Owen Courreges: The real problem with the death penalty

Owen Courrèges

Crime is an omnipresent concern in New Orleans, particularly murder.  When I first moved back to the city prior to entering law school, my landlord treated me to the story of how one of her neighbors was shot while he was walking about, minding his own business, in the driveway next door.

Although that shooting had occurred in the 1970’s, it was still unnerving.  I was renting an apartment in the Garden District less than a block off of St. Charles.  I didn’t think shootings occurred on my block.

A couple of years after I moved in, I began to notice strange men late at night smoking on the balcony of the house across the street.  I didn’t think much of it until I came home one day to find the block swarming with police.  It turned out that a former Loyola law student who was renting the apartment had been running a drug and prostitution ring.  The men smoking on the balcony were apparently “Johns.”

So yes, I’ll admit, crime is something I’m concerned about.  I’m concerned enough about it to where I want the guilty to be punished to the fullest extent of the law as opposed to a slap on the wrist.  For better or worse, higher incarceration rates tend to correlate with lower crime rates.  To paraphrase humorist Scott Adams, if criminals are in prison, they aren’t running around committing more crimes.

The real moral quandary, however, comes with the death penalty.  In a diverse city like New Orleans, the debate often comes down to race.

Recently, Times-Picyaune columnist Jarvis DeBerry wrote a column entitled “What New Orleans jury will vote for the death penalty?”  DeBerry wondered aloud whether District Attorney Cannizaro could secure a capital sentence against any defendant given his failure to secure death penalty verdicts in high profile, brutal, multiple homicides.  Despite New Orleans’ high murder rate, it is still strongly averse to the death penalty.

In the course of making this argument, DeBerry pointed out that the death penalty is more likely to be meted out where the victim is white.  Afterwards, his e-mail box erupted with complaints. On Nola.com, where his column is hosted online, the comments section overflowed with criticism, some of it racially hostile (Note to Nola.com: Hire some moderators to get a handle on your message boards).

Accordingly, DeBerry penned a follow-up column defending his use of victim statistics, arguing that the disparity “is reason enough to oppose the death penalty.” DeBerry jumped to the conclusion that the only explanation for the disparity is that the death penalty “system” values white lives over black ones.

DeBerry’s argument, though frequently raised, is overly simplistic.  DeBerry ignores the fact that most murders are intra-racial: the race of the victim closely correlates with the race of the perpetrator.  As such, the flipside of DeBerry’s argument is that blacks who commit murder are actually less likely to receive the death penalty than whites who commit murder.

As Bruce Ramsay of the Seattle Times argued late last year: “The vast majority of murderers kill within their race. And in 2009, 48.7 percent of murder victims were white and 48.6 percent were black. Look at arrest statistics: 48.7 percent white, 49.3 percent black. The disparity between the races is *already there at the point of arrest*. And the victim statistics suggest it is there at the point of the crime.”

Because of this correlation, you can argue that the death penalty is racist against white perpetrators or black victims depending on your point of view.  Do jurisdictions sympathize more with black over white perpetrators?  Or is it the victims they’re focusing on?  DeBerry seems to assume that it’s the victims because it suits his argument.

Likewise, in a nation with much de facto racial segregation where juries are recruited from the local population, many black defendants face majority black juries.  DeBerry’s  original column questioned whether Cannizaro could ever secure a capital conviction with a New Orleans jury.  DeBerry fails to note the fact that New Orleans is roughly two-thirds black, and blacks overall are less likely than whites to support the death penalty.  This at least provides a plausible explanation why blacks would be less likely to receive the death penalty, and it’s one that doesn’t involve racism on anyone’s part.

Don’t get me wrong, DeBerry could still be correct, but it’s far from obvious.

Due to the massive number of potential variables involved, racial disparities provide a poor basis for opposing the death penalty.  Trying to perform a multivariate analysis that identifies the secret motivations of juries is virtually impossible, and I personally find the non-racial explanations I have suggested to be more persuasive on balance.

However, this does not mean that the death penalty is a walk in the park from an ethical perspective.  Personally, I am conflicted about the imposition of capital punishment and would prefer that it be reserved only for the worst offenders, those who will continue to pose a serious threat to human life even in prison.

Likewise, given the moral morass that is capital punishment, there is a question as to why we should support it at all.  Overall, capital punishment is on the wane.  As DeBerry accurately noted, even the death penalty capitol of Harris County, Texas (my previous home) has slackened up in its use of the death penalty.

The best explanation I can come up with is frustration with crime.  The rugged individualism that characterizes the American psyche is unlikely to countenance offenses against person and property, and more likely to characterize justice in harsher terms.  We’re the country that rallied behind fictional “anti-heroes” such as Dirty Harry in reaction to rising crime rates, even though he bent the rules, defied the system and treaded close to exacting street justice.

Today, with consistently declining crime rates, people see less reason to support the death penalty.  We’re incarcerating more and executing less.

However, in a time when neighbors were being shot in driveways in the Garden District, I could sympathize more with the instinct for decisive justice.  After all, crime is something I’m concerned about, yet there are times when our fears, like our biases, should take a back seat to our consciences and reasoned judgment.

Ignore the sideshows.  Get to the heart of the issue and make up your own mind.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.