New Scholarship: Born in the Legacy of Discrimination, What Comes After Capital Punishment Goes?

As the death penal­ty con­tin­ues to wilt across the coun­try, what­ev­er peno­log­i­cal jus­ti­fi­ca­tion it once pur­port­ed­ly served is dying as well, say cap­i­tal pun­ish­ment schol­ars Carol Steiker and Jordan Steiker (pic­tured). In their new arti­cle The Rise, Fall, and Afterlife of the Death Penalty in the United States in the January 2020 Annual Review of Criminology, the Steikers exam­ine four cen­tral issues in the rise and fall of the death penal­ty in the United States and explore what an American crim­i­nal jus­tice sys­tem might look like after the punishment’s demise. 

Carol Steiker is the Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program at Harvard Law School. Her broth­er, Jordan Steiker, is the Judge Robert M. Parker Endowed Chair in Law and Director of the Capital Punishment Center at the University of Texas School of Law. Both served as law clerks to the late U.S. Supreme Court Justice Thurgood Marshall and togeth­er they have writ­ten exten­sive­ly on death-penal­ty issues, includ­ing the acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment.

In the Criminology Review arti­cle, the sib­lings address the United States’ reten­tion of the death penal­ty when all oth­er devel­oped Western democ­ra­cies have elim­i­nat­ed it; the role of race and the lega­cy of dis­crim­i­na­tion in the admin­is­tra­tion of the death penal­ty; the death penalty’s ​“sud­den and pro­found with­er­ing” over the last two decades; and the broad­er impact abo­li­tion of the death penal­ty would have on the United States crim­i­nal legal system. 

After review­ing these four main issues, the Steikers con­clude that ​“by every mea­sure, the American death penal­ty is with­er­ing, reflect­ing its increas­ing ten­sion with con­tem­po­rary moral stan­dards and under­cut­ting its abil­i­ty to serve any peno­log­i­cal pur­pose (such as deter­rence or ret­ri­bu­tion) nec­es­sary to jus­ti­fy its retention.”

Why the Modern U.S. Approach to Capital Punishment Differs From Other Western Democracies

In the open­ing sec­tion of their arti­cle, the Steikers exam­ine polit­i­cal and cul­tur­al fac­tors in the United States that led to the reten­tion of cap­i­tal pun­ish­ment in this coun­try while, in the last 40 years, oth­er Western democ­ra­cies elim­i­nat­ed the death penal­ty. They address the argu­ments advanced by oth­er schol­ars, who attribute this diver­gence to such fac­tors as ​“asso­ci­a­tion between a juris­dic­tion’s his­to­ry of vig­i­lante con­duct … and its propen­si­ty to con­duct exe­cu­tions”; the direct con­nec­tion between ​“America’s his­to­ry of slav­ery, lynch­ing, and Jim Crow [and] harsh crim­i­nal and cap­i­tal pun­ish­ment”; and the ​“win­ner-take-all struc­ture of the American polit­i­cal sys­tem” that ​“pro­duces sin­gle-issue cam­paigns” like crime. Ultimately, the Steikers con­clude that “[w]hat is tru­ly dis­tinc­tive — indeed, unique — about the mod­ern era of the American death penal­ty is how cen­tral a role the Supreme Court and the Constitution have played in vir­tu­al­ly every devel­op­ment.… This exper­i­ment with con­sti­tu­tion­al reg­u­la­tion of the death penal­ty more than the mere fact of con­tin­ued reten­tion, is what most sets the United States apart from its peer countries.” 

Race and the Death Penalty

“Race has long influ­enced the oper­a­tion of the American death penal­ty sys­tem,” the Steikers write. The sec­ond sec­tion of their arti­cle explores the inex­tri­ca­ble link between the two. After eman­ci­pa­tion, the Reconstruction Era pro­duced ​“an extra­or­di­nary rise in lynch­ing, which became a more promi­nent and fre­quent means of killing blacks sus­pect­ed of crime (or oth­er trans­gres­sions) than offi­cial exe­cu­tions.” Societal con­cerns about lynch­ing — both a desire to reduce the num­ber of lynch­ings and embar­rass­ment at the image of America it cre­at­ed — ​“helped cement death penal­ty reten­tion­ism,” they say. ​“They note that “[i]n many juris­dic­tions, par­tic­u­lar­ly in the Deep South, the divid­ing line between lynch­ing and cap­i­tal pun­ish­ment was not so stark. In some cas­es, mobs were at the cour­t­house steps, or even in the court­room, insist­ing on the swift dec­la­ra­tion of a death sen­tence and impo­si­tion of an execution.” 

Multiple stud­ies demon­strate the con­tin­u­ing impact of race in the mod­ern admin­is­tra­tion of cap­i­tal pun­ish­ment, they say, most clear­ly in the form of vic­tim pref­er­ence. These stud­ies demon­strate that a defen­dant — black or white — is much more like­ly to be sen­tenced to death and exe­cut­ed if the vic­tim is white, but the evi­dence sug­gests that “[r]acial dis­crim­i­na­tion … permeate[s] all phas­es of cap­i­tal lit­i­ga­tion, includ­ing inves­ti­ga­tion, charg­ing deci­sions, jury selec­tion, and sentencing.”

The Decline of the Death Penalty

Next, the Steikers address the caus­es and sig­nif­i­cance of the decline of the death penal­ty in the United States, reflect­ed by the low­er num­ber of exe­cu­tions and new death sen­tences. The Steikers attribute the decline in death sen­tences to a com­bi­na­tion of fac­tors, includ­ing ​“the decline in mur­der rates,” ​“the increased pro­fes­sion­al­ism of the cap­i­tal defense bar,” and over­all ​“declines in seek­ing the death penal­ty.” They con­sid­er lit­i­ga­tion over state lethal-injec­tion pro­to­cols to be a ​“pri­ma­ry obsta­cle” to exe­cu­tions tak­ing place, con­tribut­ing to the gen­er­a­tional­ly low num­bers of exe­cu­tions in recent years. ​“Some states lack the drugs to car­ry out exe­cu­tions; some states have no approved pro­to­col; con­cerns about botched exe­cu­tions have dimin­ished the appetite for exe­cu­tions; and the pres­ence of the lethal injec­tion con­tro­ver­sy allows actors (e.g., judges, state offi­cials) who have reser­va­tions about cap­i­tal pun­ish­ment apart from the risks of lethal injec­tion to lim­it or pre­clude exe­cu­tions,” they say. They also sug­gest that “[t]he remark­able decline in death sen­tences sug­gests that the cur­rent­ly low num­ber of exe­cu­tions is unsus­tain­able in the near term, and we should expect a sig­nif­i­cant decline in exe­cu­tions with­in the next two decades.”

What’s Next for the United States?

Finally, the Steikers explore what the abo­li­tion of the death penal­ty in the United States would mean for the American crim­i­nal legal sys­tem in the future. Noting that ​“states’ own analy­ses of the rel­a­tive cost of cap­i­tal and non­cap­i­tal pros­e­cu­tions revealed that cap­i­tal pros­e­cu­tions were sub­stan­tial­ly more expen­sive,” they write that “[o]ne unam­bigu­ous gain will be the costs sav­ings that abo­li­tion of the death penal­ty will entail for many juris­dic­tions.” They also write that abo­li­tion of the death penal­ty will call into ques­tion the United States’ out­lier sta­tus in sen­tenc­ing peo­ple to life with­out the pos­si­bil­i­ty of parole (LWOP), a sen­tence that many death-penal­ty abo­li­tion­ists begrudg­ing­ly sup­port. They write, “[t]he erad­i­ca­tion of the death penal­ty would free abo­li­tion­ists from their reluc­tant sup­port of LWOP and allow a more hon­est assess­ment of the cru­el­ty of LWOP and oth­er extra­or­di­nar­i­ly harsh sentences.”

The authors con­clude that ​“even with­out cap­i­tal pun­ish­ment, the vig­or­ous use of oth­er extreme­ly harsh pun­ish­ments (like LWOP) and the main­te­nance of degrad­ing con­di­tions of incar­cer­a­tion (such as exces­sive use of soli­tary con­fine­ment and tol­er­ance of sex­u­al vio­lence) stand in the way of a full embrace of human dig­ni­ty in pun­ish­ment prac­tices.… The dis­man­tling of the death penal­ty will not imme­di­ate­ly or inevitably do much to reverse the mas­sive scale of American imprisonment.”