Abstract

Excerpted From: Luca Azzariti Crousillat, The Badges and Incidents of Capital Punishment, 103 Texas Law Review 459 (December, 2024) (225 Footnotes) (Full Document)

The Bottom, once a thriving neighborhood with its own unique culture and traditions, becomes a moving symbol of the African American experience. In Sula, Toni Morrison imagines how, as the landscape is razed to make way for a golf course, the bulldozing of the Bottom becomes not only the physical displacement of a community but also the systematic erasure of Black lives and narratives--an ongoing legacy of slavery. The footbridge, already gone, serves as a tender metaphor for the disappearance of pathways to justice and equality, reflecting the systemic barriers faced by marginalized communities powerless against a flawed legal system, and the pervasive inequities that hinder access to fundamental rights and protections. But while the laughter of those in the Bottom, masking underlying pain, speaks to the resilience of individuals facing systemic oppression, the reality of adult pain persists--an enduring trauma inflicted upon future generations.

Capital punishment is a stark embodiment of the oppression depicted in Morrison's fictional narrative. It's a discriminatory mechanism applied disproportionately against Black Americans, thereby mirroring the struggle of exploitation and dehumanization that began with slavery. Capital punishment perpetuates a cycle undermining the hard-fought gains of civil rights movements, just as destroying the Bottom would erase history. Reading Morrison's prose, the link between historical legacies and contemporary struggles for justice invites reflection on the enduring significance of the past in shaping present-day realities.

I. The Story Thus Far ...

Before delving into the nexus of past legacies and modern forms of slavery, it's important to consider how literature has explored the constitutionality of capital punishment. Noteworthy to the discussion, and contrary to the focus of this Note, most legal scholarship examining the constitutionality of capital punishment has centered on the Eighth Amendment's prohibition of cruel and unusual punishment. This Note, however, diverges from that well-trodden path by exploring the potential of the Thirteenth Amendment, with its focus on abolishing slavery and its vestiges, to challenge the constitutionality of the death penalty.

Similarly, in recent years, legal scholarship has increasingly explored the intersection of abolitionism and the Thirteenth Amendment. While scholars like Michelle Alexander have highlighted the Amendment's potential to challenge not only chattel slavery but also its enduring vestiges, such as forced labor, racial discrimination, and the criminalization of poverty, much of this scholarship has focused on the Amendment's application to issues like prison labor and criminal statutes, often overlooking its potential implications for capital punishment. And although some scholars have touched upon the connection between the death penalty and the legacy of slavery, a comprehensive analysis of how capital punishment perpetuates the “badges and incidents” of slavery remains largely absent from the literature.

For example, Bailey Barnes briefly discusses the possibility of using the Thirteenth Amendment as a basis for challenging the death penalty. He argues that the death penalty's racially discriminatory application and inherent cruelty may violate the Thirteenth Amendment's prohibition against slavery and involuntary servitude. And yet, this Note goes beyond exploring the potential of the Thirteenth Amendment as a basis for challenging the death penalty. Instead, this Note proposes a structured scrutiny test, framing capital punishment as a perpetuation of slavery's ““badges and incidents.” This Note argues that the Thirteenth Amendment was intended not only to abolish slavery but also to eradicate all its institutions, making interpretation of “badges and incidents” central to this paper's argument.

Another scholar, Nikayla Johnson, focuses instead on the Supreme Court's jurisprudence on capital punishment, as she highlights the racial bias inherent in the system. She argues that capital punishment, as applied to Black defendants, is a vestige of slavery and should be abolished under the Thirteenth Amendment. Through a historical analysis of the Supreme Court's capital punishment jurisprudence, Johnson highlights the Court's inconsistent reasoning and acceptance of racial bias in the criminal legal system. She also discusses the legislative responses to the Supreme Court's decision in McCleskey v. Kemp, lamenting that statistical evidence of racial bias in the death penalty was not enough to prove an Eighth Amendment violation. Johnson concludes by arguing that the death penalty should be abolished under the Thirteenth Amendment because it's a badge and incident of slavery.

But while Johnson's article and this Note both argue the death penalty is unconstitutional under the Thirteenth Amendment, they differ in their approach and scope. Johnson focuses primarily on the historical context and Supreme Court jurisprudence related to capital punishment. This Note delves deeper into the historical context of Thirteenth Amendment jurisprudence and capital punishment, while also examining the legal interpretation of the “badges and incidents” language, proposing a three-pronged test to identify such vestiges in the context of capital punishment. Further, this Note favors a more intersectional approach to the application of the death penalty, drawing on literary references and social theories to provide a more nuanced understanding of the issue. It thus strives to offer a more comprehensive approach to challenging the constitutionality of the death penalty.

Likewise, the “badges and incidents” language has been explored by scholars like William Carter. Carter contends that the judiciary has the power to define and offer redress for these badges and incidents of slavery, even in the absence of congressional action. He proposes a two-pronged test to identify such vestiges, focusing on the connection between the aggrieved class and the institution of chattel slavery, as well as the connection between the injury and the institution. Carter emphasizes the need for an ““evolutionary” interpretation of the Thirteenth Amendment, recognizing its potential to address contemporary forms of racial discrimination and inequality.

This Note builds upon Carter's analysis of the “badges and incidents” language but distinguishes itself by focusing specifically on capital punishment as a contemporary manifestation of these vestiges of slavery. It proposes a more nuanced, three-pronged test tailored to the context of capital punishment. This Note also delves into the historical context of slavery and lynching, while discussing the evolution of capital punishment. In doing so, it emphasizes the need for a comprehensive understanding of how these historical legacies continue to shape contemporary issues of racial injustice in the criminal legal system.

Lastly, a growing body of legal scholarship has examined the concept of mercy within the criminal legal system, particularly in the context of policing and corrections. Scholars such as Rachel Barkow, Jeffrey Bellin, and Avlana Eisenberg have argued for the importance of mercy as a guiding principle in these contexts, emphasizing the need for leniency, compassion, and a recognition of shared humanity between law enforcement officials and the community. However, this scholarship has focused primarily on mercy as a tool for judges, prosecutors, and law enforcement officials to use within the system, with limited attention given to its potential role in bringing direct challenges to the institution of capital punishment. This Note seeks to bridge this gap by proposing that capital punishment is unconstitutional under the Thirteenth Amendment. And, by integrating insights from both the abolitionist and historical approaches to criminal justice reform, it offers a novel and comprehensive framework for challenging the constitutionality of capital punishment.

This Note will explore the relationship between capital punishment and the Thirteenth Amendment, focusing on racially motivated sentencing practices and the enduring legacy of slavery in America's criminal legal system. Part II begins by examining the legislative history and interpretations of the Thirteenth Amendment, exploring its original purpose--to abolish slavery and all forms of racial oppression--to the subsequent narrowing of its scope, which has, in turn, limited its ability to address racially discriminatory practices. Part III addresses the historical roots of capital punishment, tracing its application from the colonial period through its use as a mechanism for controlling Black people post-emancipation. Part III also examines how practices such as lynching and racially motivated sentencing were transformed into the modern death penalty, which has disproportionately impacted Black people.

Part IV aims to clarify the meaning of “badges and incidents” of slavery by following its origins in both legal and social contexts. Here, the Note establishes a comprehensive understanding of how “badges” represent the enduring stigma of inferiority attached to Black people, while “incidents” include practices and laws tied to slavery.

Part V applies the “badges and incidents” test to capital punishment, arguing that it functions as an institution rooted in racial subjugation. Reframing Furman v. Georgia, this Part shows how capital punishment perpetuates racial hierarchy and serves as both a “badge” and “incident” of slavery. Finally, Part VI discusses the specific counterarguments detractors may use against the Thirteenth Amendment's application in this context, including the potential impact on the criminal legal system as a whole; the limitations posed by recent textualist interpretations of the Constitution; and the Punishment Clause and its implications for modern incarceration practices.

[. . .]

So ends Sula, a novel that compels readers to look beneath the surface and challenge societal structures that marginalize identities, to dismantle false dichotomies and reveal how language can be wielded as a tool of oppression. In doing so, Morrison upends traditional hierarchies, suggesting that “when God looks down, it's the bottom .... [T]he bottom of heaven--best land there is.” Morrison's portrayal of the Bottom as the “best land,” despite its imposed inferiority, serves as a profound call to recognize and elevate lives and narratives too often marginalized.

In the same spirit, this Note reclaims the Thirteenth Amendment as an enduring and active force, not merely a historical milestone of emancipation; it's instead a dynamic tool for dismantling entrenched systems of oppression, such as capital punishment.

Thus, let this Note serve as a reflection both on the profound influence of legal institutions over the lives they govern and our responsibility to ensure that influence is wielded with care. Like literature, it bears witness to the ruin wrought by hate, the salvation found in compassion, and people's solemn duty to heed the voices of the past. In this way, both Sula and this Note reject complacency in the presence of systemic inequities, insisting instead on a more expansive and courageous vision of justice.

The Thirteenth Amendment has the capacity to address the “badges and incidents” of slavery in capital punishment. Applying this Note's three-pronged framework to Furman revealed how capital punishment (1) entrenches institutionalized discrimination, (2) perpetuates cultural trauma, and (3) erects systemic barriers to the full realization of equal citizenship. Taken together, the prongs illuminate the death penalty's role as a modern manifestation of exploitation and dehumanization--precisely the kind of injustice the Thirteenth Amendment was intended to eradicate.

Opposition to the death penalty doesn't stem from an idealized view of human nature; rather, the practice's abolition is crucial in the quest to mend a society that has long been fractured. The death penalty, rooted in the foundation of the Thirteenth Amendment, is based on the belief that continuously making excuses eventually leads to the normalization of a flawed moral conscience. And as we grapple with a tumultuous world, we cannot seek institutions that treat some with the care of a convalescent and not others. The chains that tie capital punishment to slavery are iron-forged; any attempt at reform or reenactment fails to grant true liberation from either.

Associate Editor, Volume 103, Texas Law Review; J.D. Candidate, Class of 2025, The University of Texas School of Law.