Using the Death Penalty to Get Re-Elected

Alabama judges seem to impose the ultimate judgment more often in an election year.

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It is perhaps no coincidence that in Delaware — where judges are appointed — there are no convicts on death row as a result of judicial override. A decade-old study of Pennsylvania judges suggests that there is a positive correlation between harsher sentences imposed by judges against criminal defendants and the proximity of an upcoming judicial election.

The existence of such a correlation in the imposition of the ultimate sentence — death — is a devastating indictment of judicial elections. In fact, if judges are condemning convicts to death and overriding the judgment of the jury to improve their chances for re-election, we are looking at a system that can no longer rightly use the word “justice” to describe itself.

To understand the toxic brew of race, the death penalty and judicial elections, one need only read the words of one judge cited in the report, who substituted a death sentence over the jury’s recommendation of life in prison on a white defendant because if he didn’t impose the death-sentence override, the judge said, “I would have sentenced three black people to death and no white people.”

The EJI report is particularly disturbing when read as a companion to the report the organization issued last year that showed the consistent exclusion of blacks from Southern juries in criminal cases. In that report, Alabama once again held a place of special distinction.

Judges ignoring juries to impose death sentences on defendants who kill white victims? Blacks excluded from serving on Southern juries? The charges are lurid and retro but well-documented and devastating. They suggest — along with the now well-known cases of prosecutors framing black criminal defendants for murders they did not commit and withholding exculpatory information from defense counsel, the deaths of unarmed black men at the hands of police officers, racially disparate stop-and-frisk police practices and unconstitutional conditions of confinement in our nation’s prisons — that our criminal-justice system is in real trouble. 

Where are the congressional hearings on the findings unearthed in these reports and cases? Where is the U.S. Commission on Civil Rights, which was specifically empowered to “study and collect information relating to discrimination or a denial of equal protection of laws under the Constitution because of race, color … or in the administration of justice,” and to engage in the kind of long-term fact gathering that this very serious problem requires?

Without further delay, we need a federal inquiry into the findings of the EJI report. But we also need a broader, more comprehensive examination of our criminal-justice system and the persistent and pernicious role that race continues to play in how justice is meted out, from encounters with the police to conviction and sentencing. 

Whether the inquiry comes from Congress or the Commission on Civil Rights, or even from the Department of Justice, something must be done at the federal level. The U.S. can no longer turn a blind eye toward an uncomfortable but painfully obvious truth: that the legitimacy of our justice system is in deep peril. Outrage about the Casey Anthony verdict would be better directed toward addressing the widespread injustices in our criminal-justice system that have been amply documented by EJI and others, rather than a myopic focus on one admittedly disturbing case served up by television networks for our entertainment.

Sherrilyn A. Ifill writes about the law for The Root.

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