By: David Epega
Volume IX – Issue II – Spring 2024
The concept of the death penalty long predates modern societies and can be traced back to ancient civilizations. The United States can find the roots of its death penalty history in the 17th century when it was still the early British colonies. From there, the use of the death penalty would change over time with new policies being enacted to either increase its usage or attempt to retire the practice. I assert that judicial killings such as the death penalty and the laws behind are intrinsically tied to racism in the early 20th century after the end of slavery. To elaborate on my claim, I will first explain the United States’ history with death penalty laws up to the modern day, then connect that history to race relations in the country. Afterward, we can thoroughly reconcile this reality and evaluate the necessity of maintaining death penalty laws in their current state, taking into account their historical context.
As previously stated, 1608 was the first time in the United States’ history that an execution was utilized when the states were the 13 Colonies. But it would take over 100 years until the now United States of America would officially establish death penalty laws. In the ratified Bill of Rights of 1791, while the Fifth Amendment refrained from explicitly declaring the legality of the death penalty, its language would imply such legality. It stated that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” [1]. The line “nor be deprived of life, liberty, or property, without due process of law” displays that with the proper due process of law that individuals can be deprived of life. This is the first written instance in American history of punishment by death being officially recognized. Furthermore, the states would exercise their ability to decide whether or not judicial executions would be utilized. A major development in the history of American capital punishment would come in the late 20th century in the landmark criminal Supreme Court case Furman v. Georgia. The 1972 case would invalidate all existing death penalties and revolve around creating greater consistency when attempting to justify the use of the death penalty. Justice William O. Douglas elaborates, remarking how in three cases the death penalty was applied in trials by jury. He determined this made the death penalty extremely arbitrary and in violation of the 8th and 14th Amendments. Furman v. Georgia will be crucial in understanding judicial killings and their connection to racial bias. But for now, it is important to note that the case instituted a de facto moratorium that would last for four years until 1976 when another landmark decision would occur in the form of Gregg v. Georgia. This decision would reinstate the death penalty with Justice Potter Stewart elaborating stating “In the 4 years since Furman v. Georgia, at least 35 states have enacted new statutes providing for the death penalty.” This statement reveals the main intent of the initial Furman v. Georgia decided that there needed to be a more narrow path to provide the death penalty. A unique fact to highlight is that after the Gregg v. Georgia decision, there was a sharp increase in death penalty sentences. The January 2020 publication of the Annual Review of Criminology, “The Rise, Fall, and Afterlife of the Death Penalty in the United States”, it was documented that “[o]nce the Supreme Court reinstated capital punishment in Gregg v. Georgia (1976) and accompanying cases after having constitutionally invalidated it in Furman v. Georgia (1972), the death penalty saw an extraordinary resurgence in the United States. By the mid-1990s, hundreds of new death sentences were being imposed each year, and dozens of inmates were being executed, with a sentencing peak of 315 in 1996 and an execution peak of 98 in 1999.” There would be more cases that would narrow what is considered a capital offense punishable by death and different states would continue to decide whether or not the death penalty should be abolished. Today, 23 U.S. states along with the District of Columbia and Puerto Rico have abolished the death penalty. With this background information, I can now properly articulate why the death penalty and capital punishment have very concerning ties to racism and racial prejudice.
Numerous studies have been conducted finding a connection between race and judicial killings, but what’s important is to find a pattern in how death penalty laws have been enacted to coincide with societal beliefs regarding minorities. First, African Americans make up 41% of death row inmates according to the Death Penalty Information Center, [2] which is staggering for a group that is 14.4% of the population. Meaning a group significantly less than a quarter of the American population makes up nearly half of the death row inmates. The Death Penalty Information Center also finds that 54% of people wrongfully convicted and sentenced to death are black as well. David Baldus was the co-author of a 1983 study that highlighted the bias of the death penalty. He and his colleagues Charles Pulaski and George Woodworth found that “the odds that a defendant would be sentenced to death for murder in Georgia were 4.3 times greater if at least one victim was white than if all victims were black.” [3] Baldus also found in 1998 that “black defendants in certain categories of murder cases are nearly four times more likely to be sentenced to death than are white offenders”. Michael Radelet, a renowned sociologist and current professor at the University of Colorado Boulder, recognized that murder cases with white victims were more likely than cases with black victims because the accused were far more likely to be indicted for first-degree murder. Jennifer Eberhardt, who has provided major contributions on the consequences of the psychological association between race and crime, also found that “defendants who looked more stereotypically black in death penalty cases with white victims were more likely to be sentenced to death. People tend to see Black physical traits as directly related to criminality. The synthesis supported a strong race of victim influence.” [4] This confirms that people tend to associate African Americans with criminal activity, which makes it even more apparent how the death penalty has an adverse impact on black Americans. The evidence presented focuses on the idea that African Americans are disproportionately affected by the death penalty in regards to being convicted and whether or not defendants of murders against blacks would be sentenced to death. These are just a handful of a plethora of studies conducted where bias was found against black Americans. But why? The answer to this question and the truth about the death penalty is uncovered by realizing the death penalty was simply the evolution of a long-existing oppressive force in the United States.
The death penalty and the laws sustaining its enforcement represent contemporary manifestations of historical injustices such as slavery, the Black Codes, Jim Crow laws, Segregation, and the War on Drugs—all of which systematically oppressed the black population and perpetuated white supremacy Numerous Western nations, some the United States considers very close allies, have abolished the practice of capital punishment. So why does the U.S. continue the practice? The answer is simple, the United States’ contemporary nations do not share the same racial history the U.S. does. During the era of slavery and subsequent lynchings, the death penalty coexisted without the need for explicit racialization, as the aforementioned institutions already exerted significant control and oppression over marginalized communities. Once those practices were outlawed because of growing social consciousness, executions would take the place of those other institutions. David Jacobs, Jason T. Carmichael, and Stephanie L. Kent found through their studies that “executions occur more often in the same places where both lynching and slavery were prevalent.” [5] The trio also recognized that the states of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee all employed the Black Codes and have currently the highest rates of capital punishment sentences. Lynchings were utilized after the Emancipation Proclamation under the protection of the Black Codes to reinstate the culture of slavery even with its death. This is articulated by an article written by the Equal Justice Initiative where it’s emphasized that “[a]fter slavery was abolished in 1865, Southern states, where more than 90 percent of Black Americans lived, embraced criminal justice as a means of racial control. Discriminatory “Black Codes” led to the imprisonment of unprecedented numbers of Black men, women, and children, who were returned to slavery-like conditions through forced labor and convict leasing systems that lasted well into the 20th century.” [6] The series of laws that formed the Black Codes acted as a way to legally enslave the newly freed Black Americans as well as persecute the population. The Black Codes would persist despite some efforts to weaken the Southern laws with the Reconstruction Act of 1867, but these laws would evolve once again after Reconstruction ended in 1877. Natural Geographic provides clarity stating that while “[r]econstruction officially ended in 1877, and southern states then enacted more discriminatory laws… when the Supreme Court ruled, in Plessy v. Ferguson, that so-called “separate but equal” facilities—including public transport and schools—were constitutional. From this time until the Civil Rights Act of 1964, discrimination and segregation were legal and enforceable.” [7] National Geographic explains the 2nd evolution of black oppression laws after the end of slavery. The Black Codes were the 1st evolution, only utilized because Reconstruction had limited the individual rights of the Southern states with the North and particularly Northern Republicans controlling much of the South. With Reconstruction’s end as the Democrats would wrestle control of the South back from the North, the Black Codes became unnecessary because the South now had far more autonomy. Plessy v. Ferguson was another landmark U.S. Supreme Court case in 1896 that ruled that racial segregation was legal and did not violate the U.S Constitution as long as all conditions were equal. Birthing the now infamous legal doctrine of that era “separate but equal”. “Plessy v. Ferguson provided the foundation for a system of segregation and exclusion that adversely affected African Americans throughout the twentieth century. Segregation was perpetuated by federal policies”
Segregation and the Jim Crow Laws provided white Americans with a new system to further suppress the rise of minorities in the United States. This new system dominated the country until 1964 with the passing of the Civil Rights Act of 1964. The act would end segregation making it an unconstitutional practice and the Civil Rights Movement itself would shed light on the issue of lynchings bringing laes to outlaw that practice as well. Once more, an evolving society would strike down another system of white domination and supremacy. However, the legacy of lynching would establish the 3rd evolution of black oppression in the form of judicial executions. Professor. Ph.D. David Rigby supports this claim stating that “[c]apital punishment today is shaped in many ways by a legacy of racial violence and control in the United States. Scholars have posited that both lynching and slavery are historical practices with legacy effects on capital punishment…Our results show that lynching on its own is a significant predictor of contemporary executions but that once slavery is accounted for, slavery predicts executions, while lynching does not. The legal status of slavery at the state level appears to be the best historical predictor of contemporary executions at the county level, suggesting that the perversions of slavery on state-level political institutions or culture may be the key historical legacy” [8]. Rigby argues that the increased use of capital punishment was a fear tactic similar to lynching to control the black population. The case Furman v. Georgia mentioned earlier was a case that famed civil rights lawyer and jurist Thurgood Marshall served on. He and Justice Willian J. Brennan Jr both. The following case Gregg v. Georgia overturned the decision and returned to the oppressive system. Capital punishment is still practiced in earnest today with seemingly no end in sight. The legacy of racially oppressive laws continues and they target African Americans disproportionately to maintain the white establishment.
This article was meant to uncover the truth behind capital punishment in the United States and re-examine the practice as a byproduct of a generations long tradition of white supremacy over minorities, particularly black Americans. Through an understanding of the development of judicial killings in the United States, we were able to then recognize the concept of the death penalty as a corrupted practice to further black oppression. To conclude, since the end of slavery, the use of the Black Codes, Jim Crow Laws, and segregation were all only developed in response to society’s ability to re-examine its own culture. Laws have been enacted on the state and federal levels to further a white agenda and the continued use of capital punishment in contrast to our Western neighbors shows this. Whether or not executions will ever be outlawed in the United States is a complex question and not the most important. The most important being: what will capital punishment pass the torch to? What will be the next institution or legal system used to enforce white supremacy? We must proceed to the future with caution and recognize that many practices we use in our modern society embody legacies of hatred and bigotry. The next step will not be to simply repeat the actions of the past and condemn a corrupt system, but to stay ahead of the curve and prevent another generation who must live with such issues.
Endnotes
[1] “FIFTH AMENDMENT RIGHTS of PERSONS CONTENTS.” n.d. https://www.govinfo.gov/content/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-6.pdf.
[2] “Death Penalty.” n.d. Equal Justice Initiative. Accessed April 7, 2024. https://eji.org/issues/death-penalty/#:~:text=African%20Americans%20make%20up%2041.
[3] “Study Finds Staggering Race-of-Victim Disparities in Georgia Executions and That the Death-Penalty Appeals Process Makes Them Worse.” 2019. Death Penalty Information Center. 2019. https://deathpenaltyinfo.org/news/study-finds-staggering-race-of-victim-disparities-in-georgia-executions-and-that-the-death-penalty-appeals-process-makes-them-worse.
[4] Wikipedia Contributors. 2019. “Race and Capital Punishment in the United States.” Wikipedia. Wikimedia Foundation. February 22, 2019. https://en.wikipedia.org/wiki/Race_and_capital_punishment_in_the_United_States.
[5] Rigby, David, and Charles Seguin. 2021. “Capital Punishment and the Legacies of Slavery and Lynching in the United States.” The ANNALS of the American Academy of Political and Social Science 694 (1): 205–19. https://doi.org/10.1177/00027162211016277.
[6] Brown, Mary. n.d. “The Westport Library Resource Guides: Mass Incarceration: Understanding Racial Disparities.” Westportlibrary.libguides.com. Accessed April 7, 2024. https://westportlibrary.libguides.com/c.php?g=1056673&p=7677201.
[7] National Geographic Society. 2022. “The Black Codes and Jim Crow Laws.” National Geographic. National Geographic Society. July 8, 2022. https://education.nationalgeographic.org/resource/black-codes-and-jim-crow-laws/.
[8] Rigby, David, and Charles Seguin. 2021. “Capital Punishment and the Legacies of Slavery and Lynching in the United States.” The ANNALS of the American Academy of Political and Social Science 694 (1): 205–19. https://doi.org/10.1177/00027162211016277.