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.