"Shocking, unjust, and unacceptable"

The following op-ed from ACLU-PA staffer Andy Hoover appeared in Sunday's York Daily Record/York Sunday News.

As the United States Supreme Court ruled the death penalty unconstitutional in 1972 in Furman v. Georgia, Justice Thurgood Marshall commented, "The American people are largely unaware of the information critical to a judgment on the morality of the death penalty...if they were better informed they would consider it shocking, unjust, and unacceptable."

Justice Marshall obviously had an optimism about the people of this country that if they only knew, if they just had the information in hand, they would discard capital punishment for good. 33 years later, and 29 years after the Court reinstated the death penalty in Gregg v. Georgia, either the American people still don't know or they just don't care, for this country will soon execute someone for the 1000th time since 1976.

And yet one could argue that Justice Marshall's message is getting through, albeit one step at a time. Although we are approaching a sordid milestone, death sentences have actually dropped nationally by more than 50% since the late 1990s. Here in Pennsylvania, death sentences have declined for five straight years and have dropped more than 80% in ten years. In 1994, the Commonwealth handed out 21 capital convictions but just four in 2004. Death sentences are trending downward because the American public is awakening to the problems with capital punishment and are becoming suspicious of the power of life-and-death in the hands of government.

Moratoria in Illinois and Maryland, court-ordered shutdowns of the death chamber in New York, New Jersey, Kansas, and Florida, the end of the execution of the mentally retarded and children, and the continuously revolving door of innocent people walking off of death row have our odd institution of capital punishment crumbling under its own burdensome weight.

But what, exactly, was Justice Marshall talking about in 1972? What is "the information critical to a judgment on the morality of the death penalty"? What is so "shocking, unjust, and unacceptable"? Regrettably, many of the problems that the Court examined in 1972 still exist today.

As the nation nears its 1000th execution, it is instructive to look at who gets executed in this country. Race matters. Pennsylvania's death row has the second-highest minority rate in the country at 69%, giving the Commonwealth the feel of apartheid-era South Africa. Governor Ed Rendell and some prosecutors have said that this is the case because it is minorities who are committing first degree murder in this state. What they fail to tell us is that juries determine if it is first, second, or third degree murder, and only death penalty supporters can serve on a capital jury. These juries are made up of people who, like all of us, carry their own imperfections and biases.

To make matters worse, some prosecutors deliberately remove minorities from the jury pool during jury selection. The Philadelphia District Attorney's office was recently exposed for training its prosecutors on how to remove minorities from juries and still get around the Supreme Court's 1986 ruling in Baston v. Kentucky, which declared it unconstitutional to remove potential jurors simply on the basis of race. The Philly DA's office even produced a training video on the issue.

Yet the race of the victim plays an even greater role in deciding life or death. Of the nearly 1000 executed, more than 80% were cases that involved white victims, despite the fact that nationally only 50% of murder victims are white. How do we explain this disparity?

Money matters, too. Nationally and in Pennsylvania, 9 of every 10 death row inmates were too poor to afford their own attorney at trial. Many court-appointed attorneys and public defenders are honest, hard-working people who are simply overworked, underpaid, and lacking in the resources necessary for a quality defense. In addition, the Commonwealth provides no funding for post-conviction appeals. Only the brilliant, pro-bono capital appeals work of the Federal Defenders Association in Philadelphia, with contributions from various private attorneys around the state, has kept Pennsylvania from becoming the Texas of the North.

Racial bias, ineffective counsel for the poor, and police/prosecutorial misconduct are the seeds that sow the wrongful convictions of the innocent. Since 1986, twice as many innocent men have been discovered on the state's death row than have been executed. One cannot help but wonder how many more innocents sit on The Row today.

Lastly, while America marks its gruesome achievement, there is one final statistic to consider. In the time that the United States has been killing 1000 people, 69 countries have abolished the death penalty. Many of these nations are sometimes referred to as "third world" or "developing", but when it comes to state-sanctioned murder, "fully evolved" would probably be the operative term.

Justice Marshall's optimism about the people of this great country is inspiring. With "the information critical to a judgment on the morality of the death penalty", the American people will ultimately end capital punishment.

Along with his work for the ACLU of PA, Andy Hoover is also the president of Central Pennsylvanians to Abolish the Death Penalty.