Racism and the Death Penalty
by David Cruz-Uribe, OFS
The death penalty, the state-sanctioned killing of criminals, continues to be a part of the American justice system. While 140 countries have abolished the death penalty in law or in practice, including every other industrialized democracy (except Japan and Taiwan), executions are still regularly carried out in the United States.
Its application, however, is uneven. Most executions are carried out by a handful of states, and in the last 15 years, the death penalty has been abolished by seven states (Connecticut, Delaware, Maryland, New Hampshire, New Jersey, New Mexico, Washington). There is some hope that it will be abolished in two more states, Colorado and Wyoming, in 2020. For supporters of the consistent life ethic, this has all been good news.
History of Racism and the Death Penalty.
But the possibility of complete abolition of the death penalty remains remote. The reason for this is that the death penalty in America is closely linked to another life issue: racism. Racism in America, whether through overt social bigotry or through institutional structures of discrimination and oppression, has long played a role in the death penalty. If we in the U.S. are going to abolish capital punishment, then we need to acknowledge and confront racism in our nation, particularly in our system of justice.
Capital punishment has a long history in the United States. The first execution in the American colonies was in 1608, in Jamestown. The colonies, and then the newly independent U.S. states enacted death penalty laws. An abolition movement waxed and waned, with Michigan being the first state to abolish the death penalty in 1846, closely followed by Rhode Island (1852) and Wisconsin (1853). But for the last 200 years the death penalty has continued and in some places expanded.
In many places, this was because it had become intertwined with slavery and institutional racism. Throughout the old South, the death penalty existed not just to punish the most severe crimes (murder, rape) but as a tool for the oppression and control of the black population. In the 1830s, Virginia punished five crimes committed by whites with capital punishment, but over 30 crimes committed by blacks.
At the end of the Civil War the passage of the 13th, 14th and 15th amendments ended chattel slavery and attempted to bring racial equality, but after the failure of Reconstruction and the resurgence of white supremacy, the law continued to be used to oppress blacks, including the death penalty. Capital punishment, meted out by white judges and all white juries, was applied overwhelmingly to blacks. Between 1910 and 1950, 75% of the people executed in the South were black, even though blacks comprised less than 25% of the population.
The death penalty was complemented by the widespread use of lynching. The Equal Justice Initiative has documented over 4,000 lynchings in the South between 1877 (the end of Reconstruction) and 1950. These killings, the product of mob violence, may seem very different from the legal imposition of the death penalty, but lynching had widespread social approval and often implicit consent (if not outright cooperation) of local law enforcement. It played the same role in practice that the death penalty played in law: terrorizing and oppressing blacks in the name of white supremacy.
The Civil Rights movement brought an end to widespread lynching, and the Supreme Court abolished the death penalty nationwide in 1972. The court ruled that all existing death penalty laws were unconstitutional.”
The Death Penalty and Racism Since 1976
In 1976 the court reversed itself and allowed executions to resume. Thirty-seven states responded by passing new death penalty laws that they hoped would pass the additional scrutiny that the Supreme Court imposed.
However, in many of these states the death penalty was a relic, used infrequently or not at all. For instance, Colorado, Connecticut, New Mexico, and Wyoming have each had one execution since 1976.
The states most anxious to start executing again were in the South. For forty years, they have made the death penalty a central part of their criminal justice system. Since 1976 there have been 1,515 executions, with more than 77% (1,169) occurring in the 11 states of the former Confederacy. Of the top 10 states in terms of numbers of executions, 7 of 10 are in the South; the other three are the border states (bordering the former Confederacy) Missouri, Oklahoma, and Arizona.
In these states, the racism underlying the death penalty is barely concealed. Multiple examples show the ways in which racism is an integral part of the death penalty, and support for the death penalty, in the South.
A brutal example comes from the case of Clarence Brandley, an African-American man from Texas who was falsely convicted of the rape and murder of a white teenager. Arrested along with a white co-worker, he was told by a police officer, “One of you is going to have to hang for this. Since you’re the nigger, you’re elected.” Brandley spent nine years on death row before being exonerated.
But in every state with the death penalty, both North and South, race plays a role in determining who lives and who dies. Since 1976, 34% of defendants executed nationwide were black (though during this period blacks were only about 12% of the population).
Most capital punishment statutes require the prosecution to establish “aggravating” factors (that is, specific features of the crime that make it especially grievous, such as killing a minor) in order for the death penalty to be applied. But repeated analyses of hundreds of cases shows that the unspoken “aggravating” factor is that the defendant is black.
Successful death penalty prosecutions play upon this latent racism. One method is to aggressively strike potential black jurors. Another is to court media coverage that paints black defendants as monsters or savages, as happened with the Central Park Five. (Though not a death penalty case, it is worth noting that there were loud calls for the defendants, all later exonerated, to be executed.)
The race of the victim also plays a decisive role in determining which crimes deserve the death penalty. In all the cases since 1976 resulting in execution, more than 75% of the victims were white, even though white victims account for only half of all murder victims. Blacks kill whites (approximately 15% of all homicides since 2001) at a higher rate than whites kill blacks (8% of homicides since 2001) but black defendents are executed at a much higher rate. Of all inter-racial murders, 21 in which a white defendant killed a black victim resulted in an execution, while 294 black defendants who killed a white victim were executed. When it comes to the death penalty, white lives seem to matter a great deal more than black lives.
Racism has had a corrosive impact on the justice system in America — so much so that Michelle Alexander entitled her groundbreaking study The New Jim Crow. And this is most apparent in capital cases: who gets arrested, who gets charged, and who gets the death penalty is heavily influenced by the race of the victim and the defendant.
As part of the consistent life ethic, we want to end the death penalty. To do so, we need to acknowledge the fundamental role of racism in sustaining the death penalty, and make ending racism a fundamental part of our work.
For more of our posts on the death penalty, see:
Why Conservatives Should Oppose the Death Penalty / Destiny Herndon-de la Rosa
Will for Life – Double Down / Tony Masalonis
For more of our posts on racism, see:
Movies with Racism Themes: “Gosnell” and “The Hate U Give” / Rachel MacNair
Eugenics in Roe v. Wade / John Cavanaugh-O’Keefe