Transcript Department of Criminal Justice California State University - Bakersfield CRJU 330 Race, Ethnicity and Criminal Justice Dr.

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
Introduction:


The constitutionality of the Death Penalty. The
8th 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
only when punishments involve torture or
lingering death then it is cruel

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).
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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?
Conclusion
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.
Impact of Furman:

The Court defied predictions that the death penalty
would be abolished and instead decided to regulate
capital punishment rather than abolish it

Other states responded to Furman by adopting new
statutes that will narrow the discretion and avoid
problems or arbitrariness and discrimination

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.
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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.
Question Presented
Is the imposition of the death sentence prohibited under
the Eighth and Fourteenth Amendments as "cruel and
unusual" punishment?
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
Conclusion
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.

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.

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.
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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.
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
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Also, while some support the death penalty,
researchers say that these people are usually
implying a genuinely harsh punishment for
convicted murderers.
In general, whites support the death penalty more
than blacks and Hispanics. (whites, AA, then
Hispanics)
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1.
2.
Taking into consideration the race of the victim and
the offender (p.264)
Explanations for disparate treatment
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
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
McCleskey v. Kemp 1986 Executed in 1991
 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.
 Question Presented
 Did the statistical study prove that McCleskey's
sentence violated the Eighth and Fourteenth
Amendments?
 Conclusion
 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.
The Death Penalty in the 21st century
 Opponents
of the death penalty coupled with the
defeat of the Racial Justice Act were arguing for the
abolishment of the death penalty
 Read
examples page 283
 THE
MOVEMENT TO REFORM THE DEATH PENALTY
 Increasing access to post-conviction DNA testing
and providing funding for DNA tests
 Banning execution of mentally retarded people
 Establishing standards on qualifications and
experience for defense course, in death penalty
cases
 All these to increase confidence and trust in the
justice system and ensure fairness
THE MOVEMENT TO ABOLISH THE DEATH
PENALTY
 System
 Is
is flawed
discriminatory, and not fair and equal