America Is Abolishing the Death Penalty—but Let’s Fix the Criminal Justice System

The U.S. has 5 percent of the world’s population but 25 percent of all prisoners.

Protesters stage a "Day of Anger" march in New York City in the wake of grand jury decisions not to indict white police officers in the deaths of two unarmed black men, on Dec. 13, 2014. (Photo: Andrew Burton/Getty Images)

May 29, 2015· 2 MIN READ
David A. Love is a writer based in Philadelphia. His work has appeared on CNN and been published by The Grio, The Progressive, and The Guardian.

Earlier this week, Nebraska became the first conservative state in 40 years to abolish the death penalty. The Republican-controlled legislature in one of the deepest-red states overrode the veto of Gov. Pete Ricketts, also a Republican, effectively dismantling what has been a cornerstone of conservative criminal justice policy for much of the last half-century. Nebraska lawmakers also voted to make life without parole the highest criminal penalty in the Cornhusker State.

With seven states in as many years abandoning the death penalty—for a total of 19 abolition states and 31 remaining death penalty states—it is heartening to see America moving toward an end to capital punishment. However, we must urgently, and smartly, fix the underlying issues that still drive people into the criminal justice system.

Americans promote the sentence of life without parole as a worthy alternative to execution. The argument is painfully simple: Society should “lock ’em up” and throw away the key. But this is draconian, and it proves how we’re addicted to incarceration. It’s also why America has the dubious distinction of being the world’s incarceration leader. We have 5 percent of the world’s population—but 25 percent of all prisoners. More than 2 million people languish behind bars in the land of the free, including one in every 99 adults.

Far too often, the nation has shunned rehabilitation in favor of pure retribution and punishment. Prisons have served as a cash cow, a form of social control, and a substitute for quality public education and jobs. The poor and people of color bear the brunt of mass incarceration, a consequence of a war on drugs that targets them for stop-and-frisk, arrest and conviction. More than 60 percent of prisoners are racial and ethnic minorities, and one in 10 black men in their thirties are in prison or jail.

Our system of plea bargaining prioritizes expediency over guilt or innocence, as most indigent defendants, unable to afford a dream team, are provided inadequate legal representation. Nearly 94 percent of state cases and 97 percent of federal cases end in plea bargains, where defendants agree to plead guilty in exchange for a lighter sentence.

The criminal justice system is rife with discrimination, corruption and abuse. Some officers plant evidence or beat confessions out of suspects, while witnesses commit perjury and prosecutors hide exculpatory evidence and strike jurors of color. As a result, there are more than 1,600 known criminal exonerations on record, including 153 wrongfully convicted death row inmates who established their innocence. An innocent person is released from death row for every nine executions, and an estimated 4.1 percent of death row is innocent.

The funneling of so many people into the system comes at a substantial human cost. The war on drugs has decimated communities and separated families as children grow up without their parents—leading to a vicious cycle of violence and imprisonment. For every 100 black women not in jail, there are only 83 black men, a total of 1.5 million missing black men, mostly due to prison and early death.

The multitudes of the incarcerated cannot raise or support their families, build their neighborhoods, or become productive members of society. As prison spending competes with education and social welfare programs under state budget constraints, private prison corporations are awash in profits. Further, drug task forces benefit from the military hardware, asset seizures, forfeitures, and other trappings of a police state that bolsters mass incarceration.

Our country cannot incarcerate its problems away. We must take specific actions to reform its administration of justice. For example, poverty should not serve as an impediment to proper legal representation. Law enforcement—the front line of this system—must transform itself in communities of color, away from the function of slave patrol or occupying army to the role of a positive change agent, accountable to the community. The U.S. can halt its war on drugs and the criminalization of people of color. Emptying and shuttering many prisons will allow us to divert resources to education, infrastructure, and programs of social uplift, and prioritize full employment.

In addition, a diverse nation must diversify its legal profession, as we cannot justify a legal community that is 90 percent white. A pipeline for lawyers of color would allow the practicing bar to develop a racial justice lens in order to eradicate institutional racism.

Finally, society should hold prosecutors accountable for engaging in misconduct, with the threat of criminal sanctions. No longer can lawmakers and other officials benefit from “tough on crime” draconian sentencing built on the backs of black, brown, and poor folks.

The death penalty is the tip of the iceberg that is America’s biased and broken criminal justice system. Death penalty abolition is necessary, but this alone will not eliminate the inherent structural issues within the broader justice system.