LAW REVIEW: ​“The American Death Penalty and the (In)Visibility of Race”

In a new arti­cle for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School exam­ine the racial his­to­ry of the American death penal­ty and what they describe as the U.S. Supreme Court’s ​“deaf­en­ing silence” on the sub­ject of race and cap­i­tal pun­ish­ment. They assert that the sto­ry of the death penal­ty ​“can­not be told with­out detailed atten­tion to race.” The Steikers’ arti­cle recounts the role of race in the death penal­ty since the ear­ly days of the United States, includ­ing the vast­ly dis­pro­por­tion­ate use of cap­i­tal pun­ish­ment against free and enslaved blacks in the ante­bel­lum South and describes the racial and civ­il rights con­text in which the con­sti­tu­tion­al chal­lenges to the death penal­ty in the 1960s and 1970s were pur­sued. The authors con­trast the ​“salience of race” in American cap­i­tal pun­ish­ment law and prac­tice through the civ­il rights era with the ​“rel­a­tive invis­i­bil­i­ty [of race] in the judi­cial opin­ions issued in the foun­da­tion­al cas­es of the modern era.”

After a thor­ough expla­na­tion of ​“why a ​‘race-neu­tral’ con­sti­tu­tion­al approach to the issue of cap­i­tal pun­ish­ment may have been appeal­ing to the Supreme Court even — per­haps espe­cial­ly — in the racial­ly charged era of the 1960s and 1970s,” the authors con­clude, “[t]he sto­ry of how the American death penal­ty came under assault in the 1960s, was almost judi­cial­ly abol­ished in the ear­ly 1970s, and has been sub­ject to con­tin­u­ing con­sti­tu­tion­al reg­u­la­tion there­after can­not be told with­out detailed atten­tion to race. And yet the Supreme Court opin­ions address­ing the American death penal­ty dur­ing this foun­da­tion­al era are soaked in euphemism, address­ing prob­lems of ​‘arbi­trari­ness,’ ​‘caprice,’ and ​‘dis­pro­por­tion­al­i­ty.’ …We are con­fi­dent that, what­ev­er the future holds for the American death penal­ty, its des­tiny is in some impor­tant sense linked to the dis­tinc­tive and destruc­tive role of racial dis­crim­i­na­tion in American society.”

(C. Steiker and J. Steiker, ​“THE AMERICAN DEATH PENALTY AND THE (IN)VISIBILITY OF RACE,” 82 University of Chicago Law Review 243, Winter 2015.) See Race, Law Reviews, and U.S. Supreme Court.