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Race, Exceptionalism, and the American Death Penalty: A Tragedy in Many Acts



T 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 co- panelistsProfessors Evan Mandery, Michael Meltsner, Carol Steiker, and Judge Ponsorwhose thoughts and writings deepened my reflections.

1 408 U.S. 238, 309 (1972). 2 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


11 (2010). This reality was the basis for Justice Stewart’s 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, 309–10 (1972) (Stewart, J., concurring).



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landmark capital cases of the 1970s, Furman v. Georgia 3 (Furman) and Gregg v. Georgia 4 (Gregg), the cases at the center of A Wild Justice. 5 But the move from adjective to noun, from exceptionalto exceptionalism,brings with it another connotation, the sense of something that is out of step with norms and patterns. 6 The word exceptionalismis typically ascribed to a nation, to a country out of step. 7 These days, the adjective that typically precedes the word exceptionalismis American,8 which inspires admiration from some and attack from others. 9 The suggestion inherent in the noun exceptionalismis 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.

4 428 U.S. 153 (1976).


PUNISHMENT IN AMERICA 215–20 (2013) (discussing Justices Stewart and White’s agreement to base their Furman concurrences on the constitutional problems flowing from the relative rarity of death sentences—that “wantonly” and “freakishly” imposed death sentences could not serve any legitimate penological goal and represented cruel and unusual punishment under the Eighth Amendment).

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).


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,


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 world’s 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), (“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 aren’t applied to your acts as are applied to everyone else’s.”).

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.”).

7 See












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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 1972 12 and its rebirth in 1976 13 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 events 14 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 America’s 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 America’s 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

(“Weschler’s compromise, including a modified death penalty in the MPC 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 penalty’s regulatory regime). 19 Mandery’s novels include: EVAN J. MANDERY, Q: A NOVEL (2011); EVAN J. MANDERY,



helped create

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 Larsen’s perfect game in the 1956 World Series, the sort of accomplishment that stretches even a child’s 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 penaltyunder the Eighth Amendment, although he ultimately limited his public actions, at Chief Justice Warren’s request, to expressing just one of his concerns in a dissent from the Court’s denial of certiorari in Rudolph v. Alabama, 375 U.S. 889 (1963), reh’g denied, 375 U.S. 917 (1963)). Justice Goldberg’s 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 Goldberg’s dissent and decided to put the death penalty on LDF’s 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] don’t think that one can say that language in the Constitution, which by inference permits the

.” Id. at 14549, 460 (noting

death penalty, meant to project a continuing permission of it

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 California’s 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


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

appear to be tasks which are beyond present human ability.” Id. at 204.


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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, Furman’s 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 Court’s unanimous opinion in Brown v. Board of Education. 34 Moreover, in what came to be Justice Burger’s 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.

29 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.’”).

30 Id. at 43–44 (“Everyone in this universe also shares the same ultimate judgment of


when he created Tony.’”).

31 In an interview with Mandery, Tony Amsterdam stated, “When you represent people under sentence of death, you’re always walking around with a dozen, fifty lives on your


worry about each and every one separately—would live.” Id. at 23940.

‘the finest lawyer of his generation.’ Seth Waxman says, ‘God broke the mold

I remember the feeling of weight being lifted, knowing that these guysyou


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giving instructions to legislatures for how they might revise death penalty statutes to meet Furman’s 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 Justice’s interventions weakened Furman. From the moment the opinion issued, it was vulnerable.

C. The Death Penalty’s Revival Tale

Across the death penalty states, those who felt surprised and aggrieved by Furman’s 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 penalty’s abolition for long. 38 A Wild Justice ends four years after Furman with the Court’s 1976 ruling in Gregg, in which a majority of the justices found that capital punishment was not invariably cruel and unusual and that the country’s 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 LDF’s 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).

36 See MANDERY, supra note 5, at 304–06 (“[T]he MPC became the basis, essentially, for every American death penalty statute.”).

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 America’s 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 America’s approach to capital punishment that explains its death penalty exceptionalism? 43 In discussing resistance to Furman, Mandery observes that opposition to the Court’s abolition of the death penalty was grounded in issues of race. 44 Agreeing with Mandery’s 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


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 America’s twenty-first century death penalty?”).

44 MANDERY, supra note 5, at 266 (“Why was the public so angry with the Supreme Court

about Furman?

45 Using historical detail, Michelle Alexander powerfully supports this thesis in MICHELLE


(2010) (“It may be helpful

to think of the criminal justice systemthe entire collection of


The most significant context is race.”).


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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 abolitionistapplied 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

What this book is intended to do

role of the criminal justice system in creating and perpetuating racial hierarchy in the United


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 /number-executions-state-and-region-1976 (last visited Aug 5, 2014).

is to stimulate a much-needed conversation about the

47 See











AMERICAN AGENDA 31, 12830 (1986) (reviewing America’s 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.’”).


1859 4, 6 (2008) (“[W]hile scholars can agree that slavery, more than any other issue, divided

North and South

Ferry were Southern nationalists able to convert calls for secession into a regional mandate

[o]nly in the wake of John Brown’s 1859 [anti-slavery] raid at Harpers

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),


50 See MANDERY, supra note 5, at 3133.

51 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


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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 narratives 56 the 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).


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




SOUTHERN TOWN (1995) (depicting a journalist’s 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”).


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 unresolved legacy of slavery and its tragic modern consequence of a


it is the still racially identifiable



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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 systemconstructing the meaning of race in America for more than two centuriescould 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.”).


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

white supremacy—proved far more durable than the institution that gave birth to it.”); see also


(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.”).


BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 41–42 (2008) (“[I]n 1865, there was no strategy for cleansing the South of the economic and intellectual addiction to [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


.”); see also DRAY, supra note 62, at 36 (“That whites would resort to violence against

Indeed, the notion of racial differencespecifically the notion of


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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 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


of a world

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”).


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.

71 Id. at 28 (“Nine southern states adopted vagrancy laws—which 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


another system of forced labor.”).

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. Blackmon’s 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.

vagrancy laws in particular was to establish

Clearly, the purpose of

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

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”).

fearful and to forestall black progress and miscegenation

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 nation’s execution totals”). Zimring’s statistical analysis also confirms that “[t]he

victims of lynching were overwhelmingly African American

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

.” Id. at 90.


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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 statesrights 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 Reagan’s Wrongs?, N.Y. TIMES (Nov. 13, 2007),

76 Dray’s 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 nation’s 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 South’s 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.


(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,


78 The denial of the humanity of the condemned was one of the bases for Justice Brennan’s 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 brutewho 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 McCleskey’s 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 well- illustrated 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 Parchman’s fields, and were leased out to work for decades to the highest commercial bidders. 82 Parchman imprisoned civil rights activists in the 1960s 83 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).

80 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).

81 Although the Supreme Court accepted the statistical validity of the Baldus study, it rejected LDF’s 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 (“[Parchman’s] story covers the bleak panorama of race and punishment in the darkest corner of the South.”).

83 Id. at 235.


(1996) (describing the author’s experiences as the warden at Parchman Farm charged with conducting executions).

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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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 men’s 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 America’s death penalty exceptionalism is “multiply determined.” See Steiker, supra note 11, at 101. Nonetheless, while multiple forces undoubtedly play some role in America’s 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, America’s underlying racial history is implicated in, and interacts with, many of these alternate explanations for America’s 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-on- crime 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 Court’s 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

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.’”).


(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).

signaled the end of ‘home rule’ in the South

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 Nixon’s decision to manipulate racialized law and order rhetoric for partisan reasons. MANDERY, supra note 5, at 27174.

94 MANDERY, supra note 5, at 275–76 (asserting that “frustration with the Supreme Court was really born out of underlying resistance to the Court’s position on race and social issues” but that “the public’s antipathy” was “expressed in the campaign to revive capital punishment” because Furman’s 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 30–31 (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


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.


OF RACE, RIGHTS, AND TAXES ON AMERICAN POLITICS 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 Court’s decision in Gregg. 101 Edward Lazarus views opposition to the Supreme Court’s civil rights cases—which would include Furman—as referenda on “the legacy of Scottsboro—on 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


102 In 1903, W.E.B. Du Bois stated that: “[The South’s] 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



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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 co- participants 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 .”).

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