The Right Time for a Death Penalty Moratorium

Human Rights

Recently, the Supreme Court ruled by a 6-2 majority that a death row inmate, Kevin Wiggins, deserves a new sentencing hearing because he did not have adequate representation at his previous sentencing. The ruling, along with a new ACLU study, reaffirms the need for a national death penalty moratorium. Even without the moral arguments regarding its use, there is more than enough evidence that the death penalty is not applied fairly.

In the Wiggins case, some crucial facts were not mentioned in his trial. For instance, he is mildly retarded, and as a child, he was beaten by an alcoholic mother who also burned his hands on a hot stove for punishment after she caught the then 5-year-old Wiggins playing with matches. Later, when the child was placed in various different foster homes, he was repeatedly sexually assaulted and beaten. None of this can excuse Wiggins from the crime of murder, but if he had been properly represented, this information would have found its way to the jury and his sentence could have been affected.

Kevin Wiggins is not alone. A new ACLU study paints a damning picture of the capital punishment system in America 30 years after Furman v. Georgia, the case that struck down the capital punishment system at the time, and called a halt to executions in America. Four years later, after some legislative tweaking, the death penalty was back, and just as arbitrary and discriminatory as ever. According to the 28-page study, the application of the death penalty varies greatly according to race, socioeconomic status, and even geography, and that in many cases the people convicted of murder have been exonerated later.

The study says, since 1973, 108 people have been released from death row, and more than half of those have been released in the last 10 years. Many have placed faith in DNA testing to single-handedly solve our problems with innocent people on death row, but, as the study shows, only 13 of the 108 people released have been released because of DNA evidence. Often there is no DNA evidence in these cases or if there was, it has since been destroyed. Clearly DNA while it is a great tool is not going to be the savior of the innocent on death row that many had hoped it would be.

The study also talks about the lack of proper representation afforded to the indigent in capital punishment cases. Around 90 percent of all death penalty defendants cannot afford representation, and are forced to use a public defender. The stories of incompetent public defenders in capital crimes range from one lawyer failing to ask the jury to spare his clients life, to another lawyer actually sleeping in court during the trial. The lack of sufficient competency standards in most states, and limited funds for public defenders to investigate the facts of a case, often means that those who cannot afford their own defense are not being granted their constitutional right to fair representation. The fact that the overwhelming majority of the indigent are poor means that poor people are far more likely to receive the death penalty than people who can afford to pay for their own defense. What does this say about a country where justice is supposed to be equally applied to all regardless of the amount of money they make?

Progressives have also been saying for years that the death penalty is racist. The ACLU study seems to confirm this long-held belief. According to the study, "over 80 percent of completed capital cases involve white victims, even though nationally only 50 percent of murder victims are white." A study of Chattahoochee Georgia, found that while 65 percent of that county's homicide victims were black, 85 percent of the death penalty cases involved white victims. This percentage is broken down in the study to reveal that the death penalty was sought 38.7 percent of the time when the victim was white and the defendant was black, 32.4 percent of the time when both the victim and the defendant where white, 5.9 percent of the time when both victim and defendant were black, and never when the victim was black and the defendant was white. A study in North Carolina authored by Dr. Issac Unah found that defendants whose victims were white in that state were 3.5 times more likely to be sentenced to death than if they were black.

On top of all the other biases in capital punishment, the jurisdiction over where the crime was committed plays perhaps the greatest role in determining whether a person receives the death penalty or not. According to the ACLU, 82 percent of all executions since 1977 have taken place in just 10 states: Alabama, Arkansas, Florida, Georgia, Louisiana, Missouri, Oklahoma, South Carolina, Texas, and Virginia. There are even differences among the various counties in those states. Baldwin County Georgia, with a population of 42,000 had more people on death row than Fulton County even though Fulton County had over 17 times as many people. Harris County Texas, accounts for 140, nearly a third, of the state's death row population, while Dallas, with a higher murder rate, accounts for only 37 people on death row. Much of the disparities between counties can be attributed to a prosecutor's willingness to pursue the death penalty. So, what you end up with is an unequal system of justice where the political belief of the local prosecutor is the determining factor in whether a person is put to death or not. This is a gross mishandling of justice. In a country where the rule of law is supposedly king, to have such a trivial thing as politics decide whether or not a person lives or dies is despicably unjust.

It has even been argued by some prosecutors that once convicted, a death row inmate's innocence is not important. All that needs to be established is whether the condemned had a fair trial or not. In a case involving death row inmate Joseph Amrine, a Missouri Supreme Court Judge asked Frank Jung, an assistant to Missouri Attorney General Jay Nixon, if executing an innocent man was cruel and unusual punishment. He replied, "If there is no underlying constitutional violation, there is not a right to relief." It's sad to think that a prosecutor, a person who has been given a mandate to uphold justice from the people he or she serves, could be unconcerned about the possible innocence of a man sentenced to die. There can be no justice as long as unjust men like Mr. Jung are allowed to impose a death sentence on the potentially innocent.

It's time for a national moratorium on capital punishment. We can't continue to accept the unfair application of this ultimate sentence. The race and wealth of a person can no longer be allowed to determine whether that person dies, and the political leanings of prosecutors can't be allowed to influence how justice is applied in America. We are a country of laws, and it's time we started acting like one. If we are to proceed with this ultimate punishment, we must be sure that it is fairly applied to the most horrendous crimes committed in our society. Many of us on the left have long been opposed to capital punishment based on principle, but now it's clear we can't hope to debate the merits of a death sentence unless the system that imposes it is just. Until then there is no debating the fact that our capital punishment system is fatally flawed.

Christopher George is a freelance writer in South Carolina. He can be reached at

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