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Death Penalty Among the standard claims in any debate about capital punishment is that it is biased against blacks. Gregory Kane addresses this issue with an illuminating commentary on BlackAmericaWeb. It would be interesting to hear from someone who can refute his logic.

Lethal Injection The Florida Supreme Court has agreed to hear a second appeal from confessed murderer Danny Rolling after a judge ruled that his arguments against the state's lethal injection process were without merit. Rolling, who's execution is set for October 25, pled guilty to the brutal 1990 murders of five college students according to an Associated Press story

Judicial Education. Ed Whelan has this article at National Review Online on the criticism of judges attending expense-paid seminars. He contends that Senator Leahy's bill is not viewpoint-neutral but rather is "gerrymandered" to prevent judges from attending seminars sponsored by George Mason U. but allow them to attend those of the Soros-funded Aspen Institute.

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Kane's article raises to points:

1) The tyranny of the minority in regimes where the death vote must be unanimous.

2) The Supreme Court's idiocy in barring the mandatory death penalty. Those who commit murder or orchestrate murders in prison, especially lifers, ought to have a mandatory death sentence.

I don't know if you're joking about Kane's "logic," but just in case, here's his argument:

1. People complain that the death penalty is racially biased, because blacks who kill whites usually get the death penalty, while whites who kill blacks usually do not.

2. Here is a case where whites who kill blacks did not get the death penalty.

3. Therefore, the death penalty is not racially biased.

Um, so, yeah.

I believe that one of Rolling's victims was male. [Corrected, thanks. -- CJLF Staff.]

Perhaps Matt is a federal appellate judge of the Brennan/Marshall school of death penalty jurisprudence. Or, perhaps Matt didn't read Kane's article. Or, perhaps Matt did read Kane's article but can't tolerate the point it makes. Regardless of which possibility most closely approximates the truth, Matt's "analysis" of the Kane article stands as an example of the sort of distortions those who represent the states are compelled to refute on a daily basis.

Kane, speaking to a black audience, makes the following point: You folks may want to reconsider a blanket opposition to the death penalty, because there's two gruppenfuhrers who are probably presently plotting the deaths of more black inmates, because the jury punked out by 3 votes against enabling those bubbas to kill again, which they will, because they got a free pass this time.

If Kane's point is "blacks should reconsider a blanket opposition to the death penalty, because those who kill blacks should be executed so they don't kill more blacks," then it's within the realm of rationality, though it's hardly particularly persuasive. There's no interesting racial angle to this -- it's just "bad killers should be executed."

But Kane bills his point -- look at the headline, "Think the Death Penalty is Unfair to Black People?" -- as being some sort of refutation of claims of racial bias in capital punishment. And that's how this blog bills it: "Among the standard claims in any debate about capital punishment is that it is biased against blacks. Gregory Kane addresses this issue with an illuminating commentary on BlackAmericaWeb. It would be interesting to hear from someone who can refute his logic."

But if you read Kane for the point he thinks he is making, and for the point that this blog attributes to him, then he has proved the diametric opposite of his claim. White killers of blacks get prison; black killers of whites get death. The death penalty is racially biased. Blacks might prefer a system where *these* killers get death, but they should not prefer the current American death penalty system where first-time black murderers get executed while incorrigibly evil multiple-murderer white "gruppenfuhrers" do not.

I mean, Kane's article is a lot of rhetoric wrapped around a very stark example of the bias of capital punishment against blacks. Take the worst possible killers -- those already in jail for life for murder, who order hits out of pure hatred, who have shown no evidence of redemption or mercy -- and, because they're whites who killed blacks, they avoid the death penalty. How can anyone read this as a "refutation" of claims that the death penalty is racially biased? Really, how?

Kane's article actually touches on several issues.
First, he cites this case as an example of a case in which the prosecution did charge white defendants with the murder of black victims. His note cites statistics about the exercise of prosecutorial discretion in charging. From that standpoint, this case is contrary to the claims made about racial bias in the system in terms of the exercise of prosecutiorial discretion. These statistics themselves, of course, are based on a GAO study which is not itself an actual study, but simply a compendium of other studies that have been rejected in the courts.

Second, he raises the issue of deterrence in the sense of what to do with inmates serving life sentences who murder again, such as at least one of the defendants was serving in this case. Certainly, it would appear that we have run out of options with these types of defendants. There is no way you can guarantee that a life prisoner will not be able to kill again. In this case, it appears that the prosecution may have been undone by another charging decision--it made a deal with the actual killer in return for testimony against these defendants. This is an important difference between this case and another recent case in which the defendant who was serving a life term was sentenced to death and was executed, Clarence Ray Allen (executed in California on 1/17/06).

While intellectually, it may be justified or necessary at times to use the actual killer to get the mastermind--I can tell you from personal experience that emotionally jurors (and victims' families) are not satisfied unless the actual killer gets the same penalty. My guess is that this "perceived" disparity (the prosecution may have had no choice but to use the actual killer) was the problem in achieving a death verdict in this case. Ultimately, the case still stands as an example of why life imprisonment is not necessarily a sufficient subsitute for the death penalty--since a life sentence is not always a guarantee against further murder. This is the reason why the US Supreme Court left the door open for a time for a mandatory death sentence for life prisoners who commit murder while serving a life sentence. It would have been interesting to see the outcome if the judge had had the option of declaring a mistrial and having a new jury look at the case, as would have happened under Californai state law.

I doubt that Matt will buy that analysis. Too much cool and detached logic, not enough histrionics.

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