right of self-defense necessarily involves taking up arms, as it did during the American Revolution and the Civil War. People must have a right to live and to defend themselves against racist and sexist violence, and to organize to remove repressive regimes.

Therefore our opposition to the death penalty is not based on an absolute abhorrence of all violence in all circumstances.  But the institutionalization of the death penalty in a class society like the United States-where oppression drives people to acts of despair and where a “fair” trial is often correlated to race and income-is unacceptable.

There is a distinctly Orwellian doublespeak in Clinton’s lecturing of the media about “marketing violence” while unleashing cluster bombs on the civilian population of another country.  Clinton may grieve over the Littleton tragedy but through his sanctions policy in Iraq he is responsible for the deaths of over 1.5 million civilians, primarily children.  Yet no arrest warrant is issued for his crimes.  As is true for most crimes committed by the corporate elite, unfortunately Clinton will probably never have to face charges for these horrendous acts.

The continued application of the death penalty, in the name of “cleaning up crime,” is equivalent to shooting heroin into the veins of a drug addict.  The death penalty is part of the disease.  Abolishing it is one of the first conditions for a cure.

ATC 81, July-August 1999