Sunday, April 05, 2015

The Death Penalty, a Broken Justice System and the Constitution.

I was scrolling through Facebook the other day and ran across a post sharing an article about some folks testifying before a Congressional committee about the Justice system, and was struck by a statement by (I think) a Justice Department official which basically admitted that he agreed that our system of justice is "broken".

Now, thinking about that for a while brought up the question:  If our system of justice is pretty much the same organizationally today as it has been for the last century at least, why are we just now recognizing it as being "broken"?

What has changed?

A century ago, few Americans would have said, or noticed, such a thing.  So why now?  What's different?

I think most of us might answer that (of course) it is really American culture that has changed.  A hundred years ago, women couldn't vote, we lived in a heavily segregated culture, the US was hardly a world power (and was barely a regional one), and a significant number of Civil War vets were still alive - and few American soldiers had ever fought in a foreign war, save the Spanish American War just a decade before.

The automobile was in its infancy, the airplane was barely off the ground, the telephone was still a novelty in many communities, neither radio nor TV were even a sparkle in an engineer's eye, and the American monetary system was primitive by comparison to today's standards.

If it weren't for the railroads, it would still take longer to take a horse and/or wagon from New York to California than by boat.

And the number of Americans in this country who had been born in slavery was still a depressingly large number.  In fact, America was still oppressing its minorities (not only blacks) to a very high degree.

A glimpse of why we are today beginning to talk about our justice system as being broken is perhaps illustrated by the state of the death penalty in this country.
Leigh Bienen, JD, Senior Lecturer at Northwestern University School of Law, provided the following response to the question “Is the death penalty an area of our criminal justice system that, today, can be called racist or discriminatory?” published in the Spring 1997 issue of Focus on Law Studies: 
"The criminal justice system is controlled and dominated by whites, although the recipients of punishment, including the death penalty, are disproportionately black. The death penalty is a symbol of state control and white control over blacks. Black males who present a threatening and defiant personae are the favorites of those administering the punishment, including the overwhelmingly middle-aged white, male prosecutors who - in running for election or re-election - find nothing gets them more votes than demonizing young black men."

The National Association for the Advancement of Colored People (NAACP) wrote the following in its release “Talking Points: Suspend the Death Penalty,” published on (accessed Aug. 4, 2008): 
“The death penalty is the most lethal form of social injustice in the United States. The race and class bias which permeates the American justice system result in this most extreme punishment being handed out almost exclusively to the poor…Nearly all of the 3,500 Americans awaiting execution on death row today have low-income backgrounds…The justice system is biased against those without the money to hire adequate legal defense. Nearly all death row inmates are poor and most are racial minorities. Temporary moratoriums are a temporary solution. There is only one fair resolution: the death penalty must be immediately and permanently suspended.” 
Aug. 4, 2008 - National Association for the Advancement of Colored People (NAACP) 
 "...Since the reinstatement of the modern death penalty, 87 people have been freed from death row because they were later proven innocent. That is a demonstrated error rate of 1 innocent person for every 7 persons executed. When the consequences are life and death, we need to demand the same standard for our system of justice as we would for our airlines... It is a central pillar of our criminal justice system that it is better that many guilty people go free than that one innocent should suffer... Let us reflect to ensure that we are being just. Let us pause to be certain we do not kill a single innocent person. This is really not too much to ask for a civilized society." 
Russ Feingold, JD US Senator (D-WI)introducing the "National Death Penalty Moratorium Act of 2000"April 26, 2000

Since the year 2000, dozens more people have been released from death row across the United States due to improved DNA analysis - and this is ONLY for cases where there is DNA available for analysis, AND where judges or prosecutors have allowed that evidence to be re-examined.

It is obvious from these results that among cases where DNA isn't available, innocent people are very probably being executed for crimes they did not commit.

And it is likely that a majority of those cases are probably minorities.

So, what has this shown us?  What has changed?

The nation has gone through some very rough and profound changes in the last hundred years, especially those having to do with race.  Today, the general society is more concerned with how minorities are treated, and there is a growing trend to focus on the justice system and how it is biased against minorities, especially since a majority of Americans now carry smartphones with cameras.  This has resulted in a swarm of videos illustrating the horrific rate at which police departments are killing minorities for offenses which are often simply made up to cover the killing.  The overwhelming number of these videos depict minority killings, not whites.

Today, capital punishment is legal in 32 U.S. states.

Connecticut and New Mexico have abolished the death penalty, but it is not retroactive. Prisoners on death row in those states will still be executed.

As of October 2014 there were 3,035 inmates awaiting execution.

Since 1976, when the death penalty was reinstated by the U.S. Supreme Court, 1,394 people have been executed. (as of December 2014)

Japan is the only industrial democracy besides the United States that has the death penalty. In Japan, the 2013 per capita execution rate was 1 execution per 15,809,458 persons.

Since 1973, over 140 people have been released from death row with evidence of their innocence.

My own opinion of the death penalty has changed.  Just ten years ago, I was solidly in favor of it.

Today, as a result of these and other facts, I oppose the imposition of the death penalty because of the racial and economic biases inherent in its imposition.  Due to the horrific misconduct of justice system officials, from the cop on the beat to the prosecutors to the District Attorneys across the country, I feel that an immediate halt to our use of the death penalty is needed, and indeed, is the only moral path open to a modern industrial society.  That includes everything from charging people with capital crimes to the actual imposition of the executions themselves.

Certainly until we fix our broken system.  Then, perhaps we can discuss and debate the moralities of the State taking the lives of its citizens.

So, it must be fixed, and all evidence of racial and economic bias eliminated.  This is necessary, not only for fixing the death penalty, but for the fair administration of justice everywhere.

The evidence of a growing movement for this is endemic in the radical changes in our society in recent decades.  The rate of acceptance of LBGTQ people along with marriage equality across the country in just the last ten years alone is astonishing.  The percentages of people calling themselves out and out atheists has more than doubled, and the numbers of people no longer associated with organized religion has reached astonishing percentages and numbers.  A growing and changing feminist movement has gained ground, evidenced by the front and center fight for women's rights from equal pay to reproductive rights and the right to health care - all of which are faced with a huge backlash from conservative circles due to the success of past generations of that movement.

So, you ask, why did I tack the Constitution onto the title of this article?

Because all of this illustrates why the idea of Original Intent is defunct and devoid of meaning.

More than once, the Founders noted in numerous writings and articles at the time of its creation and ratification that their hope and intent for the Constitution and its future was that each succeeding generation would examine that document in light of their new and changed views of the world and the country and make what changes they thought necessary.  The Constitution was not engraved in stone with no method of amendment.  It was written on parchment and included a clear and important manner of changing that document as future generations wished.

That has been done 27 times, with three proposed amendments still pending.  Obviously, the idea that the Constitution was intended to be limited to eighteenth century thinking is wrong and completely the opposite of what those people intended.

It should be noted that most of our Founders were NOT conservatives, as such were seen in their time.  They were radicals, and would have been treated as such if the British Crown could have caught them before the Revolution was successful.  Benjamin Franklin had a nice clear picture of what that meant when he chided his contemporaries that if they "did not hang together" they would definitely "hang separately"!

Given the spoken desires of the more radical conservatives (in California of all places) to ensure the deaths of those opposed to them, I would remind my fellow Liberals that Franklin's statement is as true today as it was over three hundred years ago!