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.