Justice Ain't Colorblind

One of the greatest fallacies in the American criminal justice system is the belief that it is colorblind. Proponents like to chortle that our laws apply to everyone equally and don't fall more heavily on a person as the result of their race, gender, mental capacity or financial status.

In a manner of speaking, this belief contains a kernel of truth. However, the problem with ANY law is not so much the law itself but its application. And, when we speak of applying laws, then a person's race, gender, mental capacity, financial status or even where they live can make the difference between life and death.

This point has been driven home again by an Associated Press analysis of capital crimes in Ohio from 1981-2002. The study clearly illustrates that the application of justice in Ohio is based on a wide variety of SUBJECTIVE values.

For example, the AP reports that

• Offenders facing a death penalty charge for killing a white person were two times more likely to go to death row than if they had killed a black victim. Death sentences were handed down in 18 percent of cases where the victims were white, compared with 8.5 percent of cases where victims were black.

• Nearly half of the 1,936 capital punishment cases ended with a plea bargain. That includes 131 cases in which the crime involved two or more victims. Twenty-five people had killed at least three victims.

• In Cuyahoga County, a Democratic stronghold, just 8 percent of offenders charged with a capital crime received a death sentence. In conservative Hamilton County, 43 percent of capital offenders ended up on death row.

But the information gleaned from this analysis is nothing new. In 2000, Illinois Governor George Ryan halted executions in his state because of a study from Northwestern University that suggested that many on death row might, in fact, be innocent. The fact that they had been convicted, in the first place, had a lot to do with the characteristics already stated above.

As Russell Cobb wrote this past week in The Daily Texan,

Rather than devoting all their time and resources into helping people like Tucker and Graham, however, anti-death penalty activists should remember why the Supreme Court originally ruled the practice unconstitutional in 1972 in Furman v. Georgia: Its application is arbitrary and therefore constitutes "cruel and unusual punishment"- a practice banned under the Eighth Amendment.

Receiving a sentence of death in America, Justice Potter Stewart said, is like being "struck by lightning"; for indigent defendants, a death sentence has very little to do with the severity of the crime and a lot to do with the luck of the draw of court-appointed lawyers and judges.

Recent research suggests that, despite the many attempts to "fix" the death penalty, its application is doomed to arbitrariness. David Dow, a University of Houston law professor and director of the Texas Innocence Project, points out in a new book that the death penalty - contrary to conventional wisdom - is not just given to the "worst of the worst."

The time is well past to take the death penalty OFF the table as most of the rest of the world has already done. It has nothing to do with being "soft on crime" OR a "bleeding heart liberal".

No, it has to do with the fact that the application of law regarding the death penalty is flawed by continual arbitrariness. To be arbitrary is, by its very nature, neither fair nor equal.