Systemic Racism & the “Race to Execution”

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number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely,  but none of these changes was as significant as the institute’s move, which represents “a tectonic shift in legal theory.”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?

Comments

  1. DJohnson

    Surely guilt is a bigger factor than race.

    Actually, this is one of the areas where we probably agree. Although I am basically in favor of the death penalty, its actual practice has become so rare — and so arbitrary — that you have ask whether any benefit from it outweighs the cost.

    The problem with legal institutions, such as criminal punishment, is that they are not inherently self-correcting. In the market, if I discriminate irrationally based on race, I will be punished until I correct my irrationality. Not so when sentencing criminals. Furthermore, the courtroom is the kind of forum where very base emotions (e.g., in-group status, us versus them) can be exploited.

    Ideally, the death penalty would be used properly. The next best thing may be not to use it at all.

  2. Illusions

    “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.”

    I think that social science would do well to stop contributing to the tendency of some sectors to dismiss it as a “science.” I dont think the Supreme court made the wrong decision in this. I think it is an unfortunate decision, in that I DO believe that the poor in general, and poor minorities in specific are treated very unjustly by our justice system.

    I personally am opposed to the death penalty period. Because mistakes CAN be made, and ARE made, I do not feel it is ever just to hand out a sentence that cannot be overturned should new evidence surface. Life without parole serves the same function in removing the person from society, yet allows the possibility that the person can be given some of their life back if new technology should prove them wrongfully convicted.

    However, the quality of evidence on racism, and the presentation of that evidence needs to be improved. Moreover, it needs to be stripped of its own racial bias, and any tendency to overstate the prevalence. If that would happen, if there was a move to greater objectivity, inclusiveness, and more stringent methodology, I think that the the social sciences would be in a position to make a greater impact on the racism that does exist in this country.

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