Seven inmates have been executed in 2020, amid a global pandemic. Forty-one more executions are scheduled for the next four years and there are 2,500 people currently on death row. Yet substantial research suggests that the death penalty is an inefficient and unjust treatment that has failed both the innocent and guilty, especially due to its endemic racial bias. We must wield the current momentum surrounding racial justice to advocate for ending capital punishment before another life is lost.
History of the Death Penalty
Modern capital punishment — also known as the death penalty — was established by the first U.S. Congress in 1790. Almost 200 years later, in the 1972 Furman v. Georgia trial, the Supreme Court ruled against the penalty on the grounds that it constituted cruel and unusual punishment, in violation of the Eighth Amendment. As a result, the court instituted a four-year moratorium on capital sentencing and various reforms like stricter sentencing guidelines, multi-phase capital trials, and mandatory appellate review were adopted.
Following the reinstatement of the death penalty in 1976, capital cases in America rose dramatically. Over the next few decades, a exemptions to the death penalty were created for nonhomicidal rape cases without aggravating factors, prisoners with a limited array of cognitive disabilities, or individuals under 18. Despite these exemptions and post-Furman reforms, there have been 1518 executions, exclusively for the crime of murder, performed to date and there continues to be significant evidence that capital punishment remains ineffective.
Arguments Against Capital Punishment
From 1853, when Wisconsin became the first state to abolish the death penalty, to March 2020, when Colorado became the 22nd state to follow suit, abolitionists have compiled a wide array of arguments against capital punishment. Their arguments stretch beyond constitutional illegitimacy to practical concerns. For one, the exorbitant cost of the death penalty to taxpayers does not result in a difference in murder rates between states that have capital punishment and those that do not.
The death penalty’s wastefulness is apparent when analyzing wrongful convictions. A seminal study from the National Academy of Sciences reports that at least 4% of all death row inmates are innocent — since 1973, there have been 170 death row exonerees. Eighty-nine of these exonerees have been Black, revealing an especially high rate of error that can be attributed in part to the fact that 75% of wrongful convictions result from eyewitness misidentification. Since courts and attorneys close cases after executions, it is difficult to estimate innocence among the dead, but there are at least 20 cases with compelling evidence to prove wrongful conviction. Taken together, this information shows that innocent people are often convicted and executed.
Shujaa Graham is one such wrongfully convicted former death row inmate who shared his story with the HPR. Growing up in South Central Los Angeles, he was involved with neighborhood gangs and spent time in and out of juvenile detention centers before being sent to jail for a $35 robbery in 1965. This sentence had less to do with the nature of the crime itself than where it occurred — the case fell under the purview of the Los Angeles Police Department, which was notoriously known for exhibiting brutality against Rodney King and over-policing Black neighborhoods during the 1965 Watts riots that followed.
Geographic differences between the places where crimes occur can also affect the political leanings of eyewitnesses, police forces, prosecutors, and judges, leading to biased outcomes in certain municipalities. These unjust discrepancies are then magnified by the differing frequency of capital cases among district attorneys’ offices or state-specific judicial processes like the two-step clemency process that limits governors from acting without time-consuming board review in seven states.
Once in Soledad prison, Graham studied Black prison abolition movements and became an outspoken activist before being wrongfully accused of murdering a prison guard on November 27, 1973. During his first two death row trials, neither of his all-White juries came up with a deal so he was convicted by the judge and sent from Soledad to San Quentin after his second trial. These two trials may have been influenced by systemic shortcomings within the judicial process. Death row trials require “death-qualified” jurors, which eliminates any jurors who categorically oppose the death penalty and biases juries toward verdicts of guilt. In addition to this, individual juror biases may develop because of sensationalized media coverage that can dramatize crime stories involving death row defendants. When paired with overburdened public defenders arguing capital cases, there are countless opportunities for and citations of judicial misconduct.
“They sent me to San Quentin to die,” Graham recalled. “I remember just like yesterday. I had been beaten many times during my life in prison, but this time they beat us in the elevator. After I got off the elevator, I thought I was going directly to my cell but that wasn’t in the cards. They took me into this little room and beat me until I played dead.” Despite these experiences, Graham emphasized that he is not a victim, but a survivor.
Graham’s case illustrates that safety and physical and mental well-being are not prioritized on death row. According to the Bureau of Justice Statistics’ most recent report, published in 2017, 21 individuals died due to various causes including illness, suicide, or violence while on death row. As they wait for trial or execution dates, prisoners are not provided health care resources or support systems. These difficult living conditions have been exacerbated by the global pandemic, with increased viral transmission within prisons and new barriers to obtaining and communicating with legal counsel that could provide life-saving assistance. Even conservative commentators like Drew Johnson have urged states to eliminate the wasteful death penalty in the wake of coronavirus and bipartisan efforts to abolish the death penalty are gaining momentum.
Graham explained how he spent two more years on San Quentin death row before the California Supreme Court overturned his conviction because of the systematic exclusion of Black jurors, a prime example of how constantly evolving standards in the American judicial system are wasting years of prisoners’ lives. Although he was optimistic during his third trial, another all-White jury could not come to a decision. “I couldn’t conceive for the life of me that I had to go to a fourth trial and start all over.” Graham explained, highlighting how the appeal process is exhausting and potentially costly for those who need to hire representation. Luckily, Graham and his team finally won an acquittal on their fourth trial.
Advocating for the Guilty
Graham says he won his freedom “in spite of the system,” not through it, stressing that the wrongfully convicted cannot be freed through the very system that tried them. Beyond the death penalty’s well-documented inefficiencies, capital punishment presents an ethical dilemma. If justice is a commitment to stand against murder, this includes state-sanctioned murder of both the innocent and guilty. The goal is not merely to prevent the murder of innocent people, but to prevent the murder of any person.
Although it is especially egregious to see the death penalty enacted on someone who is innocent, Kristin Houle, executive director of the Texas Coalition to Abolish the Death Penalty, says that it is an obligation to advocate not only for those who are known to be innocent, but those who are guilty of crime. Houle has devoted her career to ending capital punishment in a state responsible for 569 of the nation’s 1518 total executions since 1976 and firmly believes that every person is better than their worst act. She notes that cases built on innocence often receive more resources, attention, and sympathy than those with potentially guilty defendants. The Guilty Project also highlights the dangers of rhetoric exclusively about innocence, calls attention to defendants who are guilty of a lesser or different crime than they are charged with, and argues that ultimately even the guilty should not be put to death, because crime cannot fight crime.
“What’s wrong with America? We’re still struggling with the proper way to kill someone,” Graham said, referencing how all other North American and nearly all European nations have already abolished capital punishment while America has debated firing squads, gas inhalation, electrocution, hangings and lethal injections. Despite these debates, 3% of all executions have involved painful complications for the defendant, including incorrect dosage during injection or fires during electrocution. Barring physically painful complications, death row prisoners might still not have a comfortable and dignified passing when denied final wishes for meals or religious counsel.
Instead of delivering justice, capital punishment subjects people to inhumane treatment. In an interview with the HPR, Alex Madav, associate professor of cognitive science at California Polytechnic State University, says we are creating a stigmatized “other” to marginalize. Madav teaches students in his Race and Racism class to think about the arbitrary definitions of guilt by pointing out how we violate hundreds of laws daily: pirating music, changing multiple lanes at once, jaywalking, etc. Illegal everyday activities highlight that notions of criminality, innocence, and punishment are not clear-cut legal or moral categories.
In America, perceptions of guilt in capital crimes are inextricably tied to and largely constructed by racial bias. The codified history of guiltiness begins with Antebellum laws that established certain acts as felonies deserving capital punishment only when committed by Black defendants. These early racist laws laid the foundation for social, political, and legal norms that rarely served justice to Black defendants or victims in post-Civil War America. In 1987, McCleskey v. Kemp challenged capital punishment using evidence that racial disparities in Georgia’s death penalty could not be explained by any other factor. Although the court did not rule in favor of the prosecution, citing lack of purposeful racism, more cases began to tackle racial biases present in the exclusion of Black jurors or the short-lived Racial Justice Act that prohibited imposing the death penalty on the basis of race. (The Racial Justice Act was implemented in 2009 and repealed in 2013 due to pressure from opposing district attorneys.)
Although America is slowly confronting these biases, racialized notions of guilt and criminality continue to inform decision-making that is costing lives. Recent studies illustrate that Black defendants are more likely to receive punitive treatment and be sentenced to death than those of any other race and that a non-White defendant is more likely to be sentenced to death for killing White victims over any other race.
“Before I could learn how to read and write,” Graham said, “growing up in South Central Los Angeles, I knew what justified homicide. It meant a White police shooting a Black man.” His statement is corroborated by the racially disproportionate trends within convictions and the historical precedents that used race as a basis to define criminal behavior. Taken with earlier examples of inhumane treatment, there is a compelling case for abolishing the death penalty because it systematically fails both the innocent and guilty.
Future of Criminal Justice
Even after the death penalty is abolished, important questions will remain regarding life sentences and prison conditions. “The levels of endless dehumanizing, demeaning treatment that we subject folks to is not oriented towards reintegration,” Madav said. Even after exiting prison, exonerees struggle to reintegrate into society, from handling PTSD and other psychological aftereffects to the inability to secure employment. Fifteen states currently do not offer exonerees any recompense for their wrongful convictions, and felony disenfranchisement limits their civic engagement.
“I suffer each and every day as the consequence of being wrongfully convicted because of racism,” Graham said, “not only within the criminal justice system, but throughout society. Prisons are a small microcosm of society.” Conversations about policing and prisons are closely tied with those about the death penalty because all three illustrate that state-sanctioned punishment is a symptom of a culture of violence, not a solution.
Of course, there should be repercussions for malicious murder and accountability for all crimes. However, Houle notes that perpetrators of horrific crimes are often victims themselves. She advocates for reinvesting millions of dollars from death row cases into measures that will support victims of crimes and prevent violent acts from occurring. More specifically, mental health services, health care, education, and social services can address impoverished living conditions or difficult childhood abuses that can cause people to commit crimes. Graham recognizes the importance of envisioning a just future. “I’m fighting for a time when racism is a thing of the past,” he said. “I refuse to believe that America is so tragically bound to capital punishment that she can’t see the bright light.” Hundreds of countries and 22 U.S. states have already abolished the death penalty. Now, more than ever before, in the wake of protests for racial justice following George Floyd’s public execution, we must also advocate to end the executions happening behind closed doors.
Read the story at Harvard Political Review.