Commentary: Death-Penalty Reform Requires Action at the State Level

In the United States, the responsibility for defining what is a crime and enforcing the criminal laws rests primarily with the states. That fact, New York Times columnist Charles Blow (pictured) writes, makes action at the state level “[t]he true frontier of criminal justice equality.” From cash bail to the death penalty, Blow says, “[i]f the criminal justice system is to move toward racial equality and liberation this change will have to start with the states.”

Blow’s February 24, 2021 column, Criminal Justice Is a State Issue, details the nationwide economic and racial injustice at the front and back ends of the criminal legal system. “Mass incarceration driven by cash bail is destroying poor and minority lives and families,” he writes. At the other end of the system, the death penalty has “a history of extreme racial bias in its application, with Black people convicted of victimizing white people being far more likely to be killed by the state,” he says. And “the shocking number of exonerations of people on death row … suggests that many others who are also innocent but don’t have access to good lawyers are killed by the state.”

“[M]any of the most impactful criminal justice reforms can and must be enacted by states, not by the federal government,” Blow notes, and some recent actions give cause for optimism. In February, “Illinois became the first state to eliminate its cash bail system, and Virginia became the first Southern state to abolish the death penalty,” he says.

“States have the power to write their own criminal codes,” Blow writes. “Those codes are riddled with racial biases, often intentional. But too many have done too little to change those laws and right the wrongs.”

Blow argues that action by state legislatures is especially appropriate with respect to capital punishment because “[t]he death penalty is overwhelmingly carried out on the state level.” There are currently fewer than 50 prisoners on federal death row compared to more than 2,500 on state death rows across the country. And despite the historically unprecedented execution spree at the close of the Trump administration, just 16 prisoners have been put to death by the federal government since executions resumed in the U.S. in 1977 as compared to 1,516 executions by the states.

Citing DPIC’s 2020 report, Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty, Blow discusses the historical use of capital punishment as an instrument of racial oppression. “The death penalty has disproportionately been used as a weapon against Black men — often under the guise of defending white women — and became a more sanctioned and more orderly form of lynching. Not only is it barbaric, it is biased,” Blow asserts. “The social justice position on criminal justice isn’t only that the system is constructed in destructively punitive ways, but also that there is inherent racial inequality in the way laws are applied.”

“Each state has the power to keep [the death penalty] or get rid of it,” Blow observes. “About half the states have already abolished it, but the other half continues to cling to it.” Given the nature of who most uses capital punishment, he argues, its future is in the hands of the states.