Dead law walking - US capital punishment

While Baltimore was aflame last week, the US Supreme Court was addressing another burning issue - how the American state kills its prisoners. It will be several weeks before we discover whether the country's top justices uphold, or strike down, a form of lethal injection that causes agony. But the question of whether America should execute people in any form might be settled by other means. The US ranks fifth behind China, Iran, Saudi Arabia and Iraq in the number of people it executes, according to Amnesty International. That puts it ahead of Yemen, Pakistan, North Korea and Sudan. Poor company indeed.

But the parallel is more troubling than a mere list. In theocratic states, apostates feature heavily on the rows of the condemned. In the US, it is African-Americans. Wherever the state chooses to play God, it tends to single out other people's tribes. In the US, evidence of racial bias in capital sentencing is beyond doubt. It is not just that one in three of the people executed in America are black. It is that they tend to be executed for killing whites. Between 1977 and 2013, 47 per cent of all murder victims in America were black, according to "Black Lives Don't Matter", a report by the University of North Carolina. Yet only 17 per cent of the victims were black in cases that resulted in execution.

This is where Baltimore comes in - and indeed Cleveland, Ferguson, Staten Island, Charleston and other places where police killed unarmed black men in the past year. No country has done more than the US to promote the principle of the rule of law. The blindfolded Lady Justice sits on sculpted lampposts outside the US Supreme Court.

Yet only the unseeing could miss the fact that the methods of US law enforcement are deeply skewed by race. US police officers shoot and kill upwards of 400 people a year. In some cases, they do so in genuine self defence. In others, there is obvious trigger-happiness. A disproportionate number of the victims are black. In no instances has the law enforcement officer in question ended up on death row. Very few even lose their jobs. Somewhat clinically, the Federal Bureau of Investigation labels such deaths "justifiable homicide".

The good news is that for the first time in a generation, politicians in both US parties are checking their "tough on crime" reflex. In the 1990s Hillary Clinton lost friends when she backed her husband's draconian agenda on crime. As governor of Arkansas, Bill Clinton signed several execution orders. In the midst of his 1992 White House bid, he even flew home to oversee the execution of Ricky Ray Rector, a man who was so befuddled that he kept his final pecan pie meal "for later". The Supreme Court has since outlawed executions of mentally impaired prisoners.

Last week, Mrs Clinton indicated she was returning to her pre-1990s instincts when she called for an end to the era of "mass incarceration". With 2.2m people behind bars, the number of people the US keeps locked up is only a shade under the combined total of China and Russia. Much of that was due to her husband's embrace of the "three strikes and you're out" mandatory sentencing.

The bad news is that few US politicians support abolition of the death penalty in spite of the fact that there is no evidence it deters crime. Perhaps unfairly, the politician who stands to lose most from the Baltimore riots is Mrs Clinton's rival for the Democratic nomination, Martin O'Malley, who was mayor of the city between 1999 and 2007, and then governor of Maryland. Before he stepped down, Mr O'Malley signed a law abolishing capital punishment in the state. He cited racial bias as one reason for scrapping it. Several other states, including Illinois, Connecticut, New York and New Mexico, have done the same in the past few years. Yet 32 states still include it on their books. The vast majority of US executions take place in the southern states; Texas is the most prolific.

Could the US Supreme Court be about to change the whole trajectory? The petition before it seeks to outlaw one drug - midazolam - on the grounds that it fails to anaesthetise people from the pain of the follow-up injections that do the killing. "I feel my whole body burning," said Michael Lee Wilson, a 38-year-old man executed in Oklahoma last year for murder. It seems clear that midazolam does not prevent a breach of the US constitution's ban on "cruel and unusual punishment". If it is outlawed, states such as Oklahoma will doubtless look for other drugs that pass the test. But they will find it increasingly hard to get hold of them. Oklahoma only resorted to the drug because so many pharmaceutical companies refused to be part of the supply chain. The publicity is bad for business.

The same could be said of America's reputation. It is an irony that those who most strenuously defend the death penalty are often the greatest sceptics of government competence. Wrongful executions by a fallible state can never be undone. More than 140 people have been exonerated on death row since 1973. Some of the wrongfully convicted have not been so lucky. There is no question that brand USA is harmed by the country's enthusiasm for capital punishment. If politicians feel unable to call for an end to what is unusually cruel, perhaps judges can step into the breach.

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