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Unformatted text preview: M. CHOLBI RACE, CAPITAL PUNISHMENT, AND THE COST OF MURDER* In recent years, American discussion about capital punish- ment has shifted its focus from the question of the inherent morality of capital punishment itself to the justness of its administration. Opponents of the death penalty now rarely argue that death is itself an immoral or ineffective punish- ment but rather that the risks of its being unfairly applied are intolerable. In particular, death penalty opposition groups have made some headway, both legally and in the court of public opinion, by publicizing wrongful convictions and exe- cutions. However, surprisingly little attention has been paid to an- other long-standing procedural worry about the death penalty in the United States, namely, the apparent racial disparities in capital sentencing. 1 Empirical studies dating back to the 1940s indicate that, all other things being equal, racial minor- ities, particularly African-Americans, are disproportionately more likely to receive the death penalty for murder than are convicted whites. 2 The U.S. General Accounting Office con- ducted a comprehensive review of the relevant studies in 1990 and concluded that even with the reforms sparked by the Supreme Court’s 1972 decision in Furman, 3 racial disparities in the ‘‘charging, sentencing, and imposition of the death penalty’’ persisted. For example, three-fourths of the studies examined by the GAO determined that black defendants were more likely to receive the death penalty, especially when their victims were white. 4 State and federal government studies conducted since 2000 largely confirm these findings. 5 In effect, murder functions as a status crime in the U.S., with one set of prescribed punishments for African-Americans and an- other set for other offenders. Philosophical Studies (2006) 127:255–282 Ó Springer 2006 DOI 10.1007/s11098-005-4958-6 At one time, such charges of racial injustice were a key weapon in the arsenal of death penalty abolitionists. The Furman decision was partially based on concerns about such racial disparities, but since the Court’s decision in McCleskey vs. Kemp in 1987, the issue is no longer as prominent among the arguments of death penalty opponents. However, I be- lieve that the issue of racial disparities in capital sentencing deserves to be reinvigorated and reconceptualized. Further- more, once the racial injustice in question is understood not as a judicial wrong done to particular minority defendants, but as a political wrong inflicted on African-Americans as a class, we will find that a moratorium on the use of the death penalty in the U.S. is appropriate at this historical moment. 1. RACIAL DISCRIMINATION AND THE COURTS The Supreme Court’s decision in Gregg 6 in 1976 ended the de facto moratorium on capital punishment. Since then, the arguments of capital punishment opponents have not been warmly welcomed in American courts, and the argument that the death penalty is imposed in a seemingly racist fashion is...
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This note was uploaded on 09/08/2010 for the course PHIL 292 at San Jose State.

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