Spring 1997, Volume XII, Number 2
The Death Penalty

Victims and the Death Penalty

John McAdams: I want to strongly insist that when we consider the racial equity of the death penalty, or indeed any other issue in criminal justice, that we give priority to the interests of the victims of crime, to law-abiding citizens. Politically correct attitudes make this difficult. A key element of political correctness is the conviction that blacks are victims of white racism. All issues are assumed to pit blacks against whites. Naturally, one should side with blacks, the historical victims of oppression. This has all sorts of perverse consequences. Thus, it sometimes seems that people concerned with racial injustice are unhappy that while guilty white offenders go free, equally guilty black offenders get imprisoned. Fair enough. But then they seem to want to address the injustice by letting more guilty blacks go free.

James Acker: It is difficult for me to dismiss the constitutional principle of "equal justice under law" as political correctness. If the real concern is to be directed toward the victims of crime, as [Harvard Law Professor] Randall Kennedy has pointed out, then the anger of those who believe in capital punishment -- as a deterrent or as retribution -- should be redoubled when evidence suggests that homicides involving African-American victims are treated as less serious events by actors in the criminal justice system. Under these circumstances, African-Americans reap none of the presumed benefits of the capital punishment system, yet the capital sanction is sought and delivered with comparatively great regularity in white victim homicides, especially those committed by African-American offenders. The debate hardly involves arguments that guilty people should go free. Severe alternative sanctions are available to capital punishment, including life imprisonment without parole in many jurisdictions. Sometimes, the erroneous assumption is made that opponents of capital punishment are not concerned about victims of crime, or that they somehow denigrate the seriousness of murder. If the execution of murderers is all that can be offered crime victims, maybe it's time to regroup and think a bit harder.

John McAdams: I'm not "dismissing constitutional principles." What I said is that political correctness inclines many people to adopt an offender-centered approach to racial inequity, rather than a victim-centered approach. I find it difficult to understand the absence of concern for victims -- who are disproportionately black and poor -- in discussions of the death penalty.

Leigh Bienen: Those who worry about constitutional issues and criminal defendants do so because that is what the Constitution directs us to. It isn't a lack of concern for victims, but the Constitution isn't concerned with victims. That may be unfortunate or unwise public policy, but constitutional rights are preponderantly for criminal defendants. There is a reason for this: persons who are accused of crimes or commit crimes have few supporters, and as a society we believe that fair adjudication is a primary value.

John McAdams: It's certainly correct, to a certain extent, that the Constitution or, rather, the Bill of Rights, isn't concerned with victims. Other parts of the federal and state constitutions that give governments the powers necessary to establish police forces and punish criminals do show a concern for the victims. This concern is never explicit, because at the time of the writing of the Constitution, it wasn't controversial that government had the right to punish criminals.

James Coleman: I don't understand the current resort to the victim in response to almost any criticism of the criminal justice system. It is as if the end -- the interests of the innocent victim -- justifies the means, a system that is unfair and discriminatory. But none of that deals with questions of fairness in the imposition of a sentence. A death sentence can be warranted in the particular case and still be unfair. The Supreme Court in Gregg and McCleskey made the point that a defendant who "deserves" the death penalty is in no position to complain that others equally deserving are shown mercy. The problem with this position is that it ignores how the system contributes to the inconsistent results. I go back to Justice Brennan. If the death penalty is not used to punish offenders generally, or if it is not being used to protect all communities equally, then the punishment is being imposed unfairly. Calling a position "politically correct" does not confront its merits. Some who oppose the death penalty or are indifferent to its use also care about how the criminal justice system functions.

John McAdams: In fact, the interests of the victim may justify a system that is unfair and discriminatory, if the choices are to continue the system or dismantle it. The harm that follows from dismantling the system may exceed the harm involved in the unfairness. My point was that the failure to properly punish criminals disproportionally harms black people. Nobody would argue that racial inequity in punishing robbers means we have to stop punishing robbers. Nobody would argue that if we find that white neighborhoods have better police protection than black neighborhoods, we address the inequity by withdrawing police protection from all neighborhoods. Yet people make arguments exactly like this where capital punishment is concerned.

James Coleman: John McAdams misstates the choice. It is not whether to punish or not to punish. Of course, we don't stop punishing black robbers because white robbers are permitted to go free -- unless the evidence is that taking money by force' generally is not a crime unless it is committed by black people. In that case, we have a system more akin to the slave code, which created special crimes for slaves and free blacks, which were not crimes if committed by white people. I think it is well established that equal protection requires that people be punished similarly for similar criminal conduct. The issue, therefore, is whether the death penalty is reserved to punish only certain disfavored groups, while criminals from other groups are not subjected to such punishment, even when their conduct makes them eligible.


Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum
Arbitrariness and the Death Penalty | Race and the Death Penalty
Victims and the Death Penalty | Purposes of the Death Penalty
Teaching about the Death Penalty | Conclusion and Participants List
Unedited Death Penalty Forum

ABA Calls for Moratorium | Policy, Statistics, and Public Opinion
Multidisciplinary Teaching about the Death Penalty
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