guidelines included taking mitigating circumstance, such as the character of the defendant, or aggravating factors, such as additional felonies being part of the murder that was committed, into account. 10 Walter Berns argues that these were designed to make the sentence fairer but should still be “unusual” in the sense that it is rarely applied for the worst crimes. 11 However, these guidelines still allowed for arbitrary treatment because they permitted juries to take the “cruel” nature of a crime as an aggravating factor. Vague terms such as this meant that prejudice could still be introduced to the system, which cannot be accounted for. 12 This is partly to blame for current racial disparities on death row: 42 percent of those on death row are African American. 13 Additionally, a study conducted between 1973 and 1979 by David Baldus found that the race of the victim played a major role even after the implementing of these new guidelines. It revealed that the victim of a homicide was white the killer was 20 percent more likely to get the death penalty than a case involving a black victim. 14 Paul G. Cassell 10 The Harvard Law Review Association, ‘The Rhetoric of Difference and the Legitimacy of Capital Punishment’ , Harvard Law Review , 114 (2001), p. 1605-1606. 11 Walter Berns, ‘ The Morality of the Death Penalty’ , in Major Problems in American Constitutional History, Volume II: From 1870 to Present , by Kermit L. Hall, 1992nd edn (Lexington, MA: Heath, 1992), p. 536. 12 The Harvard Law Review Association, ‘ The Rhetoric of Difference’ , p. 1607-11 13 Death Penalty Information Center , ‘Race of Death Row Inmates Executed since 1976’ , 2016 <http://www.deathpenaltyinfo.org/race- death-row-inmates-executed-1976#defend> [accessed 24 April 2016]. 14 Amnesty International, United States of America: The Death Penalty (London, U.K.: Amnesty International Publications, 1987), p. 59
5
Made with FlippingBook HTML5