Actually I don't think it is opponents of the racist adminbistration of the death penalty who have an obligation to fix the problem. Let advocates of the death penalty do it. All we have to say is, if the state is going to kill people, it is illegal to do it all if it is being done in a racist way in general. There is precedent for this; back when the S.Ct overruled all existing death penalty statutes in the early 70s, see Furman v. Georgia, they did because statistically, its admninistration was statistically freakish and capricious. The states then tried various devices to reeduce the element of caprice, and the Court, in Gregg v. Georgia, finally approved the current two-stage liability and sentencing system where, in the latter, all mitigating and aggravating circumstances and other considerations can be brought to bear.
Short answer: it's not _our_ problem how to save the death penalty.
--- Wojtek Sokolowski <sokol at jhu.edu> wrote:
> Justin:
>
> > We know the death sentence is administered in a
> racist way.
> > The evidence is rock solid that blacks who kill
> whites are
> > statistically more likely to get the death
> sentence than any
> > other racial killer/victim pairing. Proving actual
> racial
> > bias in a particular case is, however, an
> impossibly high
> > bar, particularly as the jury is black box that
> can't be opened.
> >
>
> OK, suppose that the powers that be accepted the
> above at its face value and
> asked your counsel to remedy the situation. What
> would that counsel be?
>
> Abolish death penalty altogether? That may please
> the death penalty
> opponents (which is an altogether different issue),
> but would NOT eliminate
> the disparity. How would disproportional getting a
> life without the
> possibility of a parole vs. a few years in jail
> would remedy the situation?
>
> Use different legal standards or sentencing
> guidelines for blacks and
> whites? I doubt you would even entertain that, but
> for everyone who would,
> that would not only be a political suicide, but a
> regression to apartheid.
>
> Ascertain that black defendants get black judges,
> black lawyers and black
> juries? That, I understand, is already being
> practiced, especially in the
> jury selection which is the most crucial for
> deciding both guilt and
> penalty, and evidently it did not do much of a dent,
> if the original
> assertion of racism is true.
>
> Since it is hard to think of any more ideas
> addressing race in general -
> and none of the above appear particularly helpful -
> perhaps the next logical
> step is to examine what specific factors or
> mechanisms lead to the disparity
> in the treatment between blacks and whites.
>
> Is it prosecutorial discretion? If so, is it
> because prosecutors tend to
> hold racist views or perhaps follow racist
> institutional guidelines? That,
> of course would not only need to be demonstrated to
> exist, but also that it
> affects the jury verdict. It is quite possible that
> juries may either go
> along or consciously nullify efforts of biased
> prosecutors. Or perhaps it
> is that prosecutorial discretion is affected by
> public and political
> pressures? Or perhaps that discretions is affected
> by the factors like the
> nature of the crime, aggravating/extenuating
> circumstances, quality of the
> evidence etc., and there are demonstrable
> differences in these respects
> between crimes committed by blacks and whites (or
> against black or white
> victims)? Or perhaps it the competence (or
> perceived competence) of the
> defense that makes the difference? And if so, why is
> that black defendants
> tend to have less competent defense? Is it the
> matter or their skin color
> or rather material resources (As OJ Simpson's case
> may suggest)?
>
> And if it is indeed prosecutorial discretion in one
> form of another that
> leads to a differential treatment - will the remedy
> in the form of
> eliminating that discretion create more harm than
> good? Will it not turn
> the office of the prosecutor into the rubber stamp
> of political pressure
> groups or lynching mobs? How will tat affect
> disparity in treatment?
>
> And then, if it is not - or perhaps not only - the
> prosecutorial discretion,
> then what else could it be? Biased juries? If so,
> biased in what way? Due
> to the composition of the jury panel (which may
> suggest incompetent
> defense)? Due to irrational hatred of black people
> by most non-black people
> (possible but not very probable)? Due to different
> perceptions of crimes
> committed by blacks? Due to fears and insecurities?
> Due to media
> manipulation? Due to religious beliefs" Due to
> ignorance? Each one, if
> confirmed, would require a very different approach
> and a very different
> remedy, no?
>
> And if it is not - or not exclusively - prosecutors,
> defense attorneys, and
> juries, then what else? Is it sentencing
> guidelines? We all know about
> disparities involving drug possession (drugs favored
> by blacks carry higher
> mandatory sentences), but to my knowledge no similar
> disparity has been
> claimed in regard to violent crimes - which would be
> absurd anyway unless
> one wants to claim different "preferences" in that
> respect among blacks and
> whites. I guess you know more on this subject than
> most of us here, so
> please do tell us more about biases, if any, in
> sentencing guidelines.
>
>
> So as you can see, in order to provide an effective
> counsel to alleviate the
> perceived (or real) discrepancy, we need to pinpoint
> their exact causes -
> many of which may be related to race only in a
> coincidental way, or none at
> all. My argument was that crude correlational
> studies referenced in the
> original post are not very useful in pinpointing
> such causes, and that a
> better way is to use the case study approach. In
> fact, the only way we know
> for sure about the bias is from individual cases -
> which then some people
> try to turn into blanket statements pertaining to
> entire populations by the
> misuse of statistics. Please also note that even if
> a statistical
> correlations were established in a scientifically
> rigorous manner, that
> would still be insufficient to conclude that bias
> exists in a particular
> case - that would be ecological fallacy
> http://en.wikipedia.org/wiki/Ecological_fallacy
> which btw I believe is the
> reason why it is considered inadmissible in courts
> (so why you call it
> reactionary is beyond me.)
>
> I may also add that making blanket statements using
> emotionally charged
> "humpty-dumpty" words (i.e. words without a clearly
> defined meaning that
> mean basically whatever the users want them to mean)
> - such as "our justice
> system is racist" - may be effective for incensing
> people, rising their
> blood pressure and adrenaline level, spinning their
> wheels, blowing smoke
> and occasionally torching a neighborhood (which
> would hurt mainly people
> whom these ill-conceived efforts supposedly want to
> help) - but it will not
> do much to make any real changes. In fact, it is
> likely to have the
> opposite effect of obscuring the issue, wasting
> resources, and driving away
> persuadable but undecided people into the opposite
> camp. As I see it, the
> latter is la specialite de la maison of the US left.
>
>
> Wojtek
>
>
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