Excerpted From: Charles J. Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 100 Oregon Law Review 437 (2022) (105 Footnotes) (Full Document)


CharlesOgletreeJrNearly 120 years ago, Frederick Douglass, the former slave and great African American leader, described the American criminal justice system as follows: “Justice is often painted with bandaged eyes. She is described in forensic eloquence, as utterly blind to wealth or poverty, high or low, white or black, but a mask of iron, however thick, could never blind American justice, when a black man happens to be on trial.” Sadly, little has changed in the century and a half since Douglass had cause to condemn the state of the justice system in America. Nowhere is this more true than in the application of the “ultimate punishment”--the punishment of death.

After September 11th, America's attitudes about crime and punishment shifted dramatically. Americans, without regard to race, class, or religion, were all shocked by the tragic circumstances of the terrorist attack, and have not been reluctant to seek vengeance. The response in the African American community has been particularly surprising, given the history of racial discrimination in America. As I discuss the intersection of race and criminal justice, specifically in the context of capital punishment, it is critical to reveal some facts that are frequently ignored in this country today. African Americans are, by and large, conservative. They are among our nation's most patriotic citizens. They are prepared to sacrifice their own liberty by supporting governmental efforts to protect their security. Even though discriminatory treatment by law enforcement against African Americans is well documented, a recent survey indicates that an overwhelming majority of African Americans support the racial profiling of Muslims and Arab-Americans as a result of September 11th.

Like the entire criminal justice system, the administration of the death penalty in America places a disproportionate burden on African Americans. The focus of my comments will be on race and capital punishment. Beyond my concerns about race, the death penalty faces challenges from a number of other quarters as well. Among the most recent developments:

• On June 20, 2002, the Supreme Court decided Atkins v. Virginia, holding that it is unconstitutional to execute the mentally retarded. Writing for the court, Justice Stevens followed previous decisions articulating how the Eighth Amendment's prohibition on cruel and unusual punishment is to be applied. The Court noted that prohibited forms of punishment are not fixed, but rather vary according to “evolving standards of decency that mark the progress of a maturing society.” When the Supreme Court upheld executions of the mentally retarded thirteen years ago in Penry v. Lynaugh, Justice Sandra Day O'Connor's reasoning for the majority was based on a determination that there was no national consensus against the practice--that is, executing the mentally retarded did not violate Americans' notions of decency at the time. Since that case was decided in 1989, the number of death penalty states barring executions of the retarded has grown from two to eighteen, such that eighteen of thirty-eight death penalty states--and thirty of fifty states total--bar executions of the mentally retarded. In Atkins, Justice O'Connor was again in the majority, but this time holding that “evolving standards of decency” now prohibit executing the mentally retarded.

• Further evidence of the shift in attitude came in late February 2002, when the Georgia Parole Board commuted the death sentence of a mentally ill defendant to life in prison. We will watch carefully Supreme Court cases in the near future since we can see that even staunch supporters of capital punishment, like Justice O'Connor, are noticing the public mood shifting away from the death penalty.

• In addition, the Supreme Court issued a stay of execution on February 15, 2002, to Thomas Miller-El, an African American death row inmate in Texas who claims that prosecutors deliberately kept African Americans off the jury during his murder trial. Miller-El's case could provide some much-needed clarity to the Supreme Court's jurisprudence on racial discrimination in jury selection, and, as I will discuss shortly, could also provide one step toward reducing the disparities in sentencing rates of people of color sitting on death row.

• The Supreme Court also recently found unconstitutional state death penalty laws that allow the judge, rather than the jury, to decide whether the death penalty will be imposed. This case, Ring v. Arizona, implicates capital punishment laws in nine states, calling into question up to 800 death sentences.

• More recently, a federal district court judge in New York struck down the Federal Death Penalty Act as unconstitutional because it “deprived innocent people of a significant opportunity to prove their innocence ... [and] creates an undue risk of executing innocent people.” On September 24, 2002, a federal district judge in Vermont overturned a death sentence based on a finding that the Federal Death Penalty Act determines eligibility for imposition of the death penalty in a manner inconsistent with Sixth Amendment and Due Process rights. The court also noted that “[c]apital punishment is under siege.”

• And finally, Professor James Liebman of Columbia Law School released the second part of his comprehensive study of error rates in capital sentencing in early 2002. The initial findings from two years ago showed an error rate in capital sentencing of 68%--that is, more than two out of every three death sentences were overturned due to “serious error.” Further study has shown that the states that use the death penalty most often have error rates that exceed the national average, and that the occurrence of capital sentencing error is higher in states that have a higher proportion of African Americans in the population.

In addition to issues regarding who should be eligible for execution, who makes that decision, and how to guarantee accuracy and avoid error, there is a fundamental issue regarding the role that race has played in the death penalty in America. I will discuss a number of racial elements of the application of capital punishment, and I will specifically mention the impact of the death penalty on black defendants, black victims, and black communities. In the context of race, I will note the connection between the current system of capital punishment and the historical use of extra-judicial lynchings against blacks during the Jim Crow era. Based on this analysis I will then raise some questions regarding the best strategies for abolitionists who want to address the racially disparate impact of the death penalty.

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This discussion of the current state of the system of capital punishment in America leads to an obvious question: Now what? What strategies can we pursue to move toward the possible objectives identified in the title of this conference--Abolition, Moratorium, or Reform? And as an abolitionist, I must ask as well: How do we choose which of these objectives to pursue most vigorously?

Professors Carol Steiker and Jordan Steiker have argued that the history of constitutional regulation of the death penalty since the Gregg v. Georgia decision in 1976 has focused almost entirely on making incremental refinements to procedural aspects of the capital sentencing process. If we think of opposition to the death penalty as having been effective mostly along the lines of incremental procedural fixes, it does not take much of a stretch to see that the current system of capital punishment is really in continuity with the American history of extra-legal violence and lynching--it is just more procedurally protected and has the minor additional virtue of being legal.

This point raises important issues of strategy for those who oppose the death penalty. As an abolitionist, I feel that we must constantly be asking what the likely outcome will be from any arguments we raise against the death penalty. Most arguments of unconstitutionality could be addressed in ways that actually strengthen, or further entrench, the system of capital punishment in this country. As one commentator recently noted: “[B]y focusing on flaws in the operation of the death penalty, opponents run the risk of surrendering the moral argument. They might also find themselves inadvertently helping to repair a system they would rather see eliminated,” ending up with a “modernized, sanitized death penalty.”

For example, the issue of innocence and DNA testing has been much in the news lately. Two years ago, Illinois Governor George Ryan imposed an indefinite moratorium on executions in his state, following the exoneration of thirteen prisoners who had been incorrectly sent to death row. And the recent book by Barry Scheck, Peter Neufeld, and Jim Dwyer--Actual Innocence--conducted an extensive analysis of the risks of executing innocent defendants and suggested that there is some evidence that we have already executed defendants who were wrongly convicted. The risk of executing the innocent can be a powerful argument for the abolition of the death penalty, but it can also be used by retentionists to strengthen their position as well. Say that the resources are made available to deploy DNA testing in every capital case, and the identity of the defendant is positively identified each time--concern about innocence would no longer be a valid objection to the death penalty. As one author argued recently:

DNA evidence will in fact lead to greater support for the death penalty in the long run .... While many people in this country currently may be concerned by the potential for mistakes in determining the guilt of a defendant, once they are convinced that there is little likelihood of mistake, the majority will continue to support the death penalty.

As another example, a number of recent legal challenges to the system of capital punishment in America have focused on the “death row phenomenon”-- the claim that extensive incarceration under the conditions on death row causes such psychological trauma as to constitute cruel and unusual punishment in violation of the Eighth Amendment. A number of abolitionists have argued that the procedural requirements of the administration of the death penalty in America result in so many levels of direct and collateral review that all condemned prisoners face the possibility of an indeterminate and inordinately long stay on death row. Indeed, a number of foreign and international tribunals have accepted this claim. Again, however, there is a retentionist argument lurking here--if there is a problem with excessive delay in the execution of a death sentence, we should just pass more laws like the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), to restrict the opportunities for collateral review of a death sentence.

It is even possible that a moratorium, such as that in place in Illinois, and as proposed nationwide by the American Bar Association, could serve as a means for marshaling support for the continued use of capital punishment rather than its abolition. A recent survey of public opinion on death penalty matters reveals that about the same percentage of Americans favor a moratorium as favor the death penalty, and notes that these results are not necessarily inconsistent.

All of these examples raise the question whether any of the successes that the abolition movement has achieved, especially since the death penalty was reinstated after Gregg, have brought us any closer to getting rid of capital punishment for good; or whether at each juncture we have only pointed out the most glaring errors so that retentionists could fix them and then say-- see, it's okay for us to have the death penalty, we've fixed the irregularities in the system. This is not an unimportant concern; after all, most of the procedural protections now provided for in the administration of capital punishment came out of constitutional challenges to the death penalty.

One way that the strategy of incremental, procedural change might succeed is to force what might be called the “Blackmun Revelation.” As Justice Harry Blackmun wrote eight years ago in his dissenting opinion in Callins v. Collins, just months before stepping down from the Supreme Court:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

The Blackmun Revelation is thus that none of these incremental changes ever ultimately remedy the problem, so at some point we must conclude that perhaps the problem cannot be remedied.

This is the same revelation that Justice Powell reached, as I mentioned earlier, although regrettably he was off the Court by this time. As Justice Powell's biographer has claimed, his statement that he would change his vote in McCleskey was based not on fundamental moral opposition to the death penalty, but rather on a concern that it could never be fairly and non-arbitrarily administered.

As Justice Blackmun further stated in Callins:

Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.

Are we just chasing these problems down one hole, only to have them reappear, just as virulent and pernicious, from another? How can we shape our advocacy and activism to put the death penalty away for good?

The struggle for racial equality is inextricably tied to the struggle for fairness in the criminal justice system. And in both of these struggles, there is a long road ahead. Six months before he died, Justice Marshall spoke from Independence Hall in Philadelphia, where he received the Liberty Bell Award on July 4, 1992. He described the unfinished journey to racial equality as follows:

I wish I could say that racism and prejudice were only distant memories ... and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity.

But as I look around, I see not a nation of unity but of division--Afro and white, indigenous and immigrant, rich and poor, educated and illiterate.

But there is a price to be paid for division and isolation ....

We cannot play ostrich. Democracy cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage .... We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a government that has left its young without jobs, education, or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America can do better, because America has no choice but to do better ....

Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.

Jesse Climenko Professor of Law, Harvard Law School.