Abstract

Excerpted From: Akin Adepoju, Capital Punishment Unmasked: Shades of Justice in America's Grim Theater, 67 Howard Law Journal 249 (Spring, 2024) (124 Footnotes) (Full Document Requested)

At the core of America's story lies a sobering reality: laws, whether overt or masked by neutrality, have been instrumental in upholding white supremacy. The nation's history, legal frameworks, and institutions created a system of hierarchy. Slavery, the Three-Fifths Compromise in the Constitution, and the application of the death penalty are interconnected by a common thread: the devaluation of Black lives.

A prime example of a law, initially overtly racist and subsequently veiled in a façade of impartiality, is the death penalty. While proponents argue that the death penalty serves as a deterrent and retribution for heinous crimes, critics point to a glaring issue that undermines its credibility: the persistent and deeply troubling racial discrimination in its administration. Despite substantial legal and societal advancements, racial prejudice has undeniably wielded an immense influence over the death penalty throughout our history. Confronting racism necessitates a profound examination of its origins.

Virtually every American institution champions diversity--a distinct concept not to be confused with equality a core value critical to their success. Regardless of where one falls on the ideological continuum on how best to achieve equality, it is difficult to deny that diversity and inclusion are important ingredients to achieving equality. Diversity enhances educational experiences, stimulates equitable policies, and equips people to navigate our interconnected world.

From corporations to educational institutions, from government bodies to cultural organizations, the concept of diversity has become firmly etched as a core value to achieving success. However, a stark contrast emerges when we turn our attention to courthouses across the nation. In many instances, legal institutions maintain a disconcerting resemblance to their century-old counterparts in many respects. The racial makeup is similar, with predominantly white judges, white prosecutors, white defense attorneys, white jurors, and white court staff--even in communities boasting significant African American populations.

While recognizing the significance of diversity in all its dimensions, this Article will center its exploration and analysis on racial diversity. Racial diversity is important. So by concentrating on racial diversity, this Article aims to contribute to a deeper understanding of its implications, offer insights into fostering inclusivity, and provide a platform for discussions that can drive positive change in this specific dimension of diversity. This Article explores the historical context, the present state of affairs, and potential pathways to rectify the deeply rooted problem of racial bias within America's death penalty system.

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Modern prejudice is a master of subtlety, often wearing a mask of neutrality in its deceitful dance with language. While the contemporary American death penalty no longer openly discriminates based on race, its practice remains a powerful tool of racial oppression. The path to a more just and equitable legal system is multifaceted, but promoting diversity within the legal profession and judiciary is a critical step. A diverse legal system is better equipped to identify and combat implicit bias, ultimately leading to fairer legal outcomes for all.

Professor, George Mason University Antonin Scalia Law School, and University of the District of Columbia David A. Clarke School of Law; Board President, Center for Death Penalty Litigation; Branch Chief, Defender Services Office, Washington, D.C.

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Kindly be aware that this article includes racial slurs. We carefully considered whether to include the offensive language from court cases or the terms used by judges, jurors, lawyers, when referring to people of color. We understand that each repetition can cause harm, but we also recognize that masking the stark reality of racial slurs has contributed to concealing societal prejudices. As a result, we have decided to directly cite these slurs as they were originally used, recognizing that this approach is not without its flaws.