Montana Abolition Coalition

FAIRLY APPLIED?

Freakish & Arbitrary

The Constitution of the United States guarantees fairness and equity before the law. One of the death penalty's fatal flaws is that it is unfairly applied to the poor and minorities - a flaw that state governments have tried, and failed, to address.

The Death Penalty was declared unconstitutional by the Supreme Court in 1972, calling it “harsh,
freakish, and arbitrary” (Furman v. Georgia, 408 U.S. 238) due to dramatic evidence of its capricious and discriminatory use by the states. Although it resumed in 1976, significant fairness problems remain including sex of the perpetrator and socio-economic status.

Five years later, with new trial and sentencing requirements, states began to again execute individuals.

Thirteen years later in 1990, the U.S. General Accounting Office (GAO) reported, “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at
all stages of the criminal justice system process” (Death Penalty Sentencing, GAO, 1990).

In 1994, Supreme Court Justice Harry Blackmun wrote “The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” Death sentences are incurred for only about 1% of homicides in the US known to Police; and only 2% of people convicted of homicide are sentenced to death.

Today, race of the victim, sex, and socio-economic status continue to be factors which influence whether a person receives a sentence of death for a capital crime. If the victim is white, a defendant is more likely to be sentenced to death than crimes in which a non white victim is killed. More than 80% of capital cases involved a white victim, although nationally 50% of murder victims are white (DPIC). Juries are more likely to convict defendants of color.Between 1995-2000, 75% of federal cases in which juries recommended the death penalty involved black or Latino defendants (DPIC).

Discriminating against the Poor

Discrimination against the poor (who are also often racial minorities) is well established. Approximately 90% of those on death row could not afford to hire a lawyer when they were tried. A defendant’s poverty, lack of firm social roots in the community, inadequate legal representation at trial or on appeal – all these have been common factors among death-row populations. As Justice William O. Douglas noted in Furman, “One searches our chronicles in vain for the execution of any member of the affluent strata in this society” (408 U.S. 238).

Money buys good attorneys. Lack of money means you get whoever the state assigns to you. Supreme Court Justice Ruth Bader Ginsburg has noted, "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" (AP, 5/11/2001).

 

Random Application

Because of the nature of our legal system (the makeup of juries, prosecutors, defense counsel, and judges), an individual who commits a capital crime in one county may receive the death penalty while a similar person committing a similar crime in another county may receive a non capital sentence.

Because of factors which cannot be curbed by statute, such as the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the final decision by the governor/state board on clemency, the death penalty can never be applied fairly.

Although protection is now guaranteed by a Supreme Court decision, Montana's statutes do not protect the mentally retarded from execution.

Mental health experts have pointed out that the mentally retarded's characteristic suggestibility and willingness to please leads them to confess - sometimes falsely - to capital crimes.

James Red Dog, a Native American raised in poverty on a Sioux Indian Reservation in Montana, was exposed to alcohol and drugs from an early age and developed mental problems. He was diagnosed with bipolar disorder, and he suffered a number of head injuries throughout his life, including a fractured skull caused by his father when he was a child.

Yet he was executed in Delaware for a capital crime.

Fairly Applied in Montana?

Can a defendant receive a sentence of death for a felony in which s/he was not responsible for the murder? Yes

Are there safeguards enacted in Montana law against putting to death those with mental disabilities? No

Are there safeguards enacted in Montana law against putting to death those with mental retardation? No*

*The Supreme Court ruled in 2002 (Atkins v. Virginia) that it is unconstitutional to execute defendants with mental retardation.

Are there safeguards enacted in Montana law against putting to death juveniles? Yes, being a juvenile is one of the mitigating circumstances a court may use to impose life in prison rather than death*

The Supreme Court ruled in 2005 (Roper v. Simmons) that it is unconstitutional to execute defendants who were juveniles at the time of the crime. In its history, Montana has executed at least one juvenile, Frank Roberts (17 at the time of the crime). Ages for many individuals executed by the state of Montana are not known (or available).