Undoing Past Wrongs: Chipping Away at Capital Punishment

By Hira Baig
Associate Editor, Volume 23

The vast majority of countries, 140 to be exact, consider the death penalty cruel and unusual punishment.[1]  The current constitution of Germany, for example, forbids use of capital punishment.[2] Lawyer and activist Bryan Stevenson comments on this policy choice by suggesting there is a connection between Germany’s consciousness of its history and its refusal to use the death penalty.[3] It would be harrowing, after all, for the German government to have a criminal punishment that facilitates the state-sanctioned killing of people after the Holocaust.

America, on the other hand, turns a blind eye to its history. Celebrating civil rights leaders and electing a black president does not rid this country of its past sins—especially if those sins are manifesting today in different form.

The grave inequality between the races was embedded into our Constitution and our laws. While the Constitution created a form of government for “the people,” it was used for over a century to uphold slavery. Once formal slavery was abolished by the Thirteenth Amendment, the Constitution was used to justify discriminatory treatment, Jim Crow, and today, it is used to embolden our system of mass incarceration.

The Constitution also upholds use of the death penalty.[4] The killing of mostly black men is not a violation of the Eighth Amendment, which ought to protect people from cruel and unusual punishment.[5] And in southern states, black defendants are 22 times more likely to get the death penalty if the alleged victim is white.[6]

In my home-state of Texas, juries can still sentence mentally ill offenders to death. Texas has one of the busiest death rows in the country, and recently, a lawmaker filed a bill that might curtail use of this punishment.[7] This bill limits the maximum punishment for mentally ill people to life in prison without parole. Mitigating use of the death penalty ought to be considered a valiant effort. After all, Texas uses the death penalty more than any other state.[8]

The efficacy of this bill remains, however, worth questioning. Bills like this necessitate probing: for those of us that would rather live in an America without capital punishment, is this bill a step in the right direction? Or are these sorts of efforts distracting—do they advance our naive beliefs that society is changing for the better, meanwhile standing in as a disguise for a problem that is far more difficult to solve?

The writings of Melynda Price are helpful when thinking about these questions.[9] Price is concerned with the usefulness of the Batson hearings as a method of curtailing racism in jury selection. Batson hearings allow a party to challenge the exclusion of jurors based solely on their race.

She argues that these hearings serve a ritualistic function and ultimately aren’t a check on prosecutorial discretion that has kept black people from serving on juries.[10] Though the Batson Hearings are meant to dismantle this problem, “they have instead erected a process that masks the state’s continuing discrimination in the use of peremptory challenges.”[11]

Going through the motions of the Batson hearings, Price argues, “is sufficient to give the proceedings the imprimatur of fairness while legitimating the removal of African American jurors.”[12] Similarly, the Texas Bill might seem like a way to reduce use of the death penalty, but it could also perpetuate the veneer that progress has been made, sanitizing and normalizing the massive amounts of direct and structural violence inflicted by our government.

Price forces us to question whether the fight against the death penalty going to be won in our legislatures.

Patricia Williams offers some guidance here, and comments on the slow and incremental process through which rights were shaped by white men and “parceled out to blacks in pieces, ordained in small favors as random insulting gratuities.”[13] If rights are only going to be afforded to black Americans on white America’s terms, the gradual change to the justice system is not going to repair this country’s race problem.

Williams also reminds readers about collective responsibility needed to absolve America of its sins.[14] As such, though chipping away at unjust laws might ultimately build a better world, it can’t be done without all Americans working together to ensure dignity for all. This fight will remain an uphill battle because the great majority of our policy makers have yet to acknowledge the systematic discrimination black people are subjected to. So as we look to policy solutions for the racial inequity in this country, we are forced to wonder whether a broken system can be fixed.

So as to not reproduce the same violence as those before us, we ought to remain cognizant of our propensity to bolster the myth that the times of egregious injustice are behind us. As a native Houstonian, I aim to remind myself every day that history is repeating itself and, often, it’s happening in my own backyard.

[1] Death penalty 2015: Facts and figure, Amnesty International, https://www.amnesty.org/en/latest/news/2016/04/death-penalty-2015-facts-and-figures/.

[2] Charles Lane, The Paradoxes of a Death Penalty Stance, Washington Post (June 4, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/06/03/AR2005060301450.html.

[3] Ben Lillie, All of our survival is tied to the survival of everyone: Bryan Stevenson at TED2012, Ted Blog, https://blog.ted.com/all-of-our-survival-is-tied-to-the-survival-of-everyone-bryan-stevenson-at-ted2012/.

[4] Furman v. Georgia, 408 U.S. 238, (1972);  Gregg v. Georgia, 428 U.S. 153, (1976); Coker v. Georgia, 433 U.S. 584, (1977);  Kennedy v. Louisiana, 554 U.S. 407, (2008);  Kennedy v. Louisiana, 554 U.S. 407, (2008).

[5] Kat Chow, Who’s Waiting on Death Row?, NPR (May 3, 2014, 5:21 p.m.), https://www.npr.org/sections/codeswitch/2014/05/03/308370643/whos-waiting-on-death-row.

[6] Bryan Stevenson, We need to talk about an injustice, Ted, https://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice/transcript?language=en.

[7] Jolie McCullough, Bill to bar death penalty for mentally ill faces uphill battle, The Texas Tribune (March 8, 2017, 12:00 p.m.), https://www.texastribune.org/2017/03/08/texas-bill-would-eliminate-death-penalty-mentally-ill/.

[8] Ned Walpin, Why is Texas #1 in Executions?, PBS, https://www.pbs.org/wgbh/pages/frontline/shows/execution/readings/texas.html.

[9] Melynda J. Price, Performing Discretion or Performing Discrimination: An Analysis of Race and Ritual in Batson Decisions in Capital Jury Selection, 15 Mich. J. Race & L. 57 (2009).

[10] Id.

[11] Id.

[12] Id.

[13] Patricia Williams, Alchemy of Race and Rights: Diary of a Law Professor, 164, (1992).

[14] Id.