After a 16-year hiatus, the federal death penalty has been reinstated. But during its suspension, the government failed to address the deep-rooted racial inequality within the system, which experts say is the direct descendant of policies from the eras of slavery, Jim Crow, and segregation.
Last week President Donald Trump‘s Attorney General William Barr announced that the federal government would restart executions, despite push back from human rights groups. The first five men who will face federal execution since 2003 are all convicted of murders involving children.
Federal executions were on pause for almost two decades because of issues with the cocktail of drugs used to end prisoners lives. The three-drug combination, which included a sedative, a paralytic, and finally potassium chloride to stop the heart, was challenged in court by prisoners on death row after it had caused visible pain in past executions.
Further, the company that provided one of the drugs stopped manufacturing it following pressure from human rights groups. But in his announcement Barr said the federal government will be switching to a new one-drug method, which has already been used by 14 states in over 200 executions.
Despite the new method of execution, Barr failed to address the many other failures within the death penalty system such as the well documented racial inequality within every stage of the capital punishment process and the criminal justice system as a whole.
Minorities And The Death Penalty
The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.
Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white.
“Black lives don’t matter as much to prosecutors when they make the decision whether to pursue the death penalty, so cases with black victims tend not to be capitally pursued,” Dunham said to The Globe Post.
The make up of the jury also plays an important part in who is sentenced to death. A study in Alabama showed that eight out of 10 black people eligible for the jury will be dismissed by the prosecutor in death penalty cases. And more than 23 capital case decisions in the state have been reversed because it was proven that prosecutors illegally removed black people from the jury. Currently, around 42 percent of people on death row are black, meaning that people are often not judged by a jury of their peers, but rather a group hand-selected by the prosecutor.
“Study after study, jurisdiction after jurisdiction, show that prosecutors tend to exercise their discretionary strikes to remove African Americans from juries,” said Dunham. “And that makes a huge difference when it comes to deciding whether somebody is guilty and what they’re guilty of, and even more of a difference when it comes to deciding whether they should live or they should die.”
Another important factor in whether someone is sentenced to death is the quality of legal representation they have. Death penalty cases deal with one of the most complicated areas of law, leaving a lot of room for legal errors to occur, said Jeffrey Kirchmeier, a law professor at City University of New York.
Additionaly, prosecutors have immense power over whether or not the death penalty is pursued in a case. This means that if a case is tried in a jurisdiction with a prosecutor who often seeks the death penalty, the defendant is more likely to end up on death row than if they were tried in another district, Kirchmeier said.
“Supporters of the death penalty like to believe that only the worst killers get the death penalty. But there are numerous arbitrary factors that affect whether or not someone gets the death penalty,” Kirchmeier told The Globe Post.
History of The Death Penalty
The death penalty “is a direct descendant of policies of slavery and lynching and legal segregation,” according to Dunham. “That meant that the death penalty was part of a legal scheme designed to foster and tighten social control by white men.”
Capital punishment was a legal way for the courts to continue their campaign of oppression against African American people after the U.S outlawed slavery and lynching, said Dunham. The death penalty allowed federal and state governments to categorize crimes that black people were formerly lynched for, as crimes that were now punishable by the death penalty, such as rape.
“Most of the places where capital punishment is most popular today are the same places that had slavery and the largest number of lynchings,” said Kirchmeier. “There were lynchings in the North too, but just as lynching was used as a tool against the poor, the unpopular, and people of color, the death penalty is used in a similar manner today.”
During the time that rape was punishable by death, about 90 percent of all the executions for rape took place in former confederate states, Dunham said. Of those sentenced to death for rape, about 95 to 96 percent of them were African American, he continued. During the same time period, no white man who was convicted of raping a black woman was sentenced to death, unless there was a murder involved.
Additionally, Georgia’s 1816 penal code specifically outlined that rape committed by a white man would be punished by a term of imprisonment of not more than twenty years, and attempted rape by not more than five years, but that slaves and “free persons of color” were to be put to death for the crimes of rape or attempted rape of a free white female.
In the post-Civil War, Jim Crow era, the federal government and states also set up special laws, known widely as the Black Codes, which treated black and white people differently. After these laws were ruled unconstitutional, the courts came up with alternative ways to suppress black people, said Dunham. One way they did this was by changing the death sentence from mandatory sentencing to discretionary. This meant that juries and prosecutors were able to decide whether a person was sentenced to death, rather than set guidelines which could be stuck down by legal challenges.
“Discretion was not meant to provide more sympathy to defendants in general, it was meant to provide a legal vehicle to excuse whites from getting the death penalty and to allow, what were typically at that time, almost all white male juries to impose the death penalty against black defendants,” said Dunham.
What’s Next For The Death Penalty?
Last week Congresswoman Ayanna Pressley filed bill to abolish the federal death penalty, following its reinstatement. The bill gained support from 12 other members of congress including progressives Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib, and conservative Justin Amash.
“It was wrong then and it’s wrong now and I am proud to introduce a bill that completely abolishes the use of capital punishment as a punitive measure,” Pressley said.
However, Kirchmeier said that the death penalty still has widespread support in America because there is a lack of education surrounding the topic. For example, he said many people still incorrectly assume the death penalty is more cost-effective than other forms of punishment, such as prison.
Also, politicians use the death penalty and a tough-on-crime stance to woo voters, despite evidence that it does nothing to stop violent crimes, said Kirchmeier.
“Capital punishment serves as a political issue rather than a logical analysis of addressing criminal justice issues and safety. So, politicians often use it to get votes by stirring up concerns,” he said. “So much of the popularity of the death penalty is based on feelings, not on logical analysis.”
Currently, 21 states have abolished the death penalty and four more have a moratorium on executions. The majority of these states are in the West or Northeastern regions of the United States. Also, despite the restart of federal execution, Kirchmeier is positive about the future of America’s justice system and believes one day there will be an end to state and federal executions.
“I think eventually the U.S. will get rid of the death penalty, but it will be an ongoing process,” he said. “It will take time and more education, but the trend is that people are understanding the problems with the death penalty.”