Race, Exceptionalism, and the American

Death Penalty: A Tragedy in Many Acts

BY PHYLLIS GOLDFARB*

INTRODUCTION

he American death penalty is exceptional in multiple senses of the

word. It is exceptional in that the form it takes is unique to American
culture. Understanding the American death penalty, then, requires
an understanding of the role it plays in American life and in its history,
particularly in its complex history of race.
The death penalty is also exceptional in that, as Justice Stewart
famously said in Furman v. Georgia, [it is] cruel and unusual in the same
way that being struck by lightning is cruel and unusual. 1 Executions are
far more the exception than the rule for the crime of murder.2 The relative
rarity of death sentences raises a variety of thorny questions of law and
morality, questions that played out doctrinally in the Supreme Courts

* Jacob Burns Foundation Professor of Clinical Law, George Washington University Law
School; B.A., Brandeis University (1978); Ed.M. Harvard University (1979); J.D., Yale
University (1982); LL.M., Georgetown University (1985). (Remarks delivered at New England
Law Review Symposium, A Look Back at the History of Capital Punishment, on March 24,
2014). Thanks to the New England Law Review for convening this symposium and to my copanelistsProfessors Evan Mandery, Michael Meltsner, Carol Steiker, and Judge Ponsor
whose thoughts and writings deepened my reflections.
1

408 U.S. 238, 309 (1972).

Death sentences are imposed in less than one percent of homicides, and even then, for a
variety of legal and sociological reasons, many of these executions do not take place. See
DAVID GARLAND, PECULIAR INSTITUTION: AMERICAS DEATH PENALTY IN AN AGE OF ABOLITION
11 (2010). This reality was the basis for Justice Stewarts concurrence in Furman, in which he
indicated that from all those convicted for death-eligible crimes, many just as reprehensible,
as those given death sentences, the condemned are among a capriciously selected random
handful. Furman v. Georgia, 408 U.S. 238, 30910 (1972) (Stewart, J., concurring).
2

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landmark capital cases of the 1970s, Furman v. Georgia3 (Furman) and

Gregg v. Georgia4 (Gregg), the cases at the center of A Wild Justice.5
But the move from adjective to noun, from exceptional to
exceptionalism, brings with it another connotation, the sense of
something that is out of step with norms and patterns. 6 The word
exceptionalism is typically ascribed to a nation, to a country out of step. 7
These days, the adjective that typically precedes the word
exceptionalism is American,8 which inspires admiration from some
and attack from others.9 The suggestion inherent in the noun
exceptionalism is that America is different than other nations in ways
that entitle it to behave differently.10 In this sense, the American death
penalty is not just exceptional, but exceptionalist, for Americas experience
with the death penalty diverges from the experience of other Western
nations.11
These multiple ways in which the American death penalty is
exceptional are not independent but interactive. My intention is to turn
3

408 U.S. 238.

428 U.S. 153 (1976).
5 See EVAN J. MANDERY, A WILD JUSTICE: THE DEATH AND RESURRECTION OF CAPITAL
PUNISHMENT IN AMERICA 21520 (2013) (discussing Justices Stewart and Whites agreement to
base their Furman concurrences on the constitutional problems flowing from the relative rarity
of death sentencesthat wantonly and freakishly imposed death sentences could not
serve any legitimate penological goal and represented cruel and unusual punishment under
the Eighth Amendment).
4

6 One definition of exceptionalism is [t]he theory or belief that something, especially a

nation, does not conform to a pattern or norm. AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE 619 (4th ed., 2009).
7 See id.; see also George M. Fredrickson, From Exceptionalism to Variability: Recent
Developments in Cross-National Comparative History, 82 J. OF AM. HIST. 587, 58889 (1995).
8 See, e.g., Michael Kammen, The Problem of American Exceptionalism: A Reconsideration,
45 AM. Q. 1, 3 (1993); SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE-EDGED
SWORD 1718, 33 (1996).
9 See, e.g., Karen Tumulty, Conservatives New Focus: America, the Exceptional, WASH. POST,
Nov. 29, 2010, at A01 (describing criticism of President Obama from Republican candidates
for his disbelief in American exceptionalism and asserting that the idea that the United States
is inherently superior to the worlds other nations has become the battle cry from a new front
in the ongoing culture wars).
10

See Glenn Greenwald, Obama and American Exceptionalism, SALON (Mar. 29, 2011, 12:30
PM), http://www.salon.com/2011/03/29/exceptionalism_4/ (Declaring yourself special,
superior and/or exceptionaland believing that to be true, and, especially, acting on that
beliefhas serious consequences. It can (and usually does) mean that the same standards of
judgment arent applied to your acts as are applied to everyone elses.).
11

See Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 OR. L. REV. 97, 97
(2002) ([C]apital punishment for ordinary crimes has at this point been abolished, either de
jure or defacto, in every single Western industrialized nation except for the United States.).

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attention to their interaction. In this project, I am indebted to Evan

Mandery, because his books account of the gargantuan litigation effort
that led to the death penaltys demise in 197212 and its rebirth in 197613 is
sufficiently detailed and textured to support examination of the mutually
reinforcing uniquenesses of Americas capital punishment system.
I.

The Book
A. What is Law?

Within the abundant literature of the death penalty, Mandery has

managed something exceptional. By carefully describing the societal and
legal dynamics that forged Americas singular experience with the death
penalty, A Wild Justice has shown us that law, even at the highest levels and
on matters of gravest consequence, is biographies and personalities,
backgrounds and identities, inclinations and biases, strengths and
weaknesses, experiences and aspirationsthe stuff of humansall coming
together in a time-bound episode of supplication, persuasion, and decision
with long-lasting implications. His book captures vividly both the ways
that the death penalty is rooted in American culture, and the ways that it
might have been abandoned decades ago were it not for a confluence of
somewhat random events14 such as Justice Blackmuns relationship to
Justice Burger,15 Justice Stewarts decision to negotiate with Justice White,16
and the availability of the Model Penal Codes guided discretion capital
statute which states like Georgia could simply adapt and adopt after
Furman.17 When Mandery portrays pivotal episodes in the life-and-death
12 See Furman v. Georgia, 408 U.S. 238, 239 (1972) (striking down state death penalty
statutes for allowing the arbitrary imposition of capital sentences, which constitutes cruel and
unusual punishment under the Eighth Amendment).
13 See Gregg v. Georgia, 428 U.S. 153, 154 (1976) (upholding under the Eighth Amendment
state death penalty statutes that established systems for guiding jurors discretion in issuing
capital sentences).
14 Cf. Steiker, supra note 11, at 129 (suggesting a historical contingency thesis for
Americas death penalty exceptionalism, because death penalty abolition in America was a
near miss that might have prevailed but for a historical accident). While A Wild Justice
confirms that the historical contingency thesis is sound, the thesis does not necessarily
diminish the explanatory power of other cultural forcessuch as racethat support
Americas prolonged experience with the death penalty.
15 See MANDERY, supra note 5, at 19394.
16 See id. at 20001.
17 The inclusion of the death penalty in the Model Penal Code (MPC) had been
controversial. When the advisory committee on the death penalty of the American Law
Institute (ALI), the organization that promulgates model codes, supported excluding capital
punishment from the MPC, Herbert Wechsler, who directed the ALI, argueddespite his
own opposition to the death penaltythat the ALI should not lead public opinion. A

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story of American capital punishment, he ascribes key roles to chance and

fate.
What makes A Wild Justice exceptional is its narrative structure and
journalistic care. Essentially, Mandery gives us an ethnography of the
developments that led to our current laws regulatory regime for capital
punishment.18 He shows us that the story of the death penaltys
disappearance and re-emergence is really a vast set of stories, stories
within stories within stories, all interlocking, stories about crimes and
criminals, individual Supreme Court justices and their clerks, about
litigants and legislatures, exceptional characters participating in
exceptional high-stakes plots and subplots, a drama in many acts and
scenes.
The exceptional skills of Mandery the novelist are on display in this
nonfiction project.19 He reminds us that todays death penalty lives at the
intersection of a formidably wide array of actors and storylines. Mandery
treats us to a good number of relevant dynamics and plot twists, revealing
the background and motives of leading characters and demonstrating how
their human interaction, for better or worse, created death penalty law and
policy. In the process, he not only deepens our knowledge of the
prominent players and institutions in the death penalty story, but also
gives us enough information to enable us to realize the limits of our
knowledge. After more than 500 pages of narrative, we appreciate that in
selecting certain important stories to tell, an author necessarily leaves many
other stories untold.
B. The Death Penaltys Death Tale
Mandery wants us to comprehend how unlikely it was that a small
band of upstart public interest lawyers could mount a campaign of
constitutional litigation that in one historical moment succeeded in
eliminating the death penalty.20 The improbable success of Furman
compromise was struck in which the ALI offered a model death penalty statute for states that
chose capital punishment, but took no position on whether they should do so. Id. at 30610
(Weschlers compromise, including a modified death penalty in the MPC . . . helped create
the appearance that the death penalty could be applied rationally.).
18

See generally Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two
Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 35960 (1995)
(describing the general contours of the death penaltys regulatory regime).
19 Manderys novels include: EVAN J. MANDERY, Q: A NOVEL (2011); EVAN J. MANDERY,
FIRST CONTACT: OR, ITS LATER THAN YOU THINK (2010); EVAN J. MANDERY, DREAMING OF
GWEN STEFANI (2007).
20

See MANDERY, supra note 5, at 357 (explaining that the litigation effort initiated by
Michael Meltsner and spearheaded by Tony Amsterdam, lawyers at the NAACP Legal
Defense Fund (LDF), that led to the improbable, historic victory in Furman was to lawyers

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occurred because Justice Arthur Goldberg and his clerk, Alan Dershowitz,
planted the seed of an Eighth Amendment legal theory; 21 lawyers at the
NAACP Legal Defense Fund (LDF) with the exceptional qualities of
Michael Meltsner and Tony Amsterdam vigorously cultivated that seed, 22
and an eccentric and flawed set of Supreme Court justices interacted in a
peculiar, unpredictable, and fateful way. All indicators had suggested that
Furmans Eighth and Fourteenth Amendment challenge would not
succeedfrom the Constitutions numerous references to capital
punishment that made its constitutionality seem a foregone conclusion 23 to
the 1971 holding of McGautha v. California,24 which upheld the death
penalty against a procedural due process challenge. 25
In other words, Mandery shows us that Furman struck like lightning.
According to Furman, arbitrariness in the administration of the death
penalty rendered every death sentence violative of the Eighth and
Fourteenth Amendments.26 This lightning bolt emptied all the death rows
in America, though they were soon to be refilled.27

the equivalent of Don Larsens perfect game in the 1956 World Series, the sort of
accomplishment that stretches even a childs imagination.).
21 See id. at 330 (describing how Justice Goldberg, with the assistance of Alan Dershowitz,
circulated a memorandum to the Court in 1963 expressing his substantial doubts about the
constitutionality of the death penalty under the Eighth Amendment, although he ultimately
limited his public actions, at Chief Justice Warrens request, to expressing just one of his
concerns in a dissent from the Courts denial of certiorari in Rudolph v. Alabama, 375 U.S. 889
(1963), rehg denied, 375 U.S. 917 (1963)). Justice Goldbergs memorandum to the Court is
reprinted in its entirety at Arthur J. Goldberg, Memorandum to the Conference Re: Capital
Punishment, October Term, 1963, 27 S. TEX. L. REV. 493 (1986).
22

See MANDERY, supra note 5, at 3147 (describing how Michael Meltsner and colleagues at
LDF discussed Goldbergs dissent and decided to put the death penalty on LDFs agenda,
enlisting Tony Amsterdam to lead its death penalty litigation efforts).
23 At the oral argument in Aikens v. California, 406 U.S. 813 (1972), initially a companion case
to Furman v. Georgia, Justice Stewart noted the several places in the Constitution where capital
punishment is mentioned, including the due process clause. Tony Amsterdam replied, [I]
dont think that one can say that language in the Constitution, which by inference permits the
death penalty, meant to project a continuing permission of it . . . . Id. at 14549, 460 (noting
that because Aikens was not decided by the Supreme Court, the transcript of the oral
argument is not available . . . . Mandery reconstructed the argument from a recording he
obtained from Ronald George who, as an appellate attorney for Californias Attorney General,
argued Aikens for the state of California).
24 402 U.S. 183, 22324 (1971).
25 Writing for the majority in McGautha, Justice Harlan held that standardless discretion to
issue death sentences comports with Fourteenth Amendment due process because to identify
before the fact those characteristics of criminal homicides and their perpetrators which call for
the death penalty, and to express these characteristics in language which can be fairly
understood . . . appear to be tasks which are beyond present human ability. Id. at 204.
26

See, e.g., Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring) (I simply

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The book is poignant when it shows us revealing scenes rather than

reporting information or perspectives. For example, on the day the Court
announced Furman, Mandery gives us the scene of Tony Amsterdam, the
LDF lawyer who devoted his life to the case, driving in California and
hearing on the car radio that his and LDFs tireless efforts had just
succeeded in abolishing the death penalty. Upon hearing the news, he
pulls his car to the side of the road, sits quietly, and takes a breath.28
Finally, he could pause.29 Its a compelling image of the magnitude of the
weight shouldered by a truly exceptional person,30 who as an anti-death
penalty lawyer did not rest often because he never lost touch with the
reality that so many lives depended on his work. 31
Beyond its surprising holding and staggering consequences, Furman is
an exceptional Supreme Court opinion in another sense. Although 5-4
holdings have been a staple of recent Supreme Court jurisprudence in
controversial cases, Furmans 5-4 holding was diffused across nine separate
opinions and more than a hundred pages, fragmenting its rationale. 32
Mandery describes how this came to be: At the Furman conference, Chief
Justice Burger deceptively claimed that he was switching his vote to the
majority side, taking from Justice Brennan the right, under Supreme Court
protocol, to assign the writing of the opinion, and then insisted that each
Justice write separately.33 Due to these machinations, Furman spoke in the
disjointed way that Justice Burger intended, without the authority and
coherence of the Supreme Courts unanimous opinion in Brown v. Board of
Education.34
Moreover, in what came to be Justice Burgers dissenting opinion, the
Chief Justice explicitly invited the legislative backlash that followed by

conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty to be so wantonly and
so freakishly imposed.).
27 See MANDERY, supra note 5, at 237 (Soon LDF learned that the decision had broad
application. Citing Furman, the justices had vacated the sentences in each of the 120 capital
cases pending before the Supreme Court. This meant that almost everyone on death row in
the United States would be entitled to be resentenced.).
28

MANDERY, supra note 5, at 23940.

See id. at 240 (As Amsterdam sat there, captivated by the beauty of the California
coastline, he felt free for the first time in years.).
29

30 Id. at 4344 (Everyone in this universe also shares the same ultimate judgment of
Amsterdam . . . the finest lawyer of his generation. Seth Waxman says, God broke the mold
when he created Tony.).
31 In an interview with Mandery, Tony Amsterdam stated, When you represent people
under sentence of death, youre always walking around with a dozen, fifty lives on your
shoulders . . . I remember the feeling of weight being lifted, knowing that these guysyou
worry about each and every one separatelywould live. Id. at 23940.

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giving instructions to legislatures for how they might revise death penalty
statutes to meet Furmans constitutional mandates: by providing
standards for juries and judges to follow in determining the sentence in
capital cases or by more narrowly defining the crimes for which the
penalty is to be imposed,35 essentially urging them to borrow the structure
of the capital statute drafted by the American Law Institute for the 1962
Model Penal Code.36 The Chief Justices interventions weakened Furman.
From the moment the opinion issued, it was vulnerable.
C. The Death Penaltys Revival Tale
Across the death penalty states, those who felt surprised and aggrieved
by Furmans precipitous ruling understood its vulnerability and proceeded
to strike back, enacting new death penalty statutes that purported to
redress the arbitrariness and discrimination in death penalty
administration that Furman found to be cruel and unusual punishment.37
Faced with the backlash of state legislatures and new personnel on the
Supreme Court, Furman proved too weak to sustain the death penaltys
abolition for long.38 A Wild Justice ends four years after Furman with the
Courts 1976 ruling in Gregg, in which a majority of the justices found that
capital punishment was not invariably cruel and unusual and that the
countrys new guided discretion death penalty statutes revised the death
penalty regime in a fashion that was not violative of the Eighth and
Fourteenth Amendments.39
Despite the astonishing quality of LDFs short-lived victory in Furman,
Mandery notes that Furman was more consistent with international opinion

32 See id. at 236 (Furman v. Georgia was, at the time it was decided, the longest decision in
Supreme Court history. At 66,233 words, Furman was longer than many novels, including The
Great Gatsby, The Red Badge of Courage, and Farenheit 451.).
33 Id. at 170.
34 347 U.S. 483 (1954); see MANDERY, supra note 5, at 243 (The Court was more fragmented
than it had ever been in its history. Furman had none of the authority of Brown.).
35

See Furman v. Georgia, 408 U.S. 238, 400 (1972) (Burger, J., dissenting).
See MANDERY, supra note 5, at 30406 ([T]he MPC became the basis, essentially, for
every American death penalty statute.).
36

37 See Gregg v. Georgia, 428 U.S. 153, 17980 (1976) (The legislatures of at least 35
States have enacted new statutes that provide for the death penalty for at least some crimes
that result in the death of another person.).
38 See MANDERY, supra note 5, at 356 (noting that between Furman and Gregg, President
Ford had appointed John Paul Stevens to replace Justice Douglas).
39

See Gregg, 428 U.S. at 195 ([T]he concerns expressed in Furman that the penalty of death
not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute
that ensures that the sentencing authority is given adequate information and guidance.).

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than was the subsequent case of Gregg.40 By 1968, Mandery indicates,

more than 70 nations had rejected the death penalty, including most of
Western Europe.41 When Furman abolished the death penalty, the United
States joined this trend. But when the Supreme Court upheld the states
new death penalty statutes in Gregg, the United States veered away from
the growing international movement to abolish death as punishment. 42
This is the moment when Americas use of the death penalty for cases
it deemed exceptional became a form of exceptionalismwhen American
death penalty policy began to diverge from gathering international norms.
Why did the United States buck the worldwide trend toward abolition?
Why did America resuscitate capital punishment in the same historical
period when European countries were pulling the plug? What is
exceptional in Americas approach to capital punishment that explains its
death penalty exceptionalism?43
In discussing resistance to Furman, Mandery observes that opposition
to the Courts abolition of the death penalty was grounded in issues of
race.44 Agreeing with Manderys assessment, I want to extend his
observation and make an even stronger claim. I suggest that the story of
the American death penalty from its inception to the present day is in large
measure a story of race.
II.

The Death Penalty and Race

A. A Southern Sanction

We know that social control and racial hierarchy have long been
entangled in Americas institutions of criminal justice.45 We know that the
40 See MANDERY, supra note 5, at 63 (In June 1967, Time reported that it was only a matter
of time before the United States succumbed to the worldwide trend [toward abolition of the
death penalty] . . . .).
41 Id.
42 See, e.g., GARLAND, supra note 2, at 11 (At the start of the twenty-first century, the
federal government and dozens of states continue to use capital punishment at a time when
all other Western nations have decisively abandoned it.); see also FRANKLIN E. ZIMRING, THE
CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 56 (2003) (Alone among the Western
democracies, state governments in the United States authorize and conduct executions as
criminal punishment . . . .).
43 For an intriguing reframing of this question, see GARLAND, supra note 2, at 10 (What
was once a familiar moral debate has been reborn as a sociological and historical problem:
how to explain the peculiarities of Americas twenty-first century death penalty?).
44 MANDERY, supra note 5, at 266 (Why was the public so angry with the Supreme Court
about Furman? . . . The most significant context is race.).
45

Using historical detail, Michelle Alexander powerfully supports this thesis in MICHELLE
ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 12, 16
(2010) (It may be helpful . . . to think of the criminal justice systemthe entire collection of

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states that most rely on the death penalty are the states of the Old
Confederacy.46 Franklin Zimring and Gordon Hawkins have stated that the
Souths post-Gregg use of the death penalty is so disproportionate to its use
in other regions that the South seems like another country,47 as if Southern
states had actually succeeded in seceding as they once threatened to do in
order to preserve slavery.48
We know that the word abolitionist applied to the movement to end
slavery before it applied to the movement to end the death penalty, an echo
that suggests resonances between these two movements.49 Given these
resonances, it is not surprising that the NAACP LDF, a civil rights
organization founded by Thurgood Marshall and dedicated to legal
strategies for reducing racial inequality in America, became the architects
of the anti-death penalty litigation movement. 50 Mandery provides us a
sense of the decision-making process, with Michael Meltsner in the lead, by
which this came to be true.51
Other commentators have suggested that an appropriate reason for
LDF to become involved in the anti-death penalty campaign was that many
African-Americans were under death sentences.52 While undoubtedly true,

institutions and practices that comprise itnot as an independent system but rather as a
gateway into a much larger system of racial stigmatization and permanent marginalization. . . .
What this book is intended to do . . . is to stimulate a much-needed conversation about the
role of the criminal justice system in creating and perpetuating racial hierarchy in the United
States.).
46

As of April 4, 2014, 1122 of 1374 executions in the United States since 1976 have taken
place in the South, more than 80% of all executions in the post-Gregg era. See Number of
Executions by State and Region Since 1976, DEATH PENALTY INFO. CTR., http://www.death
penalty info.org /number-executions-state-and-region-1976 (last visited Aug 5, 2014).
47 See FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE
AMERICAN AGENDA 31, 12830 (1986) (reviewing Americas execution statistics and asserting
that [a]t first sight, so striking is the contrast between the South and the other regions that the
South appears to be another country.).
48 See ELIZABETH R. VARON, DISUNION!: THE COMING OF THE AMERICAN CIVIL WAR, 1789
1859 4, 6 (2008) ([W]hile scholars can agree that slavery, more than any other issue, divided
North and South . . . [o]nly in the wake of John Browns 1859 [anti-slavery] raid at Harpers
Ferry were Southern nationalists able to convert calls for secession into a regional mandate
and to put the mechanism to the test.).
49 See, e.g., Diann Rust-Tierney, We, Too, Are Abolitionists: Black History Month, Slavery and
the Death Penalty, HUFFINGTON POST (May 25, 2011, 1:05 PM),http://www.huffingtonpost.com
/diann-rusttierney/we-too-are-abolitionists_b_168386.html.
50

See MANDERY, supra note 5, at 3133.

See id. at 3335.
52 See, e.g., David Oshinsky, Stay of Execution, N.Y. TIMES, Sept. 1, 2013, available at 2013
WLNR 21722480 (The first sustained legal assault on the death penalty was organized by
[LDF] and led by a group of young attorneys who viewed capital punishment as a civil rights
51

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this observation skims the surface. I think LDFs deeper reasons for
involvement in the abolition movement lie in the long and braided
relationship between race and the death penalty. 53
Many scholars have illustratedthrough information,54 statistics,55
and harrowing narratives56the extent to which race has influenced
decisions about death as punishment. I think it is important to look in the
reverse direction as well: to question not only how race influences the
death penalty, but how the death penalty influences race, and indeed, how
the death penalty has participated through American history in giving
meaning to the concept of race.57 If we look both ways, we will see more
fully the profoundly symbiotic relationship between the two and have a
clearer sense of the death penalty as one of the legacies of race-based
chattel slavery that remains unresolved to this day.58

issue because of the high percentage of blacks on death row.).

53 See Phyllis Goldfarb, Pedagogy of the Suppressed: A Class on Race and the Death Penalty, 31
N.Y.U. REV. L. & SOC. CHANGE 547, 553 (2007) (discussing how state criminal justice systems
have perpetuated the message that black lives are not equal to white lives, which helps to
explain why national civil rights organizations like the NAACP Legal Defense Fund became
involved in criminal justice issues, such as capital punishment).
54 See generally FROM LYNCH MOBS TO THE KILLING STATE: RACE AND THE DEATH PENALTY IN
AMERICA 1 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2006) (illuminating the relationship
between race and the death penalty).
55 The most compelling statistical effort to isolate the role that race may have played in
capital sentencing from the role that more than two hundred legitimate factors may have
played was conducted by Iowa law professor David Baldus and his research team. Using
sophisticated statistical techniques, they demonstrated that criminal defendants convicted of
killing white people were 4.3 times more likely to receive the death penalty than were those
convicted of killing black people. DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES
PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 143
(1990).
56 See, e.g., PETE EARLEY, CIRCUMSTANTIAL EVIDENCE: DEATH, LIFE, AND JUSTICE IN A
SOUTHERN TOWN (1995) (depicting a journalists account of the capital conviction of Walter
McMillianan African-American man convicted of the murder of a young white woman on
the basis of perjured testimony and the withholding of exculpatory evidencewho was
ultimately exonerated due to the heroic efforts of Bryan Stevenson, a devoted capital defense
attorney).
57 See ALEXANDER, supra note 45, at 197 (arguing that contemporary criminal justice policy
participated in defining the meaning and significance of race in America).
58 See, e.g., PETER BALDWIN, THE NARCISSISM OF MINOR DIFFERENCES: HOW AMERICA AND
EUROPE ARE ALIKE 226 (2009) (asserting that the most significant distinction between America
and Europe [i]s not a grand opposition of worldviews or ideologies . . . it is the still
unresolved legacy of slavery and its tragic modern consequence of a . . . racially identifiable
underclass . . . .).

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B. Historical Links
In the seventeenth through the nineteenth centuries, race-based chattel
slavery was the practice, white supremacy was the ideology, and racial
stereotyping was the consequence.59 Slaveholders, not inclined to view
themselves as perpetuating injustice, rationalized the institution on which
their economy was built through attributions that constructed African
slaves as unfit for liberty, suited for enslavement, and inherently unequal
with the white slaveholding class. 60 Through these attributions, blacks
came to be seen as inferior in many respects. 61
When the slave system met its end, not by consensus but by force, the
ideas of racial difference that had infused and justified that system
constructing the meaning of race in America for more than two centuries
could not be extinguished.62 In a newly destabilized Southern social
structure, this deep-seated set of racialized beliefs found alternate
structures capable of transforming racial bondage into racial caste. 63 After

59 See ALEXANDER, supra note 45, at 26 ([D]eep faith in white supremacy not only justified
an economic and political system in which plantation owners acquired land and great wealth
through the brutality, torture, and coercion of other human beings; it also endured, like most
articles of faith, long after the historical circumstances that gave rise to the religion passed
away.).
60 Id. (Faith in the idea that people of the African race were bestial, that whites were
inherently superior, and that slavery was, in fact, for blacks own good, served to alleviate the
white conscience and reconcile the tension between slavery and the democratic ideals
espoused by whites in the so-called New World.).
61 See DAVID M. OSHINSKY, WORSE THAN SLAVERY: PARCHMAN FARM AND THE ORDEAL OF
JIM CROW JUSTICE 83 (1996) (describing views of turn-of-the-century Southern penologists that
Southern white societies needed strategies for dealing with their large alien population, an
inferior race).
62

ALEXANDER, supra note 45, at 26 (The history of racial caste in the United States would
end with the Civil War if the idea of race and racial difference had died when the institution
of slavery was put to rest. . . . Indeed, the notion of racial differencespecifically the notion of
white supremacyproved far more durable than the institution that gave birth to it.); see also
PHILIP DRAY, AT THE HANDS OF PERSONS UNKNOWN: THE LYNCHING OF BLACK AMERICA 51
(2002) (explaining that because the plantation system, which was built on the doctrine of
cheap labor, was essentially left intact, the inferior economic and social status of
propertyless, illiterate ex-slaves made them vulnerable to abuse and subject to perceptions
that they were a restive group unable to fit into society.).
63

See DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF

BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 4142 (2008) ([I]n 1865, there was
no strategy for cleansing the South of the economic and intellectual addiction to slavery. . . .
[T]he intensity of southern whites need to reestablish hegemony over blacks rivaled the most
visceral patriotism of the wartime Confederacy. White southerners initiated an extraordinary
campaign of defiance and subversion against the new biracial social order imposed on the
South . . . .); see also DRAY, supra note 62, at 36 (That whites would resort to violence against

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the Civil War, these cultural expressions took brutal forms because they
were animated by a genuine fear among Southern whites of black
insurrection.64 During this time, the stereotype of dangerous and predatory
black men who might attack white people and rape white women gained
increasing traction.65
Late nineteenth century fears that the longstanding racial hierarchy
was at risk prompted white Southerners to devise ways to control four
million newly freed slaves, and motivated a search for coercive institutions
that could reproduce the prevailing racial ideologies and the subordinated
racial class that slavery had generated.66 When the brief experiment with
federal policies to advance and protect former slaves during
Reconstruction came to a close, these new racial structures were given the
space to flourish.67 What coercive substitutes were available? One was the
criminal justice system.68
Historian William Cohen quotes a post-Civil War Southern plantation
owner who, advocating for criminal laws to govern blacks, stated that
they must be controlled in some way or white people cannot live among
them.69 In keeping with this sentiment, by centurys end, all the Southern

their former chattel had never been much in doubt.).

64 See ALEXANDER, supra note 45, at 28 (Rumors of a great insurrection terrified whites, and
blacks increasingly came to be viewed as menacing and dangerous.). Of course, such fears
and rumors were not necessarily grounded in reality. Cf. DRAY, supra note 62, at 26 ([F]ears of
insurrections usually far outpaced the number of actual events.).
65 See ALEXANDER, supra note 45, at 28 ([T]he current stereotypes of black men as
aggressive, unruly predators can be traced to this period.); see also DRAY, supra note 62, at 45
(describing the folk pornography that developed in daily Southern newspapers, providing
lurid accounts of crimes by blacks that created a [c]umulative impression . . . of a world
made precarious by Negroes).
66 See Michael Fraser, Crime for Crime: Racism and the Death Penalty in the American South, 10
SOCIAL SCIENCES J. 1 (2011) (The Civil War and the subsequent emancipation of four million
Southern slaves threatened to turn the racial hierarchy upon its head.); see also DRAY, supra
note 62, at 35 (explaining that emancipation was a sharp narcissistic wound for Southern
whites, that [n]orthern armies took more than property away; they changed in a
fundamental manner the mastery-and-deference relations between the races (quoting JOHN
DOLLARD, CASTE AND CLASS IN A SOUTHERN TOWN 186 (1937)).
67

See ALEXANDER, supra note 45, at 30 (The backlash against the gains of African
Americans in the Reconstruction Era was swift and severe.).
68 See Fraser, supra note 66, at 1 (With their system of absolute control now gone, Southern
whites were forced to utilize another tool to exercise oppression: the criminal justice
system.); see also OSHINSKY, supra note 61, at 3233 (describing perceptions of Southern
whites that criminal behavior came naturally to ex-slaves and that post-Civil War law
enforcement meant keeping the ex-slaves in line).
69 See WILLIAM COHEN, AT FREEDOMS EDGE: BLACK MOBILITY AND THE SOUTHERN WHITE
QUEST FOR RACIAL CONTROL 28 (1991) (cited in ALEXANDER, supra note 45, at 28).

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states had adopted under law comprehensive structures for separation of

the races and discrimination against blacks, the system that came to be
called Jim Crow.70 Part of this system involved deploying criminal justice
processes against blacks; aggressively and selectively enforcing criminal
laws, often for vaguely defined minor criminal offenses such as
vagrancy; and leasing the largely black prison population as forced
laborers throughout the South, under conditions closely resembling
slavery.71
Social conditions of racial separatism and pervasive racial inequality
nourished and maintained ideologies of racial difference, just as the
ideologies of racial difference maintained these social conditions. 72 In this
climate, lynching became a practice of racial violence staged publicly to
bolster norms of white racial dominance.73 Statistics show that there is a
powerful correlation between states where lynchings were high and states
where modern-day executions are high.74 This cannot be rationalized in a
non-racialized way, as simply a regional taste for severe punishment,
because lynchings were typically white-on-black murders, capital crimes
committed with impunity.75 The absence of any criminal justice
70

See ALEXANDER, supra note 45, at 30.

Id. at 28 (Nine southern states adopted vagrancy lawswhich essentially made it a
criminal offense not to work and were applied selectively to blacksand eight of those states
enacted convict laws allowing for the hiring-out of county prisoners to plantation owners and
private companies. . . . Clearly, the purpose of . . . vagrancy laws in particular was to establish
another system of forced labor.).
71

72 Convict leasing is a compelling example of a post-Civil War practice rooted in racial

separation and inequality and designed to reinforce the ideologies of black inferiority that
worked to perpetuate the practice. See BLACKMON, supra note 63. Blackmons book graphically
describes many decades in which sheriffs used vagrancy laws as a justification for selling
thousands of black men into harsh labor conditions that constituted slavery in all but name
guilty of no crimes and entitled by law to freedom, [they] were compelled to labor without
compensation, were repeatedly bought and sold, and were forced to do the bidding of white
masters through the regular application of extraordinary physical coercion. Id. at 24.
73 See DRAY, supra note 62, at xi (describing lynching as a tradition, a systematized reign of
terror that was used to maintain the power whites had over blacks, a way to keep blacks
fearful and to forestall black progress and miscegenation . . . a constant source of intimidation
to all black Southerners young and old and a daily reminder of their defenselessness); see also
OSHINSKY, supra note 61, at 29 (describing how Emancipation, perversely, had increased
blacks vulnerability to white mobs and white courts).
74 See, e.g., ZIMRING, supra note 42, at 96 (reporting that [t]hose states that had the most
extensive lynching histories in the past now execute without exception and collectively
dominate the nations execution totals). Zimrings statistical analysis also confirms that [t]he
victims of lynching were overwhelmingly African American . . . . Id. at 90.
75

See DRAY, supra note 62, at 457 (describing numerous examples of the participation and
complicity of law enforcement in lynchings of African Americans, stating that lynch mobs
operated with complete impunity, and reporting that the first time since Reconstruction that

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consequences for the capital crime of lynching is yet another indication that
the criminal justice system was being used strategically and selectively to
support racial hierarchy, not to challenge it.76
Similarly, capital punishment, when administered selectively by race
of defendant and victim, was a useful tool for supporting racial hierarchy.77
The death penalty could effectively give meaning to race in America as a
hierarchy of not just superior and inferior, but fully human and
subhuman.78 Ideologically, these are the reasons that underlie the statistics

the federal government waded into a lynching case in the South and emerged with
convictions and prison sentences was the 1964 Philadelphia, Mississippi murders of voting
rights activists Goodman, Chaney, and Schwerner in which a mob acted in collaboration
with police). When Ronald Reagan launched his 1980 Presidential campaign near
Philadelphia, Mississippi, he explicitly asserted his support for states rights and his
disapproval of the granting of powers to the federal government that were never intended to
be given in the Constitution, unsettlingly implying his support for a return to the pre-civil
rights era. See Bob Herbert, Op-Ed., Righting Reagans Wrongs?, N.Y. TIMES (Nov. 13, 2007),
http://www.nytimes.com/2007/11/13/opinion/13herbert.html?_r=1&.
76

Drays examination of longstanding lynching practices in the South leads him to

generalize his observations to criminal justice practices more generally, asking: Is it possible
for white America to really understand blacks distrust of the legal system, their fears of racial
profiling and the police, without understanding how cheap a black life was for so long a time
in our nations history? See DRAY, supra note 62, at xi.
77 After Zimring finds statistical support for the conclusion that lynching history predicts
modern executions, he associates each practice with contemporary survey evidence of the
Souths attachment to provigilante values. See, e.g., ZIMRING, supra note 42, at 97, 103. He
does not identify the longstanding use of Southern vigilantism after the Civil War as a distinct
instrument of racial terror, or suggest that ideologies of race can link the two notably
racialized practices of lynching and capital punishment. This is surprising, especially given
the well-known connection between lynching and capital punishment that led to widespread
use of the term legal lynching[s] to refer to capital trials of blacks for crimes against whites.
See e.g., DAN T. CARTER, SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH 115 (1969)
(observing that in their pleas to lynch mobs, Southern officials implicitly promised that the
outcomes of capital trials would differ from lynchings only in form); JAMES GOODMAN,
STORIES OF SCOTTSBORO 2431 (1994).
78 The denial of the humanity of the condemned was one of the bases for Justice Brennans
conclusion in Furman that the death penalty invariably constituted cruel and unusual
punishment. See Furman v. Georgia, 408 U.S. 238, 27073 (1972) (Brennan, J., concurring)
(The State, even as it punishes, must treat its members with respect for their intrinsic worth
as human beings. The true significance of [extremely severe] punishments is that they treat
members of the human race as nonhumans, as objects to be toyed with and discarded.).
When applied disproportionately to blacks convicted of violent crimes against white victims,
the death penalty, like lynching and slavery before it, reinforced perceptions of blacks as
subhuman. See also DRAY, supra note 62, at 45 (describing a turn-of-the-century spectacle
lynching in Georgia of a likely innocent black farmhand suspected of murder and rape, who
was described in the press as a monster in human form, a fiend incarnate, and a black
brute who because of his carnival of blood and lust must be run down and made to suffer

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adduced decades later by LDF when litigating McCleskey v. Kemp,79 which

illustrated that raceespecially the race of the victimwas a significant
factor in determining who received the death penalty. 80 In upholding
McCleskeys death sentence, despite compelling evidence that race plays a
major role in selecting the condemned for execution, the Supreme Court
revealed its willingness to let state-imposed death serve as a method for
maintaining racial hierarchy.81
The role of criminal justice in reproducing racial hierarchy is wellillustrated by Parchman Farm in Mississippi, a 20,000 acre antebellum
plantation transformed after slaverys end into neoslavery: a labor camp
for black convicts who grew cotton and other crops in Parchmans fields,
and were leased out to work for decades to the highest commercial
bidders.82 Parchman imprisoned civil rights activists in the 1960s83 and has
long housed Mississippis death row and execution chamber. 84 In the year
that Furmans Eighth Amendment claim was decided, a federal judge in
Mississippi held that the conditions at Parchman were cruel and unusual in
violation of the Eighth Amendment, finding the prison unfit for human
habitation.85 The story of Parchman Farm joins race to place, its history a
collage of slavery, Jim Crow, opposition to the civil rights movement,
racialized use of criminal justice, and the death penalty. 86

the torments of the damned in expiation of his hellish crime).

79

McCleskey v. Kemp, 481 U.S. 279 (1987).

See BALDUS ET AL., supra note 55, at 147 (describing statistical analysis supporting the
conclusion that having a white victim was as significant a factor as having a prior murder
conviction in explaining who received death sentences).
80

81 Although the Supreme Court accepted the statistical validity of the Baldus study, it
rejected LDFs Eighth and Fourteenth Amendment arguments that Baldus findings
undermined the constitutionality of death sentences. See McCleskey, 481 U.S. 279. The failure to
condemn race discrimination in capital sentencing positioned the Supreme Court as tolerating
lethal violence imposed, in part, on the basis of race, calling to mind Frederick Douglas
exhortation that until the voice of the North is heard in emphatic condemnation [of
lynching], the sin against the Negro is both sectional and national. DRAY, supra note 62, at 67.
82

See OSHINSKY, supra note 61, at 2 ([Parchmans] story covers the bleak panorama of race
and punishment in the darkest corner of the South.).
83

Id. at 235.
See DONALD A. CABANA, DEATH AT MIDNIGHT: CONFESSIONS OF AN EXECUTIONER 19193
(1996) (describing the authors experiences as the warden at Parchman Farm charged with
conducting executions).
84

85 See Gates v. Collier, 501 F.2d 1291, 1303 (5th Cir. 1974) (upholding Gates v. Collier, 349 F.
Supp. 881 (N.D. Miss. 1972)).
86

See generally John O. Calmore, Racialized Space and the Culture of Segregation: "Hewing a
Stone of Hope from a Mountain of Despair," 143 U. PA. L. REV. 1233, 1235 (1995) (describing the
racialization of space as a process by which a location becomes connected to a racial identity).

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C. Civil Rights Backlash

As this examination of history reveals, the reasons for LDF to take the
lead in the late twentieth centurys abolition campaign ran broad and deep.
The movement to abolish the death penalty, while it surely involved other
issues too, was inextricably entangled in the operation of race.87 No account
of Americas death penalty exceptionalismits return to the death penalty
in 1976 after a brief experience with abolitioncan be complete unless
Americas particular experience of race is cast a central role.88
As Mandery indicates, everyone understood Furman as having been
about race.89 He grounds this assertion in the events that followed from
the end of Jim Crow and the advent of civil rights. These events had
threatened to advance African-American progress and disrupt the

87 The statistics on the use of the death penalty to support race hierarchy are nowhere more
apparent than in the case of capital punishment for the crime of rape. Before the Supreme
Court prohibited death sentences for rape in Coker v. Georgia, 433 U.S. 584 (1977), 110 of the
119 defendants given death sentences for rape in 12 southern states between 194565 were
black. MANDERY, supra note 5, at 39. This finding was drawn from research conducted by
criminologist Marvin Wolfgang, who concluded that there has been a systematic, differential
practice of imposing the death penalty on blacks for rape and, most particularly, when the
defendants are black and their victims are white. ZIMRING & HAWKINS, supra note 47, at 35.
This pattern of capital punishment links to post-Emancipation fears that sexual relationships
between black men and white women threatened white supremacy through interbreeding. See
DRAY, supra note 62, at 60. Black mens sexual assault of white women, with or without proof,
was the allegation that fomented lynchings, and the most common trigger for sexual
mutilation spectacle lynchings. Id. at 60, 82. The frenzy unleashed by this allegation is an
inversion of reality, since a central feature of the slave system had been the rape of black
women by white men. Id. at 70. Author Lillian Smith describes the jealous panic that
overtook the white Southern man when he began to project his own sins on to the Negro
male. And when he did that, a madness seized our people. See LILLIAN SMITH, KILLERS OF THE
DREAM 117 (1949). Abhorrence of these realities linked racial justice advocates and death
penalty abolitionists.
88 I agree with Carol Steiker that Americas death penalty exceptionalism is multiply
determined. See Steiker, supra note 11, at 101. Nonetheless, while multiple forces
undoubtedly play some role in Americas continued use of the death penalty, it is worth
noting the racial history and meaning of many of the alternate explanations for post-Gregg
death penalty use that Steiker identifies, such as public opinion, populism, criminal justice
populism, the politics of crime, historical contingency, and federalism (in and of itself, a
structural concept with a significant racial pedigree). Id. at 10230. The thesis of my Essay, that
I have endeavored to support and elaborate here, is that race is embedded in the structure of
American society through the interaction of multiple institutions, including the criminal
justice system, that produces racialized outcomes both consciously and unconsciously.
Therefore, Americas underlying racial history is implicated in, and interacts with, many of
these alternate explanations for Americas death penalty exceptionalism.
89

MANDERY, supra note 5, at 276.

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prevailing racial order.90 One potent form that backlash to civil rights took
was law and order rhetoric expressed in racially coded terms,91 and the
death penalty was an important aspect of the racially charged tough-oncrime movement.92 Racially inflected crime rhetoric was part of Nixons
Southern Strategy to bring into the Republican party white voters who
feared and resented the black communitys civil rights progress.93
By 1972, there was a growing public outcry against the Warren Courts
support for civil rights.94 Just as the South had once agreed to join the
United States only if the federal government allowed states to retain
slavery,95 just as the people and the governments of the Southern states had
defied Reconstruction, forced federal troops to withdraw, and substituted
Jim Crow in its place,96 the backlash against the Second Reconstruction of
the civil rights era was also supported by the racialized argument of states

90 Of course, the Supreme Court had participated in these changes. See ALEXANDER, supra
note 45, at 36 (Brown v. Board of Education . . . signaled the end of home rule in the South
with respect to racial affairs.); see also MANDERY, supra note 5, at 274 (The justices were
agents of unwanted social change, and through their decisions on busing and capital
punishment had sought to aid and protect a population that whites regarded as dangerous
and undesirable.).
91 See ALEXANDER, supra note 45, at 40 (Proponents of racial hierarchy found they could
install a new racial caste system without violating the law or the new limits of acceptable
political discourse, by demanding law and order rather than segregation forever.).
92 See, e.g., LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 376
(1993) (indicating that many white Southerners defended the death sentences in the
Scottsboro case as if their way of life depended on black defendants in cases like these
receiving extreme punishment). See also EARLEY, supra note 56 (revealing the time-tested
tropes and racial imagery leading to the wrongful capital conviction of an African-American
defendant for the 1986 murder of a young white woman in Monroeville, Alabama, ironically
the home of Harper Lee and the setting for a similar case depicted in To Kill A Mockingbird).
93 See ALEXANDER, supra note 45, at 44 (indicating that Nixon consciously though
surreptitiously appealed to racial fears and antagonisms as a central part of his strategy to
woo white Southern voters). Mandery also discusses Nixons decision to manipulate
racialized law and order rhetoric for partisan reasons. MANDERY, supra note 5, at 27174.
94 MANDERY, supra note 5, at 27576 (asserting that frustration with the Supreme Court
was really born out of underlying resistance to the Courts position on race and social issues
but that the publics antipathy was expressed in the campaign to revive capital
punishment because Furmans weakness signaled that this campaign could succeed).
95 ALEXANDER, supra note 45, at 25 (The Southern slaveholding colonies would agree to
form a union only on the condition that the federal government would not be able to interfere
with the right to own slaves.).
96 Id. at 3031 (Jim Crow was born after Southern conservatives undertook a campaign
to redeem the South, employing terrorist tactics such as bombings, lynchings, and mob
violence, which proved highly successful and resulted in the withdrawal of federal troops
from the South and the effective abandonment of African Americans . . . .).

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rights to be free from federal interference.97 Based in part on that racialized

assertion, Nixon provoked public opposition to the Supreme Court 98 and
began appointing justices who he believed would support white
resentment and roll back the civil rights tide.99
This is how to understand the particular move from Furman to Gregg.
At the time Furman was decided, civil rights backlash was already in the
ascendant, in the country and on the Supreme Court.100 So Furman died
young, a victim of racial terror. Gregg returned the death penalty to the
states to use as part of their system of racial control.101 Because harshness
has been a particular feature of Americas systems of racial control,
Americaunlike its allies in Europeclung to its harshest punishment.102

CONCLUSION
Professor Franklin Zimring believes that America will get back on the
European track before too long and bring the American death penalty era

97 Id. at 47 (Conservatives gave lip service to the goal of racial equality but actively
resisted desegregation, busing, and civil rights enforcement.). Each of these issues involved
laws and policies supported by the federal government and upheld by the Supreme Court,
but resisted within many states, whose opposition to civil rights policies was expressed in the
rhetoric of federalism. See id. at 3637.
98 See MANDERY, supra note 5, at 274 (suggesting that when Nixon stated in his second
inaugural address that [g]overnment must learn to take less from people so that people can
do more for themselves, his subtext was that [i]t was illegitimate for the Court, or any other
federal government institution, to impose its values on the people.).
99 The four dissenters in FurmanBurger, Powell, Blackmun, and Rehnquistwere all
Nixon appointees to the Supreme Court. See MANDERY, supra note 5, at 9293, 12526.
100

See generally THOMAS BYRNE EDSALL & MARY D. EDSALL, CHAIN REACTION: THE IMPACT
33, 3639 (1991) (describing how the civil
rights movement led to conservatives organized advocacy in opposition to federal programs
that benefitted African-Americans). The ideologies of race in America, which led to backlash
against Emancipation, Reconstruction, and other advances in racial equality, also led to the
backlash against civil rights that influenced the Supreme Courts decision in Gregg.
101 Edward Lazarus views opposition to the Supreme Courts civil rights caseswhich
would include Furmanas referenda on the legacy of Scottsboroon the idea that racism is
endemic; that state judicial systems, especially in the South, cannot be trusted; and that the
federal courts and ultimately, the Supreme Court must serve as the guarantors of social
justice. See EDWARD LAZARUS, CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE
MODERN SUPREME COURT 85 (1998).
OF RACE, RIGHTS, AND TAXES ON AMERICAN POLITICS

102 In 1903, W.E.B. Du Bois stated that: [The Souths] police system was arranged to deal
with blacks alone, and tacitly assumed that every white man was ipso facto a member of that
police. Thus grew up a double system of justice, which erred on the white side by undue
leniency and the practical immunity of red-handed criminals, and erred on the black side
with undue severity and injustice. See W.E.B. DU BOIS, THE SOULS OF BLACK FOLK 129
(1990).

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to a close once again.103 Indeed use of the death penalty has declined in
recent years.104 Does that signal that Zimring is right? That we are moving
toward the inevitable end of our death penalty exceptionalism? If so, it will
be because exceptional lawyers, judges, and thinkerslike my coparticipants in this symposiumand exceptional books like A Wild Justice
revealed the death penaltys true character and thereby hastened its end.

103

See ZIMRING, supra note 42, at 205 (after reviewing the contradictions of capital
punishment practices, concluding that the end game in the effort to purge the United States
of the death penalty has already been launched. The length and the intensity of the struggle
necessary to end the death penalty are not yet known, but the ultimate outcome seems
inevitable. . . .).
104

After reaching a high in 1999, executions have declined each year since 2009. See
Executions By Year Since 1976, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/
executions-year (last visited Aug. 12, 2014).