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January 01, 2017

The Racial Origins of the Supreme Court’s Death Penalty Oversight

by Carol S. Steiker, Jordan M. Steiker

Editor’s Note: In their book Courting Death: The Supreme Court and Capital Punishment (Belknap Press of Harvard University Press 2016), Professors Carol Steiker and Jordan Steiker chronicle and evaluate the Supreme Court’s constitutional regulation of capital pun­ishment, which began in earnest with the Court’s short-lived constitutional abolition in Furman v. Georgia (1972), and the death penalty’s revival four years later in Gregg v. Georgia (1976) and its accompanying cases. The book argues that the Court’s initial constitutional attention to capital cases in the 1920s and 1930s, most notably in the case of the “Scottsboro Boys,” arose from concerns about Southern injustices in cases of alleged black-on-white vio­lence. Similar concerns led the NAACP Legal Defense Fund to undertake a campaign of constitutional litigation in the 1960s, ultimately producing Furman and Gregg. The book explores the disjunction between the Court’s motivating concerns about racial justice and the “color­blind” doctrines that the Court ultimately developed under the Eighth Amendment. The Steikers forecast an eventual constitutional abolition, but they predict that such a deci­sion, like what has come before, will not be primarily based on the racial injustices that continue to this day in capital cases. In the following excerpt from Courting Death, which has been edited to conform to Human Rights magazine’s style and allotted space, the Steikers describe the South’s distinctive relationship to the practice of capital punish­ment, which they contend provided the primary impetus for the Court’s constitutional intervention.

The history of the American death penalty has been one of broad-based change over time, but it has also been a history of profound regional division that is still clearly visible in death penalty practices today. Observers often refer to the swath of currently active death penalty states in the American South as the “death belt,” a play on the term “Bible Belt” that is used to describe essentially the same region. The distinctive Southern embrace of capital punishment is in large part a product of the South’s historical practice of chattel slavery and of slavery’s enduring racial legacy long after the end of the Civil War. One of the strongest predictors of a state’s pro­pensity to conduct executions today is its history of lynch mob activity starting more than a century ago. Given this connection, it is no surprise that the current map of active death penalty states is predominantly a map of the former Confederacy; not a single state from that region is among the 29 states that either have abolished capital punishment or have conducted no more than three executions since 1976. It is the South’s distinctive history with regard to the death penalty that eventually prompted the Supreme Court’s consti­tutional scrutiny of capital punishment.

The South’s disproportionate use of capital punish­ment began early in American history. It conducted the most executions of any region during every his­torical period except for the 1600s, the first century of European settlement—when colonial populations were small, black inhabitants few, and executions of any kind rare. After the end of the seventeenth century, the South consistently outstripped every other region in total number of executions, the majority of which were of black people. Although no less a figure than Virginia’s Thomas Jefferson was an early questioner of the practice of capital punish­ment, his position was exceedingly rare among Southern leaders. From the colonial era to the present day, Southern states have resisted both reform and abolition of the death penalty to a degree and with a con­sistency unique in the United States.

The large increase in execu­tions, especially of blacks, in the South during the eighteenth cen­tury was the direct result of the large influx of African slaves to that region. As the South’s slave labor economy grew, so did the demand by slave owners for state assis­tance in disciplining the growing enslaved population, to promote economic productivity and to pro­tect the increasingly outnumbered white population from much-feared slave violence or revolt. The extent to which capital punishment for slaves was perceived as a public good is demonstrated by the pro­vision of state compensation to the owners of executed slaves, in the same way that property own­ers today are compensated when their land is taken by the state for a public use such as a highway. For slaves, the threat of incarcera­tion was not likely to serve as much of a deterrent. Hence, Southern states perceived a greater need than other states for maintaining corpo­ral and capital punishment, often in extreme forms. The use of torturous execution methods such as burning at the stake, and the public dis­play of the corpses or body parts of those executed for slave revolt, were clearly meant as dire warnings to slaves about the harsh consequences of insurrection or violence against slave owners.

The South’s distinctive history of slavery, lynch mob violence, and racial division produced a dis­tinctive relationship to the waves of death penalty reform that moved across the country during the nineteenth century and after. The substantial narrowing of the ambit of the death penalty down to murder and treason, which was complete in the North by the time of the Civil War, never fully took hold in the South. While many Southern states did narrow their capital statutes in the antebellum period, they did not narrow them as radically as Northern states, and the narrowing that occurred applied only to whites. This dif­ferential treatment of whites and blacks reflected the widespread practice throughout the South prior to the Civil War of designat­ing many offenses as capital on the basis of slave status and on the basis of race, regardless of slave sta­tus. In antebellum Virginia, “free African Americans (but not whites) could get the death penalty for rape, attempted rape, kidnapping a woman, and aggravated assault— all provided the victim was white; slaves in Virginia were eligible for death for commission of a mind-boggling sixty-six crimes.” Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past, in Death Penalty Stories191 (John H. Blume & Jordan M. Steiker eds., 2009). At the same time, whites in Virginia could face death for just four crimes. Although Southern states did not narrow their capital statutes, even for whites, as much as the North, actual execu­tions of whites for crimes other than murder became increasingly rare.

The elimination of capital pun­ishment for whites other than for the crime of murder was achieved in the South less by statutory nar­rowing than by discretion in the application of broad capital stat­utes. This discretion allowed Southern juries to mete out different punishments to black and white defendants in capital cases. The first states in the country to jettison mandatory capital statutes in favor of jury discretion were Tennessee and Alabama in 1841, followed by Louisiana in 1846—states that were slow to adopt any other restrictions on their death penalty practices. Scholars have speculated that Southern states were at the fore­front of this—and only this—wave of death penalty reform because of the South’s tolerance, indeed enthu­siasm, for differential leniency for whites and blacks in capital cases.

The narrowing of the ambit of the death penalty often led to leg­islative initiatives for wholesale abolition of capital punishment in the North, but never in the South. From the 1830s to the 1850s, lawmakers in New York, Massachu­setts, Pennsylvania, Connecticut, Maine, New Hampshire, Vermont, New Jersey, Ohio, Illinois, and Indi­ana considered serious calls for abolition, though no wholesale abolition bills succeeded in these states. Michigan, Rhode Island, and Wisconsin became the first three American states to abolish the death penalty in the years between 1846 and 1853. Meanwhile, abolition was inconceivable in the antebel­lum South because of the widely held belief that capital punishment was needed to maintain the slave economy and society. The death penalty abolition movement’s fail­ure even to develop a toehold in the South also reflected the overlap in people and ideology between the death penalty abolition and slav­ery abolition movements. The two movements may have mutually rein­forced each other in the North, but in the South, their linkage led them to fail together.

The split between the North and South means that the United States is in both the vanguard and the rearguard of worldwide death penalty abolition. The state of Michigan has the distinction of being the first government in the English-speaking world to abolish capital punishment for murder and lesser crimes. Michigan has main­tained its 1846 abolitionist stance to the present day; indeed, it amended its constitution in 1962 to prohibit the death penalty, thus preclud­ing legislative reinstatement. At the same time, the United States is also the only Western democracy that still retains the death penalty; it is one of the top five executioners in the world today, along with China, Iran, Saudi Arabia, and Iraq. This schizophrenic posture is a direct result of regional division on the issue, which was born of differing attitudes regarding the race-based practice of chattel slavery.

Even after the abolition of slav­ery, the death penalty abolition movement failed to gain any trac­tion in the South. In the aftermath of the Civil War, capital punish­ment offered “an alternative form . . . of racial subjugation,” nec­essary in the eyes of some white Southerners “to restrain a primi­tive, animalistic black population.” Stuart Banner, The Death Pen­alty: An American History 228 (2002). White Southerners feared violent revenge and property crimes by the impoverished freed popu­lation, but above all, they seemed to fear sexual aggression by black men against white women. Histo­rian William Carrigan observed: “Especially in the South, the late nineteenth century was beset with white paranoia on the topic [of the rape of white women by black men].” William D. Carrigan, The Making of aLynching Cul­ture: Violence and Vigilantism in Central Texas, 1836–1916, at 153 (2004). These attitudes not only supported the use of capital punish­ment but also prompted rampant private violence against the newly freed black population, resulting in what Carrigan called a “reign of terror” and an “orgy of racial vio­lence” in the postbellum South. Id. at 112–13. Between 1880 and 1930, more than 3,000 lynchings of blacks were recorded in Southern states, where the vast majority of such events took place. The practice of lynching constituted a form of unofficial capital punishment that in its heyday was even more common than the official kind. The preva­lence of lynching at the turn of the century was illustrated by the inge­nious argument of a defense lawyer to the jury in a case of alleged inter­racial attempted rape in Louisiana in 1907; his client must be innocent, he said, because otherwise he surely would already have been lynched!

But lynchings were not merely additional, informal executions. Rather, the practice of lynching helped to insulate the institution of capital punishment from last­ing abolition. The Progressive Era saw one of the most active periods of death penalty repeal and rein­statement in America; 10 states abolished capital punishment between 1897 and 1917, though eight of them reinstated the death penalty by the end of the 1930s, some within only a few years of abolition. During this period of flux, one of the primary consider­ations in favor of retention (and of reinstatement after abolition) was the need to maintain capital pun­ishment to reduce the incidence of lynch mob violence. With the excep­tion of Tennessee, all of the states that abolished the death penalty during this era were in the West or Midwest, rather than the heartland of lynchings in the South. Nonethe­less, in these states, lynching was the most common event triggering rein­statement of the death penalty after abolition, occurring in each of the four states with the shortest periods of death penalty abolition during the Progressive Era. The need to maintain the death penalty to deter lynching was a mainstay in debates about abolition and reinstatement during this period. As one Tennes­see politician argued in opposition to abolition, “if this bill should become law it would be almost impossible to suppress mobs in their efforts to punish colored criminals.” John F. Galliher et al., Abolition and Reinstatement of Capital Punish­ment during the Progressive Era and Early 20th Century, 83 J. Crim. L. & Criminology 538, 574 (1992).

The most striking fact about Tennessee’s abolition of capital punishment (aside from its brev­ity, as reinstatement occurred only four years later) is that, despite the common listing of Tennessee among the 10 Progressive Era abo­litionist states, Tennessee’s bill did not actually abolish the death pen­alty. Rather, Tennessee’s measure abolished it only for most forms of murder. The death penalty was retained for murder committed by a prisoner serving a life sentence (rare) and for the crime of rape (not so rare), which was in prac­tice punished by death only when the perpetrator was black. Tennes­see’s retention for rape was unique among the rest of the Progressive Era abolition bills. It reflected the widespread Southern belief that lynch mob violence simply could not be suppressed in cases of black men accused of the rape of white women, especially if the law refused to treat such outrages as capital crimes.

Concerns about lynch mob vio­lence also played a role in delaying the move from public to private executions in the South. In part, Southern states were slower to abandon public executions because many of their citizens, white and black, wanted to attend such ritu­als. While several states had banned public executions by the end of the nineteenth century, public opinion lagged behind official action. In the words of one Kentucky citizen in the late nineteenth century, viewing a public execution was “every tax-paying citizen’s right.” Michael A. Trotti, The Scaffold’s Revival: Race and Public Execution in the South, 45 J. Soc. Hist. 195, 203 (2011). The popularity of public executions in the South, according to law pro­fessor Franklin Zimring, reflected the greater embrace of “vigilante values” by which citizens “identify more closely with the punishment process [and] think of punishments as a community activity rather than the conduct of a governmen­tal entity separate from community processes.” Franklin E. Zimring, The Contradictionsof Ameri­can Capital Punishment 99 (2003). Although Southern blacks likely did not view executions as the authentic products of their own communities, black crowds nonetheless gathered at executions to hear religious lead­ers speak and to sing and pray with the condemned. Southern sheriffs often accommodated local crowds by only partially enclosing the scaf­fold or by allowing hundreds into the putatively private jail yard. These accommodations reflected not merely official indulgence of a popular pastime but also fear of the violent potential of a thwarted crowd.

Such fears were especially pow­erful and well-founded with regard to the execution of black men con­victed of raping white women. Never was the (white) crowd’s desire to see lethal justice done stronger than in cases involving black rapists. In two Southern states, legislatures brought back public executions in a hurried response to the threat of lynchings. The day after the Arkan­sas legislature hastily reauthorized public executions for rapists in 1901, a crowd of thousands assem­bled to see a black man hanged. Two decades later, Kentucky also brought back public hanging for rape after a lynch mob sparked a riot in which five died and 17 were wounded in the mob’s unsuccess­ful attempt to snatch a black rapist from custody. Indeed, when Ken­tucky executed Rainey Bethea in 1936—the last public execution in the United States—Bethea was charged only with rape (despite hav­ing also committed murder) because public executions were authorized only for the crime of rape. The threat of mob violence, targeted especially at black men accused or convicted of interracial rape, was so common in the South during the era of lynchings that it could seem foolhardy, sentimental, or sim­ply counterproductive to restrict the more vulnerable, but morally and socially more benign, practice of public execution. In a world in which state-imposed death was not the worst or even the most likely fate that could befall a convicted black rapist, public executions were deployed by state officials to under­mine the power of lynch mobs.

Finally, concerns about exces­sive pain or bodily mutilation, which played a prominent role in motivating the successive waves of experimentation with new, sup­posedly more humane execution methods, found more muted expres­sion in the South than in other parts of the country. When Kentucky brought back public hangings for rape in 1920, it did so despite the fact that the state had substituted the electric chair for the gallows 10 years previously. Humanitar­ian concerns took a back seat to the public’s demand for public vengeance. Here, too, the South’s distinctive history of lynchings plays an explanatory role. In the extrajudicial executions carried out by lynch mobs, it was common and intended for victims to suf­fer intense physical pain as well as fear. The lynching ritual (sometimes called “lynchcraft”) often involved long-abandoned punishments such as branding, eye gouging, and the cutting off of ears. Lynching vic­tims also were frequently castrated, burned, or otherwise mutilated, and their clothing or even body parts claimed as souvenirs by spectators. In short, the lynching victim’s expe­rience of extreme pain and bodily mutilation was considered a fea­ture, not a bug, of the practice. It is unsurprising that concerns about the suffering of the condemned dur­ing legal executions generated less anxiety among Southerners than among those less accustomed to the graphic violence of lynchcraft.

The South’s distinctive history— especially its history of slavery and lynch mob violence—created a dis­tinctive relationship to the death penalty and to its possible abolition or reform. The South’s more retro­grade death penalty practices would eventually provide the impetus for the Supreme Court’s first forays into constitutional regulation of capital punishment in the 1920s and 1930s and for the systematic attack on capital punishment as an issue of racial justice launched by civil rights litigators in the 1960s and 1970s. But for the dramatic regional divide on the death penalty, the Supreme Court might never have stepped in at all. 


Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School. Jordan M. Steiker is the Judge Robert M. Parker Endowed Chair in Law at the University of Texas School of Law.