Modern criminal justice systems and practices

Death penalty is generally conceived of as the supreme legal sanction, inflicted only against perpetrators of the most serious crimes. The human rights community has traditionally held a stance against the death penalty for a wide variety of reasons: critics argue that the death penalty is inhuman and degrading; that it is inappropriately applied and often politically motivated; and that rather than reducing crime, the viciousness of the punishment only serves as an inspiration to further violence.

Historically the death penalty has existed all around the world. Only since the beginning of the twentieth century has the death penalty been rejected by a growing number of people and states. International law discourages but does not prohibit it. Article 6 (paragraphs 2 and 5) of the International Covenant on Civil and Political Rights states that "sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime . . . . Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Regarding the nonreintroduction of the death penalty, the American Convention on Human Rights (Article 4.3) is the most explicit instrument, since it provides that "[t]he death penalty shall not be reestablished in states that have abolished it" (McGarrell & Sandys, 2008).

Although the death penalty is not entirely prohibited, several legal instruments have been brought into existence that seems to pave the way for total abolition. The Second Optional Protocol to the International Covenant on Civil and Political Rights (1991) aims at the abolition of the death penalty, by virtue of which thirty-three states have decided to abolish this punishment within their jurisdiction. It is in the European system that the trend has gone the furthest. The Convention for the Protection of Human Rights and Fundamental Freedoms now has a Protocol No. 6 Concerning the Abolition of the Death Penalty. This was adopted in 1982 by the Council of Europe's Committee of Ministers (Bohm, 2003).

According to data presented at the 1998 session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, fifty-four states have abolished the death penalty and fifteen others have done the same except in times of war. Twenty-seven additional states no longer apply the sentence, although it has not been made illegal. Finally, ninety-seven states maintain the death penalty in their legal systems. According to 1996 Amnesty International figures, China, the Ukraine, the Russian Federation, and Iran had the highest number of executions, accounting for 92% of the year's total. Although the execution of people under age eighteen is prohibited by international law, five nations have been accused by Amnesty International of continuing the practice-- Iran, Pakistan, Saudi Arabia, the United States, and Yemen (Bohm, 2003).

A death penalty carried out unlawfully comes under the competence of the Special Rapporteur on Summary and Arbitrary Executions elected by the UN Commission on Human Rights. The UN Secretary General, when apprised of impending executions that may not conform to the above-mentioned safeguards, can use his best endeavors, as he did in vain in 1986 with an appeal for the life of James Terry Roche. Roche was later executed in the United States for murder committed when he was seventeen (McGarrell & Sandys, 2008).

Among NGOs, Amnesty International has taken a leading role in pursuing abolition of the death penalty worldwide. The group argues that the death penalty is "an act of violence and violence tends to provoke violence. The imposition and infliction of the death penalty is brutalizing to all who are involved in the process." In 1998 Amnesty International protested the execution of Karla Faye Tucker in Texas, issuing a scathing critique of the Texas justice system, accusing it of "a litany of grossly inadequate procedures which fail to meet minimum international standards for the protection of human rights" (Bradizza, et al. 2006).

Apart from humanitarian and philosophical concerns, the most striking argument against the death penalty seems to be the fact that, as euphemistically stated by successive United Nations studies, "the deterrent effect of the death penalty is, to say the least, not demonstrated" (Bradizza, et al. 2006). However, the debate is still lively, as supporters of the death penalty remain firmly convinced that the punishment is a necessary and effective method of controlling crime.

With respect to the death penalty, the challenges ahead are still numerous, but the most fundamental goes beyond the legal sphere -- nations must grapple with whether or not "an-eye-for-an-eye" is the doctrine best suited to bring about justice (McGarrell & Sandys, 2008).

The imposition of a death sentence as a penalty for crime by the federal and state governments in this country raises enormously complex and important issues of substantive law, criminal procedure, morality, and ethics, almost all of which are beyond the scope of the present volume. What we focus on here are the many criticisms of the death penalty, almost all of which do not reflect well on state courts. The most persistent and documented criticism has been that the penalty has been applied in a racially discriminatory way. That is, among other things, black criminal defendants are more likely to be sentenced to death as compared to their white counterparts.30 And while the Supreme Court in the 1970s began subjecting the penalty itself and its attendant procedures in state courts to scrutiny under the Eighth Amendment, (McGarrell & Sandys, 2008) since then, it is often said, a majority of the Court has in effect "deregulated" the process and permitted the state great latitude in the court procedures they follow when considering whether to impose these penalties. Concern with these procedures, and related concern with the adequacy of defense counsel (almost always appointed) and other issues led the American Bar Association in 1997 to call for a moratorium in the states on the imposition of the penalty (Bohm, 2010). Finally, it is often said that state judges find it particularly difficult to fairly adjudicate the rights of defendants in these cases. Support for (or opposition to) the death penalty has become a high-profile issue in the 1980s and 1990s in elections in general and judicial elections in particular. In that environment, it is often difficult for a state judge facing election to make rulings that may allow a defendant to avoid the penalty, given possible retribution at the polls. As proof, the electoral defeats of three California Supreme Court justices in 1986 are often cited, widely attributed to the votes of these jurists to set aside death penalties upon appellate review. For over three decades, all executions in this nation have been administered by states. (Federal death penalty statutes were reenacted starting in the late 1980s, and since then several federal defendants have been sentenced to death, but as of 1999 no executions of those individuals had taken place.) It is no surprise, then, that virtually all proposals to reform death penalty litigation (short of outright abolition) have been directed at the states, and usually involve actions taken at the federal level, by Congress or the federal courts (Bradizza, et al. 2006). For example, with regard to the disparate impact of the penalty on African-Americans, a Racial Justice Act proposed in Congress in the late 1980s and early 1990s would have permitted the introduction of statistical evidence, in both federal and state courts, to demonstrate that prosecutors and other state officials were administering the death penalty in a racially discriminatory manner. (It didn't pass.) (Vidmar & Dittenhoffer, 2011). But on this and other death penalty issues, we think state political institutions, including state courts, can and have a productive role to play. Judicial federalism has the potential to ameliorate rather than exacerbate problems associated with death penalty litigation.

Put another way, viewing some of these issues from the perspective of judicial federalism can inform both the descriptive and prescriptive analysis. Virtually all of the scholarly discussion of the death penalty has been of purportedly national trends, and thus has treated all states, and state courts, more-or-less alike. In a similar view, Franklin Zimring has opined that the "political science of capital punishment" is a "vast and neglected topic." (Cochran & Chamlin, 2011). He points out that a few Southern states (mainly Texas, Alabama, Georgia, and Florida) account for many of the rising tide of executions in the 1980s and 1990s. Some thirty-eight states have death penalty statutes on the books, but only a few states by the late 1990s were actively executing prisoners. The low or absent rate of executions in states outside the South, Zimring speculates, may be attributable in part to ambivalence of public officials in vigorously imposing the penalty, even among those who publicly support it (Cochran & Chamlin, 2011). An alternative explanation, of course, is that skillful lawyers and sympathetic federal and state judges have in many cases delayed or thwarted entirely the imposition of the penalty (McGarrell & Sandys, 2008). Perhaps both theories have explanatory force, especially outside of the South.

Race and the Death Penalty

In 1972, the Supreme Court decided 5 to 4 the landmark case, Furman v. Georgia, effectively ending the death penalty in the United States. The Furman case, as it is most typically referred to, was actually 3 consolidated cases, Furman v. Georgia, Branch v. Texas, and Jackson v. Georgia. All three cases dealt with Black defendants and White victims and presented 8th and 14th Amendment challenges before the Court. In the years prior to Furman, jurors typically were allowed unbridled discretion in deciding death penalty cases, apropos, in the year prior to Furman, the McGautha case (McGautha v. California) was decided raising the same issue but under a different due process challenge. Where McGautha failed, Furman succeeded by raising a claim that the death penalty as administered led to arbitrary decision making via unchecked discretion thus amounting to cruel and unusual punishment in violation of the 8th Amendment (McGarrell & Sandys, 2008).

The Furman decision, over 200 pages in length and the longest Supreme Court decision to date (Acker, 1998), represented 9 different opinions from the Justices. Amidst the opinions, an identifiable theme of the majority's opinions was that in a number of ways the administration of capital punishment was unconstitutionally arbitrary, capricious, and discriminatory (Poveda, 2009). Justice Stewart declared that the death penalty was meted out in wanton and freakish manner (Furman v. Georgia, 1972, p. 310). Although offering different opinions, it was clear from some of the Justices that racial discrimination was a central concern. Though Justice Stewart focused on the seemingly random way the punishment was meted out, he further commented on the likely racial discriminatory manner in which the punishment was assigned. He declined to comment further while recognizing the opinions of other Justices in dealing with the matter. For example, according to Justice Douglas, the death penalty at the time was "pregnant with discrimination" and noted that, "discrimination is not an idea compatible with the idea of equal protection of the law that is implicit in the ban on 'cruel and unusual' punishments" (Furman v. Georgia, 1972, pp. 255-257). Thus, the ultimate problem of capital punishment administration was that it was randomly given to a select few based on likely impermissible factors (Morgan, 2008). Of note, both Justices Brennan and Marshall believed the death penalty to be per se unconstitutional while noting its infrequent use. The decision was not so easily accepted, and had the effect of re-sentencing more than 600 capital convicts to life imprisonment (Morgan, 2008), a lesser prison term, or for some, resulted in a new trial (Sarat & Vidmar, 1976). Following much controversy from Furman, legislators heeding the words of the Supreme Court immediately began drafting legislation to make the death penalty's administration align with the Supreme Court's declared Constitutional mandates. The rebounded legislation was aimed at curbing the standardless way that the death penalty had been administered by narrowing and guiding the discretion allowed to the fact finders in the case. This was done in several ways, including the introduction of balancing schemes for statutory aggravators and mitigating evidence, the use of bifurcated trials whereas the guilt and punishment phases were presented separately, and requirements for automatic direct review (Sarat & Vidmar, 1976). By 1976, only a few short years after Furman was decided, these appropriately drafted statutes aimed at limiting discretion, the presumed cause of arbitrariness and hence discrimination, were found constitutional (see the 1976 cases, including Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153). The result was the birth of the modern death penalty era. As of January 1, 2010, 36 States, the Federal Government and the U.S. military retain capital punishment in the United States.

These newly drafted death penalty statutes aimed at limiting discretion, however, were not without their own controversy, and death penalty cases then and now are regularly before the Supreme Court. Years after the Furman case was settled and beyond the declarations of the Court that the new death penalty legislation satisfied the Constitution, research began showing that these guided discretion frameworks had problems of their own (Sarat & Vidmar, 1976). In addition and aside from legal battles over the rules of narrowing discretion and what constituted a proper balancing scheme for aggravation and mitigation, one issue in particular gained prominence among researchers: the practice of death qualifying the jury and its unintended consequences. Indeed, regardless of the statutes designed to accommodate Furman, some have argued that an important source of capital case racial discrimination still resides within the death qualified jury (Morgan, 2008). The idea behind death qualification is a simple one. In an attempt to make sure that jurors can follow the law, only potential jurors that can legally apply the death penalty are allowed to sit on a capital jury. Those so opposed to the punishment that they will not follow the law and apply the death penalty to an arguably deserving murderer are excluded from serving in capital cases. It has been argued that this process of death qualification is one way that prejudice and hence discrimination finds its way into capital cases and as such will gain prominence in further discussion. However, before a conversation can be engaged about how death qualification may lend to biased case outcomes, it is important to understand the nature of capital cases today with a focus on the disparities (Sarat & Vidmar, 1976).

Scope of Capital Cases and the Nature of the Racial Discrimination Debate

The NAACP Legal Defense Fund (LDF) with consultant Deborah Fins compile relatively up-to-date figures on the death penalty in their periodic publication, Death Row, USA. As of January 1, 2010, the NAACP LDF reports that 1,188 inmates have been put to death since the reinstatement of capital punishment in 1976. Also, as of that date, there were 3,261 inmates on death row, and of those, White inmates made up approximately 44% of that number, while Blacks on death row represented about 41% (Morgan, 2008). Some have used these unadjusted figures to argue that discrimination is still operating in light of racial representation in the general population. According to the U.S. Census's 2006-2008 American Community Survey, Whites constitute about 74% of the population while Blacks represent about 12%. One would expect that the racial composition of death row would mirror that of the population. Obviously, it does not (Vidmar & Dittenhoffer, 2011).

Much of the controversy about the racial disparities in capital case outcomes, however, centers around an observed race of the victim effect recognized by researchers David Baldus, Charles Pulaski, and George Woodworth a couple of decades ago. Such evidence also was presented to the Supreme Court in the case, McCleskey v. Kemp (1987). That is, defendants (particularly if they are Black) who kill White victims are more likely to be put to death. Though more detail on this observation will be reported later, it is important to note that the current numbers still partially illustrate this phenomenon: Whites make up roughly 78% of the victims in capital cases, while Black victims represent only about 15% of these cases (NAACP Legal Defense & Educational Fund, 2010). This may seem reasonable in light of racial representativeness in the general U.S. public; however the general population is not the present interest. The concern here is the population of victims. While numbers vary somewhat by year, in 2009, about 49% of murder victims were White, and the same percent were Black (FBI, 2009). This distribution remains relatively stable over time. For example, over the years from 1976-2005, the numbers are comparable to the 2009 figures; about 51% of victims were White, and approximately 47% were Black (FBI, 2005). Some argue that this disparity still illustrates the nature of the discrimination in capital cases. Though the methodology in studying this phenomenon is much more complex than comparing percentages, the much larger accounting on death row of defendants with White victims compared to their representation in murder cases, it is argued, illustrates that a premium has been placed on White lives as opposed to Black lives -particularly when other factors are controlled for (Bohm, 2003).

This issue is obviously an important one to sort out. Can these disparities be explained away? Some have argued that the difference is based on a type of crime effect. For example, a study conducted by Joseph Katz suggests that the reason for the disparity is based in legal considerations. Specifically, Blacks are more likely to be put to death for felony murders resulting from armed robberies and as such, the race of the victim effect is explained away as more of these victims are White (Sarat & Vidmar, 1976). In essence, the effect is spurious and goes away when controlling for the types of crimes committed by these different racial groups. However, this research fails to tell us why we would perceive these crimes, and perhaps these defendants with White victims, to be more aggravated and hence death eligible to begin with. Further, and counter to the stated findings of Katz, the United States Government Accounting Office (1990) has concluded that the best studies on the issue illustrate that over time and space, race is playing an unjustified role in capital sentencing decisions (Bohm, 2003). The question remains as to how this is happening.

Juvenile Delinquency

We shall examine the societal and cultural influences on the nature of Juvenile Delinquency resulting in laws and their enforcement. Two scholars set out to get some descriptive data about unapprehended law-breakers by distributing a questionnaire listing 49 offenses under the penal code of the state of New York (Tversky & Kahneman, 2010). Of these offenses, fourteen were felonies, seven might be felonies under certain conditions; the rest were misdemeanors. All of them were sufficiently serious to draw a maximum sentence of not less than a year. Replies were returned anonymously to insure frankness. The study was not a rigidly scientific one, but was carefully and critically prepared and tabulated. Some effort was made in distributing the questionnaires to secure a balanced racial and religious community cross-section, although this could not be done with precision (Crosby, et al. 2007). Economically the group was probably weighted on the upper income side. Replies were received from 1,698 individuals, 1,020 men and 678 women. Geographically most of the responses came from the metropolitan area of New York, Westchester and Long Island, but there was a scattering from upstate New York, Pennsylvania, Ohio and California. Ninety-nine per cent of those questioned answered affirmatively to one or more of the offenses. The number of offenses per persons ran high (Faust, 1989).

Personal comments appearing on some of the questionnaires reflected the ethical viewpoint of the individuals (Hoge & Andrews, 1996). Their rationalizations would not be acceptable in defense of their action if they had been apprehended and brought to court. A housewife over sixty, admitting to false testimony, added this statement: "It made no difference in the outcome, and I did it to spare someone pain" (Grisso, 1996). An artist made this comment on the same question: "It was a divorce action and I'm a gentleman." A doctor, admitting to taking a car without permission, penciled in the word "emergency." A businessman who opened someone else's mail appended this explanation, "Tried to keep my son from making a fool of himself, but he did it anyway." A girl student justified illegal opening of somebody else's mail with the explanation, "She (roommate) opened my mail first." A minister, who confessed to making false statements about a commodity that he sold, betrayed traces of his moral struggle in the comment, "I tried truth first but it's not always successful." Annoying letters were sent by a social worker to her husband, by a student to his teacher and by a salesclerk to his boss. A laborer who had broken in and taken property took pains to note that he "put it back later" (Crosby, et al. 2007).

Several persons stated that they had had to falsify their religion to get a certain job, others reporting violation of birth control or of gambling laws regarded the laws themselves as stupid and therefore they saw nothing wrong in violating them. Larceny under $100 in value covered such items as towels, a bathmat, a spoon and stamps (Endler & Magnusson, 1976). One man asserted that his high bill gave him at least a moral right to steal from the hotel where he was staying. Another excused himself for stealing from his employer by observing, "My boss is a jerk." A mechanic who falsified to get someone to sign a document explained that the paper in question was his marriage license. A farmer faced with the issue of whether or not he had been guilty of assault without provocation wrote "no" in the designated space, but added the comment, "Thrashed a lot of men in my time but they all jolly well deserved it" (Grisso, 1996). A woman artist decided to call herself guilty of assault but with the qualifying phrase, "Threw ash tray at an unbearable cad." A self-styled criminologist over sixty gave up after reading the questionnaire and returned it with the sweeping comment, "Too much trouble, I've done them all" (Crosby, et al. 2007).

An increasingly vociferous school of thought in American social science subscribes to the position that etiology in social problems has failed largely because it has overlooked the proper frame of reference for study and analysis; namely, American society itself. It has probed only segments and only the "outer crust," so to speak (Grisso, 1996). The impelling forces to delinquency inhere deeply in the culture of the American people. This calls for a much broader perspective than is involved in the examination of the family, peer group, or media of communication (Children's Defense Fund, 2008).

Culture dominates behavior. It dictates what most people will do most of the time. If part of our culture is "criminogenic," then part of the people will engage in delinquency and crime. For example, in a competitive society organized around profit, people will murder for profit (Grisso, 2009). When a competitive society moves toward large-scale production the people will also move toward large-scale murder. Those who support this theory assert that any attempt here to draw an arbitrary line between juveniles and their elders in the population is unrealistic and indefensible, resembling the attempt formerly to see only problems of the individual rather than those of society (Endler & Magnusson, 1976).

The theory of the "juvenile in delinquent society" is not without its detractors (Loeber & Hay, 2009). Some see it as an avenue of escape from more rigorously controlled thinking. This, of course, may be true of any frustrated search for specific answers which leads to wholistic but ambiguous substitutes. Whether or not it is true, however, depends on the analyst and the student. Others have been reluctant to adopt the theory because they maintain that, under the guise of moral detachment, it actually imputes moral blame to a reified combination of individuals -- all of us (Daleg & Levader, 2007). This, too, is a possibility, especially among those who are adept in the misuse of a theory by moralization and reification. Again, however, it need not be the case, for the weakness lies potentially in the analyst and student, not in the theory. Still others detract from the theory because they believe that it carries the deterministic premises of social science to a point of absurdity, the point where human beings are mechanistically conceived to be irresponsible, passive products of their environment. Here we find a perennial, futile question: Do we make society or does society make us? The answer probably is that both propositions in the question are partly true. One does not exclude the other. The theory of a delinquent society simply implies that society plays an incredibly greater role in making the individual juvenile delinquent than the individual freely determines for himself (Grisso, 2009).

The structure and functions of American society are obviously too complex and ramified for an adequate analysis in one chapter. As a matter of fact, entire volumes devoted to the subject can do no more than define the outlines and sample the content of such a vast subject (Hoge & Andrews, 1996). For the purpose of this book, a detailed analysis of American society and culture is unnecessary. It should be kept in mind that we are dealing here with only one aspect -- namely, the alleged delinquent and criminogenic traits of the society and culture -- rather than a comprehensive picture of the American way of life (Crosby, et al. 2007).

Society, Culture, and Values

The culture of every society comprises learned and socially shared symbols to which conventionalized understandings are given. These symbols each stand for objects, concepts, images, social processes (or norms) and social objectives (or goals) of varying degrees of concreteness and abstraction (Crosby, et al. 2007).

Social values refer to those cultural symbols which have become meaningful to members of the society in terms of the two criteria of truth and worthwhileness (Tversky & Kahneman, 2010). The social values of a society are so meaningful to members of the society that they accept them largely without the demand for proof and without skepticism (Loeber & Stouthamer-Loeber, 2006). Bernard has suggested that one may test what is and what is not a social value by imagining a person being elected to office on a platform advocating a specific program. If there is no hesitation in imagining that he will be elected, then there is no question that the program contains values held by the society (Grisso, 2009). If there is doubt, the program conflicts with the voter's values. In most American communities it would be impossible to elect a man to office on a program advocating more poverty, disease and ill health, aggressive war, ignorance, and illiteracy. American values can also be inferred from Fourth of July orations, sermons, and the like. A second test of values, therefore, is their triteness. That is, they are taken for granted (Children's Defense Fund, 2008).