THE MARSHALL PLAN

No, not the post-World War II plan. The Thurgood Marshall plan.

He's often remembered as a piece of trivia – America's first black Supreme Court justice – but his tenure on the Court was relatively inconsequential. Marshall should be better remembered for masterminding the NAACP legal strategy that culminated in Brown v Board of Education. He understood that the Court would never declare segregation unconstitutional in one fell swoop. The way to win was to paint them into a corner with an incremental, interrelated series of cases. Baby steps, essentially. Everyone remembers Brown, but there would have been no Brown without Sweatt v Painter. There would have been no Sweatt without Sipuel v Oklahoma. No Sipuel without Gaines v Canada. And so on. It was calculated, it required phenomenal patience, and it worked. Each case poked a small hole in the legal basis for segregation until so little remained that it was crushed under the weight of Brown.

Quaint story. I wonder if the anti-death penalty folks have ever heard it. Or if they have a plan. Or, if what they're doing constitutes a plan, why it's awful.

To absolutely no one's surprise, the Supreme Court rejected the arguments in Baze and Bowling v Rees on Monday. The basis of the challenge was that lethal injection is cruel and unusual punishment – because people performing the procedure can botch it and cause considerable pain to the condemned.

Seriously. That's the argument. That's the argument that anti-death penalty organizations apparently thought was going to do it. This is what they devote their limited resources to.

What's the strategy here? Anti-death penalty arguments based on the 8th Amendment haven't worked for 225 years. Was there a reasonable expectation that the Scalia-Alito-Thomas-Roberts court was suddenly going to be the one that bought it? They didn't buy it, and they didn't buy it because it is an absolutely retarded argument.

Yes, there are dozens of citeable examples of botched executions. Cruelty-based arguments are what eventually phased out Ol' Sparky in favor of lethal injection. But for anti-death penalty people, getting one method replaced with another is not even a hollow victory. It's nothing.

I absolutely detest the death penalty, and not because I think it's "cruel" or "uncivilized" or any other nonsense. It is statistically proven to be applied disproportionately to blacks and Latinos. Period. Since reinstatement in 1976 (note that it was briefly unconstitutional thanks to an Equal Protection-based argument) there have been 15 white people executed for killing a black person. There have been 223 black people executed for killing white people. In 1990, the Reagan-Bush era GAO concluded:

"In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks."

Texas manages to have twice as many blacks and Latinos on Death Row as white people (268-121) despite the fact that the state's population is 71% white. I guess white people in Texas don't commit many murders. More accurately, when they do commit murder "something" about their crime just isn't as heinous as when those scary brown people do it.

The Supreme Court isn't simply going to change its mind on the death penalty. Eighth Amendment challenges will, at best, produce new methods of execution. A coherent strategy based on chipping away at various states' inequalities in seeking capital punishment (and getting it from overwhelmingly white juries) might succeed in a 10 to 15 year timeframe. An non-strategy of randomly litigating of every half-assed idea the 25 year-olds at Legal Aid concoct is guaranteed to accomplish nothing, especially when the basis of the latest lawsuit sounds suspiciously like Rush Limbaugh's impression of a whiny liberal argument.

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5 Responses to “THE MARSHALL PLAN”

  1. Nick Says:

    I never understood this particular approach either. I mean, basically what they're doing is going to people who like the idea of killing criminals for doing really heinous things, and trying to make them feel guilty because some guy who raped and murdered a little girl is going to feel pain for five or ten minutes. FAIL.

  2. Rob Says:

    First off, I definitely agree with your premise. This is clearly a fundamentally flawed approach. There is one point I'd like to make regarding:

    "when they do commit murder “something” about their crime just isn’t as heinous as when those scary brown people do it"

    Is it possible that this is actually driven more by economical disadvantages than actual racial bigotry? I have always assumed that black people are no longer systematically screwed because they are black – now they are systematically screwed because they don't have money to hire a good lawyer. Nevertheless, given that this is Texas we are talking about, I have no doubt that bigotry plays a significant role… Still, consider OJ Simpson for example; here is a black man that is clearly guilty of homicide – and yet no lethal injection… Hmmmm. Could it possibly be that money played a role in how that whole thing turned out?

  3. Ed Says:

    There seems to be a lot of enthusiasm these days for de-emphasizing race and replacing it with income. That fails to explain why A) the raw number of white people in Texas who are in poverty exceeds the number of blacks in poverty and B) why the plurality of murders in Texas are committed by whites yet they form a small minority of the capital cases.

    Poor white people can't afford lawyers either, yet they disporportionately manage to avoid A) prosecutors seeking the death penalty and B) juries recommending it.

  4. BK Says:

    Is the problem racism or the death penalty?

    The judicial system no longer seems to look favorably on solving issues of racism through anything other than laws that on their face discriminate.

    The death penalty is wrong for a number of reasons, not the least of which is that it is unfailry sought and applied based on race.

    Considering the lack of a coherent method of eliminating the death penalty through the courts, maybe it's time to go the legislative/constitutional route.

  5. Rob Says:

    Don't get me wrong – I don't really intend to "replace" racial concerns with economic ones. I don't think the situation is that simple. I do, however, recommend considering that the statistical interrelationship between race and poverty is a source of complexity that makes it extremely difficult to make believable arguments about causality. It is likely to be a trivial matter to prove that there is some racial bias in death penalty statistics. It is much more difficult to prove the extent of this racial bias, and whether it is a stronger factor than poverty. Is it possible, for example, that there are much more white "business criminal" types, and that that is distorting the statistics somewhat? I would venture a guess that it is a strong possibility. Ultimately, I think you have a good point, but you are commiting the same logical flaw that you bash in other posts – correlation does not equal causation.