Law Reviews — Valuing Black Lives: A Case for Ending the Death Penalty

“States still oper­at­ing a cap­i­tal pun­ish­ment sys­tem are inca­pable of admin­is­ter­ing the death penal­ty free from racial dis­crim­i­na­tion and arbi­trari­ness.” So argues Alexis Hoag (pic­tured), Practitioner in Residence at the Eric H. Holder Jr. Initiative for Civil and Political Rights at Columbia University, in an arti­cle in the Spring 2020 issue of the Columbia Human Rights Law Review.

Hoag’s arti­cle, Valuing Black Lives: A Case for Ending the Death Penalty was pub­lished in con­nec­tion with the Columbia Law School’s Symposium, Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment. She writes that the death penal­ty vio­lates the Fourteenth Amendment to the U.S. Constitution because, in the near­ly half-cen­tu­ry since Furman v. Georgia declared exist­ing U.S. death-penal­ty statutes uncon­sti­tu­tion­al, the cap­i­tal pun­ish­ment laws enact­ed in its wake con­tin­ue to sys­tem­i­cal­ly dis­crim­i­nate on the basis of the race of murder victims.

“Since its incep­tion, the dis­pro­por­tion­ate impo­si­tion of the death penal­ty has denied mur­dered Black vic­tims the equal pro­tec­tion of the laws,” Hoag writes, plac­ing a high­er val­ue on the lives of white mur­der vic­tims while under­valu­ing the lives of Black mur­der vic­tims. ​“Capital pun­ish­ment is sup­posed to be reserved for those who com­mit the ​‘worst of the worst’ crimes. Instead, as a result of bias, prej­u­dice and racism, it is dis­pro­por­tion­al­i­ty reserved for those charged with killing white victims.”

Hoag traces the deval­u­a­tion of Black vic­tims from ear­ly American slave codes that treat­ed crimes against slaves as prop­er­ty crimes against white slave­hold­ers to Antebellum laws that explic­it­ly estab­lished dif­fer­ent offens­es and dif­fer­ent pun­ish­ments based upon the races of the vic­tims and alleged per­pe­tra­tors. She describes how the bla­tant­ly racist appli­ca­tion of crim­i­nal law across the South con­tributed to the adop­tion of the Fourteenth Amendment. ​“When Senator Jacob Howard of Michigan intro­duced the Amendment to the Senate, he explained: ​‘It pro­hibits the hang­ing of a black man for a crime for which the white man is not to be hanged.’ Forefront in the framers’ minds was to pro­vide redress to Black vic­tims of crimes, and to end the legal dis­crep­an­cies that had long exist­ed in Southern states.” 

Hoag exam­ines the con­se­quences of the U.S. Supreme Court’s deci­sion in McCleskey v. Kemp, which reject­ed a Fourteenth Amendment equal pro­tec­tion chal­lenge to the death penal­ty that was sup­port­ed by strong sta­tis­ti­cal evi­dence of per­sis­tent racial dis­par­i­ties in the appli­ca­tion of the death penal­ty. Although this evi­dence was the type rou­tine­ly accept­ed as proof in oth­er equal pro­tec­tion cas­es alleg­ing dis­crim­i­na­tion in edu­ca­tion, employ­ment, and access to hous­ing, the Court said this evi­dence of sys­temic dis­crim­i­na­to­ry law enforce­ment was not pro­ba­tive of dis­crim­i­na­tion in an individual case. 

“[F]inding an equal pro­tec­tion vio­la­tion,” Hoag writes, ​“would have required the Court to acknowl­edge deeply entrenched, sys­temic racism in the admin­is­tra­tion of the death penal­ty. It was unwill­ing to con­cede that racism, bias, and prej­u­dice played a role in police inves­ti­ga­tions, pros­e­cu­tor charg­ing deci­sions, and jury and judge deci­sion-mak­ing.” Instead, Hoag says, the Court ​“cre­at­ed a regime where the most rel­e­vant and pro­ba­tive evi­dence — i.e., his­tor­i­cal dis­crim­i­na­tion and delib­er­ate dis­pro­por­tion­ate pun­ish­ment — could not be used to estab­lish a Fourteenth Amendment equal pro­tec­tion vio­la­tion. This under­mined the intent to extend redress­abil­i­ty to Black peo­ple inher­ent in the Fourteenth Amendment.”

With an addi­tion­al three decades of data doc­u­ment­ing the con­tin­u­ing dis­crim­i­na­to­ry appli­ca­tion of the death penal­ty, Hoag advo­cates that a new chal­lenge to the con­sti­tu­tion­al­i­ty of the death penal­ty should be mount­ed, ​“cen­tered on the under­val­u­a­tion of Black lives.” That chal­lenge should iden­ti­fy spe­cif­ic cas­es that appear as close to iden­ti­cal as pos­si­ble on their face but result­ed in a death sen­tence for a Black defen­dant charged with mur­der­ing a white vic­tim and no cap­i­tal pros­e­cu­tion at all for a defen­dant charged with mur­der­ing a Black vic­tim. Defense coun­sel should then mar­shal the evi­dence of ​“racism in the com­mu­ni­ty where the cas­es are being pros­e­cut­ed, in the pros­e­cut­ing attorney’s office, and in the inves­ti­gat­ing police depart­ment” and ​“evi­dence of racial dis­crim­i­na­tion from the spe­cif­ic pros­e­cu­tors involved in the charg­ing deci­sions — their record of [dis­crim­i­na­to­ry jury selec­tion prac­tices], their per­son­nel files, and any pub­lic state­ments they have made.”

No death penal­ty sys­tem will elim­i­nate racism from its appli­ca­tion, Hoag argues, so long as ​“the American pub­lic and the jus­tice sys­tem con­tin­ue to under­val­ue Black lives. Where mul­ti­ple actors in the jus­tice sys­tem — law enforce­ment, pros­e­cut­ing attor­neys, and the jury — all con­tribute to con­sis­tent race-of-vic­tim dis­par­i­ties in death sen­tenc­ing, there can be no con­sti­tu­tion­al admin­is­tra­tion of capital punishment.”

Hoag con­cludes, ​“Placing equal val­ue on Black lives — per­pe­tra­tors and vic­tims — rel­a­tive to white lives, would com­pel the crim­i­nal legal sys­tem to address long­stand­ing racial dis­crim­i­na­tion in the oper­a­tion of the death penal­ty. Rather than expand or even reform cap­i­tal pun­ish­ment, the only solu­tion is abo­li­tion.” Abolition, she says, ​“forces the law to con­front the dehu­man­iza­tion, vio­lence, and racial degra­da­tion inher­ent in death sen­tenc­ing. Empirical evi­dence gath­ered since Furman illus­trates that our nation is inca­pable of admin­is­ter­ing the death penal­ty free from racial dis­crim­i­na­tion. It is time for this nation to cease tin­ker­ing with the machin­ery of death and to abol­ish capital punishment.”