While we’re on the subject . . .

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In his chapter, “Capital Punishment,” in the American Bar Association’s The State of Criminal Justice 2019,  Ronald J. Tabak reviews significant developments through the past year up to and including the May 30 abolition of the death penalty in New Hampshire. He notes that since the death penalty resumed in 1972 after the U.S. Supreme Court decision in Furman v. Georgia, “There was not in 2018 a single county in the entire United States in which more than two death sentences were imposed,” and how the tide has turned in formerly high death sentencing states like Georgia, which has now gone five years without a new death sentence, and North Carolina, which has had two consecutive years of no death sentences.

“Attitudes toward the death penalty, much like attitudes toward LBGTQ issues and recreational marijuana, are changing more rapidly and more profoundly than attitudes about any other social issues in America,” according to University of Colorado Sociology Professor Michael L. Radelet in his commentary, “It’s Time to Revisit the Death Penalty,” in Medium.  Among the reasons for the changes in attitude, he says, are the “documented shortcomings in how the death penalty is actually applied — racial bias, economic bias, cost, sentencing the innocent to death and pure arbitrariness,” and the result is what Justice Thurgood Marshall predicted in 1972, “that if people were better informed about the death penalty, they would reject it.”

In her article, “Reimagining Prosecution: A Growing Progressive Movement,” American University Law Professor and former public defender Angela J. Davis points out that, “Prosecutors are the most powerful officials in the criminal justice system.” But while noting that at least 90 percent of all criminal cases are prosecuted on the state level by district attorneys who are elected and “run unopposed and serve for decades,” she points to a number of recent elections in which a number of these incumbents have been defeated by progressives who “pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system.” The result has been mixed, with challenges and successes, she says, and she offers guidelines to assist these progressive DAs, like Kim Foxx in Cook County (Chicago), Larry Krasner in Philadelphia, and Rachael Rollins in Suffolk County (Boston), in their efforts to reform the criminal justice system.

The New York Times reported late last month that current San Francisco district attorney George Gascón is seriously considering challenging current Los Angeles district attorney Jackie Lacey in 2020, when she is up for reelection. Gascón was a Los Angeles police officer in the 1990s. Several criminal justice organizations, including Black Lives Matter and Smart Justice California, say Gascón has been meeting with them, and has expressed his commitment to ending mass incarceration. In addition, he has been an outspoken opponent of the death penalty, in contrast to Lacey, who the ACLU reported last month has presided over an office that prosecuted 22 death penalty cases since she took office in 2012. In those cases, every defendant was a person of color.

In her article, “The ‘Death Penalty’s Dred Scott’ Lives On,” in the Atlantic, Annika Neklason writes that, “The record of systemic disparities in U.S. capital cases is long and well documented. Compounding the biases that pervade the entire criminal justice system, including in jury selection, states are more likely to seek and secure a death sentence in cases involving white victims, especially if the defendant is black.” But despite proof that these biases are widespread, “The success of discrimination-based challenges to the death penalty has been piecemeal,” she says. She points to the U.S. Supreme Court’s opinion in McCleskey v. Kemp (1987), in which the Court came “within one vote of potentially striking down capital punishment in the state — but instead affirmed a standard that civil rights advocates have been fighting ever since.” She cites Justice William Brennan’s dissent in which he compared the decision to Dred Scott v. Sandford (1857), which barred black citizenship, and Plessy v. Ferguson (1896), which protected segregation, and said, “The reverberations of injustice are not . . . easily confined.”

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