Harvard Law Professor Carol Steiker (pic­tured), co-author of the high­ly acclaimed book, Courting Death: The Supreme Court and Capital Punishment, joins DPIC’s Robin Konrad for a provoca­tive dis­cus­sion of the past and future of America’s death penal­ty. In the lat­est episode of Discussions with DPIC, Professor Steiker — who served as a clerk for Supreme Court Justice Thurgood Marshall — takes us inside the walls of the Court for insights on the jus­tices’ approach­es to cap­i­tal-pun­ish­ment jurispru­dence and the impact of Justice Marshall’s lega­cy on the Court today. She describes her expe­ri­ence with death-penal­ty cas­es as a U.S. Supreme Court clerk, and talks about the recur­ring evo­lu­tion of the jus­tices’ views on the death penal­ty as they expe­ri­ence years of failed attempts to redress its sys­temic flaws. In putting the mod­ern death penal­ty in con­text, Professor Steiker focus­es par­tic­u­lar­ly on the rela­tion­ship between race and cap­i­tal pun­ish­ment. ​“Today’s death penal­ty,” she says, ​“is inex­tri­ca­bly tied to a his­to­ry of slav­ery, of lynch­ing, of pro­gres­sive anti-lynch­ing sup­port of the death penal­ty. Those are the waves of his­to­ry that are still lap­ping at the shore of the present.” The lega­cy of that his­to­ry, she says, con­tin­ues to be felt in the over­whelm­ing­ly dis­pro­por­tion­al use of cap­i­tal pun­ish­ment by the states of the for­mer Confederacy, as com­pared to the rest of the coun­try, and the dis­parate pur­suit and impo­si­tion of the death penal­ty in cas­es involv­ing White vic­tims. Steiker iden­ti­fies sys­temic prob­lems in today’s death penal­ty that she says could some day lead the U.S. Supreme Court to declare it uncon­sti­tu­tion­al, includ­ing the politi­ciza­tion of judges and pros­e­cu­tors and the ​“abysmal” state of cap­i­tal rep­re­sen­ta­tion. When and if abo­li­tion occurs, she says, will depend ulti­mate­ly on the com­po­si­tion of the Court.

(Discussions With DPIC pod­cast, Professor Carol Steiker, Author of Courting Death, Offers an Inside Look at the Supreme Court and the History and Future of America’s Death Penalty, post­ed by DPIC, June 21, 2018; Carol Steiker and Jordan Steiker, ​“Courting Death: The Supreme Court and Capital Punishment,” The Belknap Press of Harvard University Press, 2016.) See Podcasts, Race, and History of the Death Penalty.

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