The New York Times reported recently that a leading group, The American Law Institute, which created the intellectual framework for the current system of capital punishment almost 50 years ago, pronounced the project a failure and walked away from it (h/t to Sister Scholar). Even though there were other important changes in news about the death penalty last year, including that the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely, but none of these changes was as significant as the institute’s move, which represents “a tectonic shift in legal theory.” The WSJ has more analysis of this issue here, suggesting we’re the throes of an upheaval in the administration of the death penalty.
We write here often about systemic racism and what that means. For compelling evidence about how race is built in to the very fabric of U.S. society, one needn’t look much further than the evidence about the race and the death penalty. Race is the single greatest factor in who lives and who dies when it comes to death penalty cases. A black defendant who kills a white victim is up to 30 times more likely to be sentenced to death than a white defendant who kills a black victim.
The imposition of the death penalty is even more likely when there is a black defendant and a predominantly white jury. Most minority defendants, especially in death penalty cases, are judged by predominantly white jurors. White male jurors can be especially persuasive in death penalty cases. Researcher Bowers, Steiner and Sandys (2001) analyzed cases in which a black defendant was accused of murdering a white victim found that the racial composition of the jury matters in death penalty cases. Once the proportion of white male jurors reaches 70%, the death penalty is far more likely.
The U.S. Supreme Court took this kind of data into consideration when it ruled in 1972 in the Furman v. George case and struck down the death penalty as “arbitrary and capricious.” Then, in 1987, the Supreme Court ruled again on the death penalty. In the McCleskey v. Kemp case, the court refused to overturn an individual decision to execute a particular man solely based on the bias in the system. Basically, what the Supreme Court basically decided that it didn’t want to look at the “statistics about race” because it wouldn’t consider the social science evidence in the case. The evidence, had they considered it, overwhelmingly showed a pattern of racial bias in who lives and who dies in death penalty cases.
instead, what the Supreme Court was suggesting was that they wanted to look at whether race played a role in each individual case, not at systemic racism. In some ways, what the Supreme Court was doing with this case was rejecting social science in the law and declaring that racial inequality is ineradicable and inevitable.
This is where the The American Law Institute comes in. They were attempting to “fix” what had been broken with the 1987 McCleskey v. Kemp decision, and see if there was some way to administer the death penalty in way that didn’t just reinforce racial discrimination already in place. Now, the organization has decided to abandon the project and admitted it was a failure. Another way of looking at this news is that this is further evidence that the death penalty is deeply, systematically racist and should be abolished.
There is a powerful documentary that tells this story in a fresh way called “Race to Execution” and it’s directed by Rachel Lyon, narrated by Charles Ogletree. While it’s been out a couple of years now, it recently re-aired on my local PBS station and I was moved by it once again. It’s a really powerful, and nuanced, telling of human stories of those affected by the death penalty interwoven with the court cases and social science research about race and the death penalty. (If you’re considering it for the classroom, there is lots of great additional material here.)
If race is the single greatest factor in who lives and who dies, and now the leading legal organization in the nation has admitted defeat in trying to change that, isn’t it time to abolish the death penalty and put an end to state-sponsored racism?