American capital punishment seems to be an institution in decline. Death sentences decreased from a high of over 300 per year in the middle-1990s to around a tenth that today. Executions have gone from nearly a hundred annually at the close of last century to less than a couple dozen per year now. Seven states have abolished capital punishment since 2007, others are considering it, and still others have placed moratoria on executions. Meanwhile, the death penalty remains ensnared in intensive and intractable debates over matters like the constitutionality of methodologies of death, unreliability in distinguishing guilt from innocence, arbitrary and discriminatory patterns of use, protracted death row stays, and out-of-control financial costs. Why does a seldom used sanction in such turmoil matter to contemporary criminal justice policy and leadership? What large-scale benefits could this sanction possibly promote for crime control (through deterrence and incapacitation), for cost savings, or even for retribution and victim closure?
Capital punishment has obvious relevance to the few people directly affected by it (e.g., family and friends of victims, select judges and attorneys, capital defendants, as well as death row inmates and prison staff). Beyond this, an important part of the answer to our question can be found by thinking not only about the instrumental effects of the American death penalty, but also about what it expresses – what it symbolizes and communicates regarding crime, criminalization initiatives, and social relations generally. The death penalty communicates powerful messages about violent street crime – especially individualized culpability and accountability, retribution for victims, preservation of public safety, and the place of popular sentiments in shaping outcomes. This is so not only in the 33 jurisdictions that authorize capital punishment today (31 states along with the federal government and military) but across the country; the death penalty exerts a kind of vicarious ideological impact in places that don’t authorize it. At a more subliminal level, the late modern American death penalty communicates about a sordid history that its present use reflects. It bears the mark of thousands of extra-legal lynchings and legally authorized executions of dubious due process quality carried out in a vastly disproportionate way against African Americans and the poor.
On occasion, simple statistics speak on their own. Since 1977, executions of black men convicted for killing at least one white male have been conducted with over 14 times greater frequency than executions of white men convicted of killing at least one black male. It is true that most homicides are intra-racial, and among inter-racial homicides, black-on-white murders are more frequent than white-on-black ones. But black-on-white murders are nowhere near 14 times more common, and black men (especially young ones) have far and away the highest rate of homicide victimization in the country. Perhaps even more revealing about history, of all 1,436 executions from 1977 through mid-2016, 150 involved a black man convicted of murdering a white woman, compared to 14 executions of white men who killed a black woman; it is worth keeping in mind that white women have a considerably lower homicide victimization rate than black women. Data patterns like these do not show that individual criminal justice policymakers and leaders are systematically racist or classist – a few may be, but many clearly are not. The trends do suggest, however, serious problems with the American death penalty as a social institution – as something more omnibus than individual actors who administer it.
At least since the late 1960s when the U.S. Supreme court embarked to regulate capital punishment, the modern institution has striven to differentiate itself from a racist, classist, and largely lawless past. Going on a half century later, virtually no one who studies the death penalty would agree this striving has succeeded. We maintain an institution that, on the one hand, fails to accomplish instrumental goals we set for it, and on the other, accomplishes various things we wish it wouldn’t, like reinforcing racism and classism, dragging out pain for victims’ families, and costing a great deal of tax money. It is the death penalty’s ideological symbolism which infuses it with a staying power that trumps its varied failures. Policy makers and leaders in criminal justice policy can draw a larger lesson here: practices that send ideological messages we want to have sent about justice and safety simultaneously run risk of furthering outcomes large numbers of people find objectionable, thereby diluting or even spoiling those messages and perpetuating injustice without advancing safety in any significant way.
By: Kevin I. Minor, professor, EKU School of Justice Studies
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