While the death penalty is not cruel and unusual in and of itself, it should be abolished because of its unjust application. The more severe a penalty is, the more important it becomes to inflict it fairly and equally on all and only those who deserve it. However, capital punishment is often implemented with racial, gender, and class biases and therefore does not provide for equal treatment under the law. In theory, it may be the case that a sentence of death is justified, but the potential for abuse in the practice of carrying out the death penalty renders its use unacceptable.
For instance, there is a great deal of evidence suggesting that the race both of the defendant and the victim play a significant role in returning a death sentence. Different punishments are imposed based on the perceived worth of the individuals involved and not on the basis of what is deserved. This leads to obvious discrimination in the way the dea:h penalty is applied. Based on the disproportion in the severity of sentences returned for similar crimes, juries seem to have more sympathy for white victims and their families, as well as for killers who are white. While women commit 40% of the murders in the U.S., they make up only 1% of the prisoners on death row.
In addition, consider the fact that more than 90% of the 2,400 people on death row were unable to afford an attorney. Given that many court-appointed attorneys are grossly underpaid in comparison to their colleagues in private practice, oftentimes there is very little incentive for providing the most zealous defense for their clients. To make matters worse, in 1989 the Supreme Court denied that indigents on death row have the constitutional right to counsel at the state’s expense for postconviction proceedings related to the convictions and sentences received. Thus, the guilty poor are much more likely to be executed than the guilty rich, who can more easily escape conviction or receive lesser penalties.
Furthermore, the death penalty, unlike other penalties, is irrevocable. We cannot ignore the fact that the use of capital punishment may lead to the execution of the innocent. Compensation can be provided for those who are wrongly imprisoned, but cannot be offered to those who are mistakenly executed. Thus, Anglo-American law has long held that “it is better that ten guilty persons escape than one innocent suffer”.
The principles of justice and fairness often appealed to by those who want to retain the death penalty entail not only that it is wrong to punish the innocent but also that those who are equally deserving of punishment should be punished equally. The above considerations should lead one to the conclusion that even if the state has the right to use the death penalty, it should not be applied without widespread reform of the present system.