Abstract

Excerpted From: Diann Rust-Tierney, Dismantling Structural Racism to End Capital Punishment, 67 Howard Law Journal 275 (Spring, 2024) (121 Footnotes) (Full Document)

Imagine the entrance to a grand old house, with six columns supporting the porch and the second-floor balcony. If we painted one of the columns green, the structural integrity of the porch and balcony would not be affected. Only removing the green column would cause the porch and balcony to sink and eventually collapse under their own weight.

The slave economy that existed from the waning eighteenth century to the end of the American Civil War was enormously profitable. It made the United States an economic leader in the world. By the beginning of the Civil War, the South had become one of the wealthiest regions of the country. The Mississippi River Valley produced more millionaires per capita than any other region. If we think of the institution of slavery as the grand old house in this wealthy country, what would be the pillars holding it up?

Judge A. Leon Higginbotham Jr. identified “Ten Precepts of American Slavery Jurisprudence” that he argues can be reduced to three: inferiority, property, and powerlessness. Judge Higginbotham's precepts were distilled from reading thousands of statutes and every antebellum slave case. His thesis was that a comprehensive framework of laws, customs, and practices had to be constructed to support and maintain an otherwise morally untenable and unworkable business model that was based on extracted labor, where people and their descendants were legally defined as property in perpetuity.

The death penalty, by its design and placement in the law, defined and enforced the core precepts of inferiority, property, and powerlessness necessary to create and maintain the institution of slavery.

Carol S. Steiker and Jordan M. Steiker write:

The explicitly race- and slave-based capital codes prevalent in the South, as well as the especially torturous modes of execution used for slave revolts and other serious crimes by blacks, not only reflected prevailing racist attitudes and institutions but also helped produce those attitudes by using the fearsome spectacle of public executions to imbue race and slave status with the utmost significance. From early colonial times through the Civil War, racial attitudes were hardened and entrenched “by mobilizing race-encoding categories of punishment: Who is whipped, who is hanged, and who is burned at stake?”

As a result, in effect if not in explicit intent, “one of the functions of the death penalty ... was to create race: to segregate the myriad social positions of the New World into hard and fast categories of white and black, free and enslaved.”

In other words, the death penalty provided explicit, palpable support for the proposition that enslaved and free Black people were inferior, no more than property, and ultimately powerless.

II. Overview

This Article describes the history of capital punishment in colonial and antebellum times. It will demonstrate that racial disparities in death sentences and executions are not significantly different from those produced by laws that defined criminal conduct and punishment based on the race of the defendant and the race and gender of the victim.

The Article will argue that because the death penalty was part of the legal infrastructure maintaining slavery and the racial hierarchy it required, death penalty abolition in the United States must be pursued within the context of the broader project of identifying and dismantling all the structures that perpetuate a racial hierarchy and inequality.

This Article is situated within legal history scholarship, connecting the death penalty's racially disparate outcomes to the legacy of slavery. Some of this scholarship was discussed compellingly in Justice Brennan's dissent in McCleskey v. Kemp, 481 U.S. 279, 344 (1987). Judge A. Leon Higginbotham Jr. and others have made an enormous contribution to our understanding of racial disparities in the administration of the death penalty today and their connection to racial disparities that were once explicitly required by law.

This Article also builds on decades of empirical research that demonstrates overwhelmingly that the so-called “modern death penalty” is administered in a racially skewed manner. This body of research includes the award-winning work of Professor David Baldus and other scholars, such as Professors Catherine M. Grosso, Barbara O'Brien, and Frank Baumgartner. This Article seeks to inform our understanding of what capital punishment in the United States is and is not, based on this body of research and scholarship. The death penalty is not a public safety response to crime. It is a tool of violence fashioned to subjugate and define categories of people as non-human--as no more than chattel that could be bought, sold, bred, and worked to enrich others. If we are to end the death penalty completely and prevent its return, we must expose and address the foundational narrative of inequality it still supports. The Article ends with global recommendations for moving our society forward.

[. . .]

Legal historians and scholars have long recognized the connection between slavery and the racially identifiable outcomes produced by the death penalty today. However, the problem is more than a failure to extricate race from consideration in capital cases. The problem is that larger social and legal context in which the death penalty operates has also failed to fully address the influence of race as well.

Advocates for ending the death penalty must broaden our focus to include working against structural racism more broadly. We must take care that, in our narrow efforts to end the death penalty, we do not inadvertently feed the beat of racial hierarchy by repeating and echoing its discriminatory underpinnings.

The payoff for taking a broader view of our work, informed by a deeper understanding of history, is that the promise of a victory that will be lasting. When we systematically replace the legal and social elements of society that deny the full humanity of all people, the death penalty will, of necessity, be abolished because it has no place in such a world.

Diann Rust-Tierney is an Adjunct Professor of Law at Georgetown University Law Center.