Poverty and the Death Penalty
Johnson, Jeffery L., Johnson, Colleen F., Journal of Economic Issues
Disparities of wealth are inevitable within capitalism. Perhaps nowhere are these disparities more disturbing and deadly than in our system of justice and, in particular, in the way in which the death penalty is meted out in the United States. Our thesis is a simple one: Capital punishment in the United States is administered in an economically discriminatory way. The wealth disparity between those murderers who live and those who die constitutes a serious constitutional challenge to the permissibility of the death penalty. Our argument is not that we should somehow pity the vicious first degree murderer because of his economic misfortune, or in any way excuse or mitigate the moral and legal gravity of his offense, but rather that the most severe and solemn form of criminal punishment must be administered in a more economically evenhanded way in order for any of us to take comfort in believing that justice was served by the murderer's death at the hands of the state. Our failure as a society to ensure some se mblance of economic equality in our harshest criminal punishment constitutes a kind of procedural cruelty that is inconsistent with the Eighth Amendment to our Constitution. Unfortunately, our Supreme Court has demonstrated an almost pathological reticence to consider issues of class and wealth (see San Antonio v. Rodriguez).
We employ a strategy that might be called an "argument from contingent realities." We grant that moral, legal, or constitutional rules might sanction some practice in a more perfect (just, fair, equitable, etc.) world, but argue that given the contingent realities of the actual world, the practice in question is not to be permitted. That is, in the abstract capital punishment may not be unconstitutional, but in fact the way in which it is dispensed, we believe, puts it at odds with the Eighth Amendment and the Equal Protection Clause.
Our Supreme Court seemed to have employed something like the contingent realities strategy in its very famous and controversial 1972 decision in Furman v. Georgia. They were concerned that there seemed to be no rational link between the most serious murders and the death sentences imposed in individual trials. One could easily find cases in which equally brutal murders resulted in a death sentence in one trial and in a prison sentence in another. Indeed, it was relatively easy to find cases in which a much more atrocious murder resulted in prison when compared with another murder that resulted in a death sentence. Justice Stewart used the helpful analogy of being struck by lightning to illustrate the contingent reality of rape and murder trials in the 1960s.
Since the Court saw the arbitrariness and capriciousness of capital punishment to be a direct function of unfettered jury discretion, the state of Georgia, in what became a model for the other states, set about to correct the problem. They first more narrowly defined the crime of aggravated first-degree murder. In addition they mandated a scheme of bifurcated trials--the first phase in which the jury determines factual guilt or innocence, and the second phase devoted to the jury's consideration of "aggravating" and "mitigating" circumstances that bear on the appropriateness of death. And finally they instituted automatic appellate review of all death sentences. In its pivotal 1976 decision in Gregg v. Georgia our Supreme Court ruled that "the statutory system under which Gregg was sentenced to death does not violate the Constitution."
We believe that a quarter century's experience with the post-Furman death penalty procedures is an embarrassing constitutional failure. The apparent caprice and unfairness in our application of state-sponsored death is every bit as prevalent as it was before 1972. There are at least two independent reasons for this.
The first is jurisprudential. In a series of decisions in the 1970s the Court mandated the following two constitutional directives: