The history of the death penalty in America has been racially inflected, yet the death penalty reforms and regulations that have taken place over the past 40 years have given very little mention to race. That was the core message delivered by Harvard Law School professor Carol Steiker in a talk sponsored by the Harvard Law School American Constitutional Society.
Steiker explained that 100 years ago, the arguments in favor of capital punishment focused on two areas: eugenics and the prevention of lynching, both of which were supported by progressives at the time. Eugenics was a significant argument in favor of the death penalty, as it was a way to prevent those who were viewed as diseased or inferior from breeding.
“It was common for states to pass laws not only for the sterilization of people who were feeble minded or mentally ill, but also as punishment for crimes,” said Steiker. “There were people who were proponents of eugenics who thought that capital punishment should play a role in preventing the promulgation of the unfit.”
The prevention of lynching argument was also in vogue with early 20th century progressives. Steiker explained that in the last decade of the 19th century, more people were lynched than were executed in the United States. The vast majority of the lynchings occurred in southern states, and they were mostly against black men who were accused of crimes against white women. Many reformers feared that abolishing the death penalty would result in increased lynchings, and that the lawless mobs operating outside the state would embarrass state governments, particularly in the South.
“One of the things you see about the history of the death penalty is that there are really two histories—one of the death penalty in the northern and midwestern states, and one of the death penalty in the South,” Steiker said. “One of the main reasons was the institution of slavery. Slave-holding states felt an absolute need to maintain the death penalty, at least for their slaves. Slaves were already in captivity, so owners couldn’t threaten to lock them up. Slave owners felt that corporal and capital punishment were necessary.”
Through the first half of the 20th century, there was a racially disparate impact in capital punishment, which became a serious concern of the civil rights community in the 1950’s, Steiker said. The NAACP eventually decided to challenge capital punishment and it adopted a multi-pronged national litigation strategy designed to halt every execution, she added. It was remarkably successful in that there were no executions between 1967 and 1971, which is the year that the Supreme Court held that the death penalty was unconstitutional in Furman v. Georgia.
And yet, though the civil rights advocates at the time framed the death penalty as a race issue, race was actually barely cited in Furman, Steiker said. In fact, it was not cited in subsequent death penalty cases such as Coker v. Georgia in 1977, in which the Court ruled that the death penalty was constitutionally excessive for the crime of raping an adult, nor in McCleskey v. Kemp in 1987, in which the Court rejected equal protection challenges to Georgia’s death penalty laws.
Steiker said she believes that the Court has demonstrated a blindness to the racially disparate impact of the death penalty. The continued framing of the death penalty as a public policy or criminal justice issue is a mistake, she argued.
“The investigation into lynching and eugenics show us today…that we don’t realize how much of our history and our debates about the death penalty have really been directly about race or in very much coded terms about race,” said Steiker. “And I think that we need to recover that to see more clearly what the institution really means in our society.”