Excerpted From: Sidney Balman, Ensuring Black Lives Matter When the Penalty Is Death, 15 Idaho Critical Legal Studies Journal 1 (2022) (358 Footnotes) (Full Document)


SidneyBalmanTrayvon Martin. Michael Brown. Breonna Taylor. George Floyd. These are several of the names that come to mind when we think about the Black Lives Matter (BLM) movement. They are the faces of institutional oppression of Black men and women in their daily interactions with law enforcement. Thus far, the BLM movement has focused on police brutality against Black communities--the vagaries of violence perpetrated on minority communities by those whose duty is to protect them. But there is another place where Black Lives should Matter, but don't--the death penalty.

The law of Black lives not mattering was established in the 1987 landmark case McCleskey v. Kemp. In McCleskey, the Supreme Court famously acknowledged a study proving that race influences capital sentencing but then held that the results of that study did not mean that capital punishment violated the Eighth Amendment. To establish a violation of the Eighth Amendment, the Court held a capital defendant must show intentional race discrimination in his or her case. As Justice Blackmun observed in dissent, the same disparate impact evidence that individuals could use to save their jobs could not be used to save their lives. Today, McCleskey has come to stand for the Court's refusal to address the racially disparate imposition of death across the nation.

In a separate and seemingly unrelated corner of death penalty doctrine, another type of disparate impact has likewise gone unaddressed: geographic arbitrariness. Although the Supreme Court in Furman v. Georgia held that the arbitrary and capricious imposition of the death penalty violates the Eighth Amendment, and has not repudiated that principle since announcing it in 1972, the fact of the matter is that the death penalty is a punishment pursued and applied only in certain counties. In fact, as of 2013, only two percent of all counties in the United States are responsible for more than half of the nation's death row population and for more than half of the nation's executions since 1976.

Considered separately, neither of these problems are particularly new. Scholars have written about racial discrimination in the death penalty for decades. More recently, scholars have also written about geographic arbitrariness in capital punishment. Few scholars, however, have recognized the connection between the two. To the extent that they have, they have simply equated the death penalty with the imposition of death sentences in former confederate states. Yet to be explored in the literature is the connection between race and geography today. This connection moves beyond the death penalty as Southern exceptionalism connecting the past with the present and showing that the overlap between racism and geography is not just a coincidence.

This article aims to fill this gap in the literature, examining racism in the context of geographic arbitrariness both as a historical condition and as a distinct feature of the death penalty today. After exploring the problem, I consider two possible responses. One I refer to as “McCleskey Plus” because it does what the Supreme Court failed to do in 1987. Here I argue for the implementation of racial justice acts that recognize race discrimination in the imposition of death without requiring a showing of purposeful discrimination. The second possible response takes the BLM movement to the next level, moving past demands to “defund the police” to a compelling, clear message: “defund the death penalty.”

The discussion proceeds as follows. Part I of this Article introduces the problem more fully, beginning with the foundational condition of the death penalty's constitutionality as established in Furman v. Georgia--that it not be imposed in an arbitrary and capricious manner. This discussion on Furman is followed by what at first glance appears to be two separate violations of this rule: the death penalty's application along the lines of geography and race. Part II provides a deep dive into the connection between geographic and racial arbitrariness today by examining the top death sentencing and executing counties in the United States through the lens of their extensive histories of racial tension and prosecutorial misconduct. Part III explores what it means for the death penalty to exist in a society that demands criminal justice reform and equal treatment for Black men and women. In the end, it suggests two plausible solutions to resolving the tangled relationship between race and geography in the death penalty's application. The states that still embrace capital punishment, and the federal government for that matter, can (1) recognize through the enactment of racial justice acts that the death penalty should only be imposed in the absence of racial and geographic arbitrariness, or (2) embrace the BLM movement's “Defund the Police” mantra and apply it to where Black lives are actually on the table--“Defund the Death Penalty.”

[. . .]

This project is intended to serve as a conversation starter. The goal is to shine a light on a connection between two problems that have been under-appreciated thus far, and to start thinking about what we might want to do about it. However, the primary objective is to shine a light and connect the dots. The hope is that this will allow us to have the conversations needed to make the changes that scream out to be made.

Understanding the relationship between the death penalty, race, and geography is well suited for the crossroads at which the United States sits today. Gretchen Engel, the Executive Director of the Center for Death Penalty Litigation summed it up perfectly when she said the United States is “a nation of laws, and when people have trials, they have to be fair trials, and part of a fair trial is that you don't get a harsher punishment or a whiter jury because of the color of your skin.” The two possible responses discussed above stand for just that. If the death penalty cannot exist without racial and geographic arbitrariness, then it no longer has a place in our country's criminal justice system. In light of the United States's abhorrent history built on systemic racism and the Supreme Court's admitted failure in McCleskey, there is no better time for change than in the midst of the BLM Movement. Black Lives must Matter. This is America.

J.D. from the University of Richmond School of Law.