Death By Discretion

Death By Discretion

Death By Discretion: Who Decides Who Lives and Dies in the United States of America?

I. Introduction
The figures are there: approximately thirty-four percent of people executed in the United States since 1976 have been black, despite the fact that this minority comprises only twelve percent of the United States population;1 seventy-nine percent of victims for whom alleged defendants have been executed have been white, despite comprising only fifty percent of all those murdered;2 and of the 221 people executed for interracial murders, 189-ninety-four percent-have been black.3 These numeric symbols of the racism that pervades America's criminal justice system illustrate the arbitrariness of the process by which some are chosen to die at the hands of the state while others are allowed to live. What has achieved scant attention, however, is the question of how these figures come into existence. How is it that racism, as one of the most deplorable features of contemporary society, is able to establish a position in the purported beacon of objectivity and neutrality that is the law? Which facets of the United States law allow for overt societal racism to manifest itself in the prosecution and sentencing of those alleged to have committed capital crimes?
I argue, in this essay, that the legislative reinvention of the death penalty in the years following Furman v. Georgia4 did not eliminate the arbitrariness and caprice of the pre-Furman era. Instead, it simply transferred the mantle of discretion away from the previous bearers.5 The principal inheritors of this discretion have been criminal prosecutors. I assert that the 'discretionary use of the death penalty'6 by state and federal prosecutors plays the single greatest role in introducing discriminatory societal subjectivity into the ostensibly objective decision to impose a death sentence. Firstly, I analyze the politicized and socialized context in which a prosecutor "decides" to seek a death sentence for the...