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© 2005 The Edwardsville Journal of Sociology

Volume 5

The Death Penalty as a Form of State Crime

Aimee Nyers

The criminal justice system is fraught with numerous miscarriages of justice. The most serious of these, however, are those that occur with the implementation of the death penalty. Death is different from other mistakes. Death is final. Researchers have studied the death penalty for many years, and many have come together in efforts of abolishing it. Some feel that the death penalty is a fair and just punishment that complies with the 8^th Amendment (Cruel and Unusual Punishment). Others believe the death penalty is in clear violation of the Constitution. Researchers note that public opinion for the death penalty in first degree murder cases is fairly high (Cook, 1998; Bohm, 1999; Davis, 2003; Williams, 2004). Research indicates that those with higher incomes are more likely to favor the death penalty (79%), and that men are more likely to favor the death penalty over women (Cook, 1998: 60). When the death row population is examined, however, it is evident that blacks are over-represented. I examine here the causes of this racial disparity and show how the death penalty is a State crime.

Defining State Crime

While scholars have studied the racial bias that occurs in carrying out the death penalty, the death penalty is rarely understood as a state crime. The study of white collar crime has slowly emerged in the field of criminology and deviance, but it is still a touchy subject. As Kauzlarich, Matthews, and Miller (2002: 4) explain,

while there have been some important developments in the study of state crime

over the past few years, the subject has yet to develop into a major sub field of criminology, and the rate of theoretical and empirical progress is slow even with the ranks of critical criminology.

Because the field of state crime is new, there are many different definitions to explain it.

Barak (1991: 5) defines state crime as the “obvious and subtle acts and omissions…[of] political or nonpolitical nature. Nonpolitical state crimes are usually identified with and committed by individuals employed by the government who take advantage of their positions to engage income for personal or monetary gain.” When Barak mentions the political part of his definition, he is referring to “bad politics.” An example of “bad politics” would be the Watergate scandal during the Nixon administration. This definition is a beginning, but many believe that the State’s criminal behavior goes beyond this explanation.

Friedrichs (1998: xvii) defines state crimes as “harmful acts carried out by state officials on behalf of the state.” The emphasis here is on harm. Kauzlarich and Matthews (2000: 281) define state crime as “illegal or socially injurious acts committed for the benefit of a state or its agencies, not for the personal gain of some individual agent of the state.” These definitions would include such crimes as genocide, terrorism, and the death penalty. While criminologists agree that state crime is deviant and detrimental, some dispute still lies in what qualifies as state crime.

According to Roebuck and Weeber’s definition of state crime (actions by government or capitalist agents that are not illegal in the government’s criminal code but are illegal in the criminal code of a foreign government and actions by the government or capitalist agents that violate international law), the death penalty is institutionally biased because it denies equality based on race and class of the defendant. Many studies (Bedau, 1997; Bohm, 1999; Spohn 2000; U.S. Department of Justice, 2000) have concluded that a common predictor of a defendant receiving the death penalty can be attributed to race of the victim. When the death penalty is looked at from this angle, actions of the state are a crime because these acts of racism are institutional, not individual.

To better understand what can be considered a state crime, Kauzlarich and Kramer (1992) use international law to set the standard and understanding of what conditions are or are not criminal. Kauzlarich and Kramer (1992) focus on the use of nuclear weapons. The United States government has continued to use the threat of nuclear weapons to strengthen their force in war throughout time, but using nuclear weapons is a violation of international law. Using international law as a standard of state crime shows the violation of power by both the government and military. The violation of the Universal Doctrine of Human Rights is used here to show the violation of international law within the death penalty, which makes the death penalty a state crime.

Standards of international law are relevant to the study of state crime, but a universal definition and set of standards is ideal. I, therefore, use Roebuck and Weeber’s (1978: 1) definition, which maintains that a state crime constitutes “social injury [and] violations of human rights [or] institutional behavior that results in a social injury.” Social injury is identified as the “denial of the right to racial and economic equality” (Roebuck and Weeber 1978: 1). This recognizes the criminality in the state due to racial and economic equality, the Universal Declaration of Human Rights, and an omission of equal opportunity.

Literature Review

The death penalty has evolved in the types of crimes that it has been intended to deter throughout the years. The Puritans of the Massachusetts Bay colony considered idolatry, witchcraft, blasphemy, murder, manslaughter, poisoning, bestiality, sodomy, adultery, man-stealing, false witness in capital cases, and conspiracy and rebellion as offenses punishable by death (Bohm, 1999: 1). Today offenses punishable by death include murder, espionage, treason, trafficking in large quantities of drugs, and attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs (deathpenaltyinfo.org). The power elite in American society has defined these certain crimes as deviant in order to gain political, social, and economic class over the minority group in society that commits these heinous crimes.

History

The United States experienced a nationwide moratorium on executions from 1967 to 1976, in efforts to reaffirm the death penalty to be a more just punishment. The death penalty was reinstated on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah (deathpenaltyinfo.org). After the moratorium, many states have not used the death penalty as a form of punishment: Alaska, Hawaii, Iowa, Maine, Massachusetts, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Columbia. Scholars have studied many different angles of the death penalty such as miscarriages (Bedau and Radelet; deathpenaltyinfo.org), how the death penalty does not have a deterrent effect (Bohm; deathpenaltyinfo.org), and the effect of racial bias with the death penalty (Bohm; Radelet; U.S. Department of Justice; NAACP; and Governmental Accounting Office).

United States District Attorneys

Scholars of the death penalty have also argued that the positions of the United States District Attorneys are biased in their make-up. Prosecuting attorneys for capital cases are disproportionately white, which leads some to believe that this is where the racial bias starts. Ninety-eight percent of the prosecuting attorneys who decide the fate of criminals in death penalty states are white (Lee, 2003: 19). The U. S. District Attorneys include: 1,794 Whites, 22 Blacks, and 22 Hispanics (Dieter, 1998). Whites make up 75.1 percent of the general population, but 97.6 percent of U. S. District Attorneys. Blacks make up 12.3 percent of the general population, but only 1.19 percent of U. S. District Attorneys. Hispanics make up 12.5 percent of the general population, but only 1.19 percent of the U. S. District Attorneys (www.census.com). This is not a fair distribution of those who prosecute defendants on trial for capital offenses.

The U. S. District Attorneys Office has a certain protocol for individuals that they wish to prosecute in capital cases. The U. S. District Attorneys Office must submit to the Attorney General all cases, even if the federal government decides to turn the case over to local authorities on lack of governmental interest. The U. S. Attorneys Office also has the discretion to charge an individual with a capital crime if they do not believe that they can convince a jury that the actions happened beyond a reasonable doubt. The U. S. District Attorneys Office holds the discretion to plea bargain either before or after the defendant has been indicted, which may cause a defendant that is eligible for the death penalty to be ineligible (U.S. Department of Justice, 2000: 13). The procedure by which individuals receive the death penalty in the United States is laid in the hands of many individuals that have the advantage of white privilege.

The death penalty serves as a form of social control for the ruling class over those who have less power. The U. S. District Attorneys are used by the state as an intervening power of the deviant acts of non-ruling class in society. Laws are established to prohibit behavior that threatens the ruling class interests, and U.S. Attorneys carry out those interests. The Department of Justice released a review of federal death penalty cases in 2000, with a follow-up in 2001. The survey discovered the following information: “of the 692 cases, the defendant was African American in forty-eight percent of the cases, Hispanic in twenty-nine percent of the cases, and white in only twenty percent of the cases” (Coker, 2003: 838).

Victim/Defendant Ratio

In a study conducted by Lynch and Haney (2000), it was evident that there is a disproportionate amount of death penalty sentences based on the defendant/victim race relation. They quote the Governmental Accounting Office (1990) which states, “the results of numerous post-Furman archival studies indicate that capital jurors still seem to undervalue Black victims and over punish Black defendants” (Lynch and Haney, 2000: 338). They also found that Black defendants who had a White victim had a one-third higher chance of getting the death penalty (54 percent), while White defendants who had Black victims had a 40 percent chance of receiving the death penalty. They further found that most cases that involve a white defendant lead to a plea, whereas only 25 percent of Blacks used plea bargaining saving them from the death penalty (Coker, 2003: 838). This illustrates continuing racial bias in the administration of the death penalty.

Reiman (1995) uses the term double discrimination in his book to describe the incarceration rates of Blacks who kill Whites. Reiman (1995: 122) also states that “among killers of whites, blacks are five times more likely than whites to be sentenced to death.” Table 1 shows the result of cases in Philadelphia, but the results hold true across the United States. Black defendants are more likely to receive the death penalty regardless of the race of their victim. Defendants who are non-black and have a black victim are the least likely of any group to receive the death sentence. Many have claimed that racial bias can also be attributed to the defendants being of a lower economic status and using a public defender.

The Right to Counsel

It was not until 1932 in the case of Powell v. Alabama, known as the “Scottsboro Boys” case, that it was recommended that the state provide legal counsel. The competence of the counsel, however, must still be examined. Defendants who are unable to afford an attorney for their defense are entitled to a court appointed one according to the 6^th Amendment. Public defenders, however, are often over worked and under paid. Rarely do they deal with capital cases, so they are not prepared to defend a person facing a capital conviction. Some public defenders provide excellent representation, but often they are not as effective as private counsel. Poor people lack the ability to afford the best lawyers, psychological examiners, and private detectives, and are left with what can be provided to them. Although states put massive amounts of resources into prosecuting capital cases, they do not put much into defending those on trial for the capital case. In Alabama, the highest reimbursement a public defender can receive in a capital case, including all the time spent on preparation and the trail, is $2,000 (Mitchell, 2001: 287). This is not much motivation for the defender when so much time and effort is on the line.

The quality of a defendant’s representation is a good indicator of if the defendant will receive the death penalty or be acquitted of all charges. U. S. Supreme Court Justice Ruth Baden Ginsburg was quoted as saying, “people who are well represented at trial do not get the death penalty…I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial” (deathpenaltyinfo.org).

The sixth amendment also protects those defendants who have ineffective counsel. But proving that a defendant’s counsel is ineffective is not as easy as one may think. In Texas, a man is on death row whose defense attorney fell asleep during trial (deathpenaltyinfo.org). In Strickland v. Washington, it was decided for a trial to be reheard the defendant must show that “counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial” (findlaw.com). Under these circumstances defendants must show that their defense attorney fell below the standard of a reasonable defense, and that the ineffectiveness of the attorney affected the outcome of the trial. From 1984 to 2000, the nation’s highest court never found a single instance of ineffective assistance of counsel (Christianson, 2004).

Why the Death Penalty is a State Crime

Articles 3, 5, and 7 under the Universal Declaration of Human Rights are relevant to defining the death penalty as an international law violation.

• Article 3 (Everyone has the right to life, liberty, and security of person)
• Article 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment), and
• Article 7 (All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.)

The death penalty does not have a deterrent effect on crime (Bohm, Bedau, Cook), and, therefore, the death penalty sends a disheartening message that killing people in certain instances is expectable. The use of the death penalty by the state as a crime will be defined using the Universal Declaration of Human Rights in terms of the death penalty’s victim/defendant ratio, the right to counsel, and the racial bias in its practice.

Article 3 is clearly relevant because capital case defendants are denied their right to life. Article 5 states that punishment must not be cruel and inhumane. The death penalty has been recognized for being cruel by many scholars, but the courts have decided the 8^th Amendment is not restricted to how the framers of our country intended for this amendment to be interpreted. Since the courts have changed how this amendment is interpreted, the death penalty is not considered a cruel or unusual punishment in the United States. A closer examination of how the death penalty is administered, however, suggests that the death penalty can be cruel or unusual.

Lethal injection is the most widely used method of execution in the United States, but hanging, firing squad, electrocution, and lethal gas are still authorized methods (Bohm, 1999). Defendants who have been hung usually suffer from a slow and painful strangulation, and in some instances decapitation. Defendants who are executed by firing squad are strapped down to a chair with a hood placed over their head with a bull’s eye in the middle. Defendants sentenced to electrocution face the most torturous punishment. Faults that happen with electrocution are always human error. The person who administers the electricity can often miscalculate the amount of electricity, which can cause excessive jolts and a longer living time for the defendant. Another mistake that can be made is not amply wetting the sponge which is placed on the defendant’s head, causing flames to shoot from the defendant’s head while still conscious. When the defendant is sentenced to execution by lethal gas, they suffer from an extended length of suffocation. Jimmy Lee Gary, executed in 1983, is one of the most remembered cases of lethal gas. “Witnesses claim that the torture of suffocation led him to bang his head against a metal pole until death” (Conley, 19). The ingredients for lethal injection include: sodium pentothal, pancuronium bromide, and potassium choloride. Many proponents of the death penalty think this method is painless, and simply puts the defendant to sleep. This is not necessarily true for when the sodium pentothal is administered and an adequate amount is not given, the defendant can go into cardiac arrest while still conscious. The only method of execution that has not been found to have been botched is the firing squad, but the firing squad is psychologically damaging to those who administer the lethal shots.

Article 7 is most problematic. It states that there must be equal protection under the law with no discrimination. The United States had reservations about ratifying this article, so provisions were included. Bedau (1997) notes that the provisions require that nations periodically report their compliance. The United States did not file its first report until 1994, barely even acknowledging the provisions against the death penalty. The report was shown to the committee in 1995, whereupon the United States’ reservations were viewed as illegal and article 7 was signed into the declaration. “Thus it appears as of the summer of 1995 that the United States, with its continual toleration of the death penalty and its attempt to protect this punishment from international scrutiny, has in fact been judged to be in violation of international law” (Bedau, 1997: 247). The United States is in clear violation, and yet goes unpunished.

Theoretical Interpretation

If a judge or jury was asked if the reason for sentencing the defendant to death was because the individual was black and had a white victim, undoubtedly the answer would be no. The judge and jury would simply proclaim that they were upholding the law. Judges, juries, and government officials may in fact notice the racial bias of the death penalty, but continue to enforce it, in part, because public opinion remains favorable. The death penalty continues to be used as a form of punishment even though it is a violation of international law.

Racial and class bias in how the death penalty is administered advances the institutional goals of the people in power in our society. The goals are economic and political. The goals provide motivation for the power elite to continue to dominate in society. Through the media, those in positions of power express their dominance. C. Wright Mills stated that one of the three main actors of the power elite in our society is the government.

Conflict theory, especially Mills’ version, can be applied to the administration of the death penalty in the United States. The Federal Government defines the behavior of black males as criminal and deviant to enhance the dominance of white males in political, economic and social positions. Black males are not valued as much as the white male. Conflict, therefore, occurs.

The criminal justice system was set up to punish those who do not abide by the social norms that are set by the upper class or power elite of the society. The death penalty is the harshest of those punishments. The use of the death penalty and federal prison systems as forms of social control started decades following the emancipation. Before the emancipation, 99 percent of prisoners in Alabama were White (Davis, 2003: 29). These statistics differ quite drastically from today. At the end of 2003, the U.S. prison population contained: 3,405 black male prisoners per 100,000 free black males, 1,231 Hispanic male inmates per 100,000 free Hispanic males, and 465 white male inmates per 100,000 free white males (http://www.ojp.usdoj.gov/bjs/prisons.htm). The death penalty ensures that certain individuals will never be part of mainstream society again.

The critical issue is that those who are punished often do not have the necessary resources to protect themselves from being victims of the system. The death penalty in America has been used for many years as a form of social control of the general public. While there may be individuals of a higher social status that are prosecuted with a capital offense, they often have the means to find themselves innocent of the charges. The American public repeatedly states that they agree with the death penalty, giving the government the view that they must continue to uphold the death penalty in the United States (Gallup, pollingreport.com).

What can be done to prevent this state crime?

The death penalty is a state crime. The next endeavor is to convince the general public of this and to prevent further violations. Many different prevention mechanisms have been applied to different types of state crime. Using Jeffery Ross’s (2000) suggestions would be most beneficial. He states that there must be both internal (control of the crime with in the state) and external control (the enforcement of control on crimes by other states) in order to stop state crime from reoccurring.

In order for internal control to be useful, individuals need to call upon the lawyers, judges, and politicians in our country. If these individuals would expose the tragedies that knowingly occur within the death penalty, favorable public opinion may decrease. If the favoring opinion starts to decrease, it would be hopeful for change. Another key internal actor in the controlling of the state crime is the U. S. Supreme Court. When reviewing a case, if the U.S. Supreme Court would interpret the Constitution as our founding fathers had intended, then the exposure of the death penalty as a state crime would not be avoidable.

If the United States were to be punished in the form of sanctions for its violations of the Universal Declaration of Human Rights, we may think twice about repeatedly committing this state crime. International courts and mediators need to be established and given authority, so that the United States can be prosecuted. The United States is the only industrialized country that uses the death penalty. If other countries imposed sanctions on the United States, the United States would be forced to reconsider its actions. Sanctions from other countries, such as reduction in importation of American goods, would send a message to this country that killing individuals under any circumstances is in violation of international law.

Kauzlarich and Kramer (1998) state that motivation and opportunity must be taken into account when attempting to control state crime. Motivation considers politics, economics, and competition. Politicians successfully use the death penalty as a way to gain power, because favoring opinion is high. When a politician favors the death penalty publicly, it is almost certain that the individual will receive high public approval. Many individuals do not realize that the death penalty does not have a deterrent effect, therefore giving politicians a legitimate way to fight the most heinous crimes.

The state has the opportunity to commit state crimes without the knowledge of the individuals that encompass the state. Opportunity occurs by the state when they have the “ability to conceal illegalities and immoralities by privileging concerns about ‘national security’ over humane, fair, and due process” (Kauzlarich et. al. 2002: 11). Since the government is provided with the opportunity to commit state crime, it is not often, if ever, that the general public hears about it. The news does not report that hundreds of individuals are sentenced to death by a racially-biased institution. If the state continues to have this “window of opportunity,” then the crimes will continue to occur without any type of remorse or remission.

Conclusion

Sarat (2001: 161) contends that “fighting against a punishment (the death penalty) disproportionately imposed on persons of color is at the turn of the century what the struggle for racial equality was to earlier generations.” The death penalty has become a way for the state to help bring emotional closure to victim’s families. Instead of trying to rehabilitate defendants, the state kills them, assuring that these individuals will never commit another crime (Simon, 2002).

The actions of the state are deviant because they violate international law. The United States in many cases wants to be seen as a peacemaker or a compliant state. The continual use of the death penalty does not portray the United States as peace making or compliant, because the death penalty violates international law set by the United Nations. The United States is the only industrialized country that continues to use this harsh and inhumane form of punishment. While some states within the U. S. are trying to make changes themselves, there is still room for vast improvement.

In 2000, the governor of Illinois issued a statewide moratorium on the death penalty. Governor George Ryan of Illinois commuted 164 sentences to life in prison, gave six pardons, and stated, “There is no honorable way to kill” (Chicago Tribune, 2003: 2). Our country still has many changes that need to be made in the distribution of the death penalty, but when a governor stands up and put a halt on the killing of individuals, steps in the right direction are being made. In response to the moratorium imposed by Ryan, the U. S. General Accounting Office and the U. S. Department of Justice conducted a number of comprehensive studies on the death penalty. In these studies, racial bias, as well as miscarriages of justice, have been found. This provides hope that more information on racial bias will become public. If public opinion changes, legislation will also change so that government officials can continue to hold their positions in government office.

References

Barak, Gregg (1991). Crimes by the Capitalist State. Albany, NY: State University of

New York Press.

Bedau, Hugo Adam (1997). The Death Penalty in America: Current Controversies.

New York, NY: Oxford University Press.

Bohm, Robert M. (1999). Deathquest. Cincinnati, OH: Anderson Publishing Company.

Christianson, Scott (2004). Innocent: Inside wrongful conviction cases. New York:

New York University Press.

Coker, Donna (2003). “Supreme Court Review: Foreword: Addressing the Real World

of Racial Injustice in the Criminal Justice System.” The Journal of Criminal Law

and Criminology 93: 827-879.

Conley, Erin. “Amnesty International: Exposing America’s Judiciary Shame.” Internship

paper, Department of Sociology, Southern Illinois University – Edwardsville.

Edwardsville, Illinois.

Cook, Kimberly J. (1998). Divided Passions. York, PA: Northeastern University Press.

Davis, Angela Y. (2003). Are Prisons Obsolete? New York, NY: Seven Stories Press.

Dieter, Richard C. (1998). “The Death Penalty in Black and White: Who Lives, Who

Dies, Who Decides.” Deathpenaltyinfo.org.

Fagan, Jeffrey, James S. Liebman, Valerie West, Andrew Gelman, Alexander Kiss, and

Garth Davies (2004). “Getting to Death: Fairness and Efficiency in the Processing

and Conclusion of Death Penalty Cases After Furman.” National Institute of Justice.

Friedrichs, David O. (1998). State Crime: Volume 1. Brookfield, VT: Dartmouth

Publishing Company.

Kauzlarich, David and Ronald Kramer (1998). Crimes of the American Nuclear State.

Boston, MA: Northeastern University Press.

Kauzlarich, David, Rick A. Matthews, and William J. Miller (2002). “Toward A

Victimology of State Crime.” Critical Criminology 10: 1-22.

Lee, Andre M. (2003). “Rationale for an Execution Moratorium.” Corrections Today.

Lynch, Mona and Craig Haney (2000). “Discrimination and Instructional

Comprehension: Guided Discretion, Racial Bias, and the Death Penalty.” Law and Human Behavior 24: 337-358.

Matthews, Rick A. and David Kauzlarich (2000). “The Crash of Valuejet Flight 592: A

Case Study In State-Corporate Crime.” Sociological Focus 3: 281-298.

Mills, C. Wright (1956). The Power Elite. New York: Oxford University Press.

Mills, S., and C. Parsons (2003). “The system has failed; Ryan condemns injustice,

pardons 6; paves the way for sweeping clemency.” North Sports Final

Edition, Chicago Tribune, pp.19.

Mitchell, Hayley (Eds.) (2001). The complete history of the death penalty. San Diego:

Greenhaven Press.

Reiman, Jeffrey (1995). The Rich Get Richer and the Poor Get Prison. Washington,

DC: The American University.

Roebuck, Julian and Stanley Weeber (1978). Political Crime in the United States:

Analyzing Crime by and Against the Government. New York, NY: Praeger

Publishers.

Sarat, Austin (2001). When the State Kills. Princeton, NJ: Princeton University Press.

Simon, Jonathon (2002). “Why Do You Think They Call it CAPITAL Punishment?

Reading the Killing State.” Law and Society Review 36: 783-812.

Spohn, Cassia C. (2000). “Thirty Years of Sentencing Reform: The Quest for Racially

Neutral Sentencing Process.” Policies, Processes and Decisions of the Criminal

Justice System 3: 427-501.

Tunnell, Kenneth D. (1993). Political Crime in Contemporary America: A Critical

Approach. New York, NY: Garland Publishing, Inc.

United States Department of Justice (2000). The Federal Death Penalty System: A

Statistical Survey (1988-2000). Washington, DC: U.S. Dept. of Justice.

Williams, Jessica (2004). 50 Facts That Should Change the World. New York, NY:

The Disinformation Company Ltd.

http://www.un.org

http://deathpenaltyinfo.org

http://supreme.lp.findlaw.com

http://www.ojp.usdoj.gov/bjs/prisons.htm

http://www.deathpenaltyinfo.org/article.php?scid=45&did=539#Black%20Defendants%20and%20the%20Race%20of%20the%20Victims

Aimee Nyers is a graduate student in the Department of Sociology and Criminal Justice Studies at Southern Illinois University Edwardsville. Her email address is blackburngal@hotmail.com

*Source: Death Penalty Information Center http://www.deathpenaltyinfo.org/article.php?scid=45&did=539#Black%20Defendants%20and%20the%20Race%20of%20the%20Victims