While Europe, arguably the most socially advanced region on earth, has abolished the death penalty, California and other states continued to employ this barbaric practice against only a handful of murderers, the majority of whom are poor and who were represented by public defenders or court appointed attorneys with more limited resources. However, there are two events on the horizon that could hasten the elimination of the death penalty.
The first is the likelihood that Barak Obama will become President. He is likely to nominate more progressive justices to the Supreme Court, thereby giving the anti-death penalty contingent on the bench a majority. Although Obama has called for an expansion of the death penalty to include child rapists, it is likely that he will appoint progressive justices who may disagree with him on the death penalty. There is also the possibility that there will be pressure on Obama from within his Party to modify his position. How likely is an Obama victory? The Las Vegas bookies currently require more than $2000 on Obama to win $1000. One need only wager $550 on John McCain to win $1000. From the perspective of the Electoral College and the odds makers, the race is not quite as close as the popular vote.
Only a handful of convicted murderers are sentenced to death. According to Amnesty International, 95% of the of convicted murderers on death row had the services of a public defender. Defendants with the resources to hire a private attorney are often able to utilize private investigators to attack the prosecution's case.
A Supreme Court reversal of the recent 5-4 decision on the death penalty in less than 15 years is one possible scenario for the demise of the death penalty. A second scenario for its potential demise is found in United States census projections. People of color will be the numerical majority in the United States by 2042. Studies reveal that 60% of nonwhite respondents are opposed to the death penalty, compared to an approval rate of more than 60% by whites. According to the U.S. Census, people of color will be a majority by 2042, with whites constituting only 38% of the population. What will happen to the political will for killing convicts when the demographics change?
It is difficult to see how those who support the implementation of the death penalty can reconcile their sense of fairness with the evidence that the death penalty is applied disproportionately to poor people. Amnesty International (a not unbiased source) argues that a defendant with only a public defender or court appointed attorney representing him, is more likely to be found guilty and executed than a defendant who has a private attorney. They argue that this is the case for 95% of death row inmates.
If you support the death penalty, then you must acknowledge that you approve of a criminal justice system based not upon the circumstances of the crime, but upon the defendant’s ability to pay for private counsel. Poor people do not have the resources to hire investigators who can identify weaknesses in the state's case or have high powered attorneys who can negotiate an advantageous plea bargain that excludes the death penalty. The advantage of wealth is true at all felony levels. However, should society extract the ultimate penalty of human life against those with limited resources?
Is anyone more guilty of murder than O.J. Simpson? Yet he is a free man due to competent private legal representation that investigated and uncovered improprieties in the state’s case, paving the way for an acquital. Meanwhile, an appeals court in Texas affirmed the conviction and death sentence of a murder defendant whose public defender fell asleep during the trial.
Texas has experienced more than 20,000 murders over the last 20 years with only 2000 defendants sentenced to death. The majority of murderers do not face the death penalty, even in Texas. Should it come as a surprise that most of them are poor? Even if we assume that poor people are over-represented among the ranks of those charged with murder, we can reasonably assume that wealthier persons charged with murder have a better chance of avoiding the death penalty due to increased legal and investigative resources. Many public defenders do tremendous work with more limited resources, but who can seriously argue that the playing field is level for lower and higher income defendants? For other crimes, that is simply a fact of life; for murder, it is a fact of death for the poor.
