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Language, Sleight-of-Hand and Abolitionism

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The two entries prior to this one, both by Kent, discuss (1) the role of slippery language in discussions about criminal law, and (2) deceptiveness in a recent North Carolina study purporting to find racial discrimination in that state's application of the death penalty.  The two analyses are related in a way that might not seem obvious, but is a telling illustration of the truth of both.

North Carolina adopted a so-called "Racial Justice Act" to permit the use of statistics to illustrate that the state's death penalty is applied more harshly, and frequently, to blacks.  The recent Radelet study purports to show just that, but does so only by silently redefining what "racial discrimination" has previously been understood to mean.

Up to now, normal people thought that discrimination against black defendants meant singling them out for harsher treatment because of their race. But the Radelet study shows nothing of the kind, and does not even claim to so far as I have been able to find. (The failure to find it mirrors a similar failure in a Maryland study a few years ago).  Instead, it finds disparity based on the race of the victim.

Note to Professor Radelet:  The victim was not selected for capital prosecution.  The defendant was, and the only relevant question is whether that selection was racially biased.  It wasn't.

In other words, Radelet's study finds a disproportionality that is irrelevant to the purpose for which the research was ostensibly undertaken.  This is the fact the study's rollout is designed to obscure by its sleight-of-hand language.  If Prof. Radelet wanted to make the point that blacks disproportionately commit crimes, including murder, he's a few decades late.  But that is not the fault of the criminal justice system, and still less is it evidence of biased prosecutors or juries.

What race-of-the-victim studies at least arguably show is that the system does not adequately value the lives of black murder victims, because their killers are less frequently subject to the death penalty.  But that is hardly a reason to end capital punishment.  To the exact contrary, it's a reason to apply it more resolutely, broadly  --  and frequently.

 

 

 

4 Comments

I think this post is seriously problematic. I don't think that it's really possible to argue that race of the victim discrimination doesn't cause any concern because, well, it's the race of the defendant that we care about. On it's face, that's a laughable argument. So the study, if it purports to show race of the victim discrimination, has to be dealt with.

My guess is that the study has the same problem that most do--capital punishment is looked at on a statewide basis, but there are a bunch of local prosecutors making independent decisions. If a few jurisdictions where minority victims are concentrated are less likely to seek death on a per murder basis because of less prosecutorial enthusiasm for death, less favorable juries or even because there are a lot of murders, and you can't go for death that often, then the statewide figures are going to look like there is race-of-the-victim discrimination. To the extent that a jurisdiction's lenience towards minority-victim murder cases results from the jurisdiction reflecting the attitudes of minorities in the jury box and at the ballot box, then the argument that there is racism is ridiculous.

I hear you, but disagree in part.

You say, "I don't think that it's really possible to argue that race of the victim discrimination doesn't cause any concern because, well, it's the race of the defendant that we care about."

We shouldn't care about the race either of the victim or the defendant, since race has zip to do either with the gruesomeness of the killing or the culpability of the killer, which are the factors the criminal justice system needs to stay focused on. Race, no matter whose, is morally irrelevant and thus should be legally irrelevant.

At most, race-of-the- victim arguments -- to the extent they have relevance at all, as opposed to being sideshows (like "geography of the victim" studies, only more incendiary) -- demonstrate not that the death penalty should be abolished, but that it should be applied more frequently. Professor Radlet simply looks away from this crucial fact.

The argument in your second paragraph nails it on that point. Those complaining most loudly about race-of-the-victim "discrimination" tend to be the very people who create it by refusing to seek the death penalty in venues where the great majority of murder victims are black.

To my way of thinking, this makes their argument, not merely deceptive and hypocritical, but exceptionally cynical to boot. In that way, it closely resembles the DP-costs-too-much argument, always and ever most loudly advanced by those who do their darndest to drive up its cost.

"We shouldn't care about the race either of the victim or the defendant, since race has zip to do either with the gruesomeness of the killing or the culpability of the killer, which are the factors the criminal justice system needs to stay focused on. Race, no matter whose, is morally irrelevant and thus should be legally irrelevant."

If you mean that the racial particulars should be irrelevant to whether death is sought, I'd agree with you (although a racially-motivated hate murder is probably a reason to seek death); if you mean that the prosecutorial decision to prosecute is not to be examined on whether race-of-the-victim bias is present, I disagree. If prosecutors are intentionally making the decision based on race-of-the-victim, that is a problem, and it's arguably an Equal Protection violation. Given your attacks on Holder's DOJ, it seems a little inconsistent for you to state that race-of-the-victim discrimination is an issue simply to be dismissed. That these studies are garbage doesn't mean that race of the victim discrimination would not be a problem if proven.

I agree that a prosecutor who went for the DP only when whites were murdered would be, as you say, a problem. My focus was more narrow, however. The question raised by the Radlet study is not whether a bigot as a prosecutor is problematic (obviously he is at least that). The question is whether the DP should be ABOLISHED in a jurisdiction where the prosecutor with a low regard for the lives of black people holds forth. The Radlet study was, after all, self-consciously a tool of abolitionism, and was not merely undertaken to spot "a problem."

In my view, the DP should not be abolished in such a jurisdiction, nor should it be cast aside in any particular case. The DP is unfair in the Equal Protection sense not where someone (or many people) who deserve it escape it, but where someone (or many people) who do NOT deserve it get it. Race-of-the-victim studies muddy (indeed they are designed to muddy) this crucial distinction.

To my knowledge there is no legal remedy for undeserved or even discriminatory leniency (there is, of course, an electoral remedy). There is only a legal remedy for undeserved harshness.

A fellow, white or black, who engages in some grotesque torture murder of a white ten year-old deserves the DP, and therefore should -- I would argue -- get it, even if every one of the last 50 murder victims in a capital case in that jurisdiction was white. The injustice in that scenario is scarcely to the ten year-old's killer; unrelated past cases have nothing to do with his case or his culpability. The injustice of race-of-the-victim selection is to the public, and it would be perverse if the public were further abused by shelving a fully warranted DP either altogether or in that particular case.

Identitiy politics is bad enough. Identity law is yet worse. It's not the identity of either the killer or the victim that counts. It's the defendant's behavior.

Finally, let me make one general point. Racial disparities are everywhere in the criminal justice system, because they are everywhere in the culture. We can work to eliminate them, for sure. But it will not eliminate them, and would be too high a price in any event, to surrender the moral confidence required to maintain the death penalty.

The Radlet study and similar efforts are a play on national guilt (which is why they're done and why they're sometimes effective). Our country's historical treatment of blacks, and its continuing shadow as reflected in criminal law statistics of all kinds, is a legitimate cause for both concern and action. But it is emphatically NOT a cause for disarming ourselves of one of the most profoundly moral and importantly symbolic measures at our command, that being our ability to say "no" to the most horrible crimes and actually mean it, irrespective of the race of the victim or the killer.

The Radlet study is a tool to achieve that disarmament, and thus deserves not only to be debunked on its own terms -- as Kent has done -- but to be unmasked for the real agenda behind it.

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