Longtime civ­il and human rights lawyer, Diann Rust-Tierney, the exec­u­tive direc­tor of Georgetown University’s Racial Justice Institute, joins Death Penalty Information Center exec­u­tive direc­tor Robert Dunham in the first DPIC pod­cast of 2023 for a dis­cus­sion of race, human rights, and the U.S. death penalty. 

Prof. Rust-Tierney, who served as the Robert F. Drinan vis­it­ing pro­fes­sor at the Georgetown University Law Center Human Rights Institute in 2020 – 2021 after six­teen years as exec­u­tive direc­tor of the National Coalition to Abolish the Death Penalty, argues that cap­i­tal pun­ish­ment has long been mis­per­ceived as a nor­mal pub­lic safe­ty tool. The real­i­ty, she says, is that ​“from its very begin­ning in his­to­ry, [the death penal­ty] was part of a legal and social sys­tem designed to keep var­i­ous races in their place.” Rust-Tierney says that racial dis­par­i­ties in the appli­ca­tion of the death penal­ty are not ​“unfor­tu­nate byprod­ucts” of the punishment’s lega­cy of slav­ery, lynch­ing, and Jim Crow seg­re­ga­tion. ​“I’ve come to under­stand that the death penal­ty is actu­al­ly oper­at­ing exact­ly as it was intend­ed. It is intend­ed to teach us whose lives are worth valu­ing and whose lives are not.”

In her 2022 Drinan Chair Lecture on Human Rights, Prof. Rust-Tierney detailed the rela­tion­ship between cap­i­tal pun­ish­ment and the lega­cy of what she calls the ​“American racial caste sys­tem.” In the pod­cast, Rust-Tierney describes the crim­i­nal laws of the ante­bel­lum South, which express­ly con­di­tion what con­sti­tut­ed a cap­i­tal crime and the length of non-cap­i­tal pun­ish­ments upon the race of the defen­dant and the race of the vic­tim. She dis­cussed with Dunham ​“the strange and close rela­tion­ship between lynch­ings… and the death penal­ty,” a ​“hand-in-glove rela­tion­ship” that is ​“not about crime con­trol, not about pub­lic safe­ty, not even about actu­al­ly doing jus­tice. It’s about mak­ing it clear who’s in charge, mak­ing it clear who makes the big deci­sions. And the big deci­sions are, who deserves to live and who deserves to die.”

Asked by Dunham how one changes the par­a­digm through which the death penal­ty is viewed from a crim­i­nal legal issue to a fun­da­men­tal ques­tion of human rights, Rust-Tierney stressed the impor­tance of under­stand­ing both the his­to­ry that led to the mod­ern death penal­ty and the real­i­ty that the death penal­ty is nei­ther about nor con­tributes to pub­lic safe­ty. ​“I also think it’s about show­ing peo­ple a dif­fer­ent way,” Rust-Tierney says. ​“It is tack­ling the real prob­lem of pub­lic safe­ty in a way that makes sense, real­ly invest­ing in under­stand­ing why we are expe­ri­enc­ing the issues that we are expe­ri­enc­ing around pub­lic safe­ty. ​“Where have we not made the invest­ments in men­tal health ser­vices and hous­ing and jobs in sup­port­ing fam­i­lies that we ought to do? Again, the death penal­ty has been a diver­sion, it’s been a dis­trac­tion, and it’s been a delu­sion that we’ve engaged in that has pre­vent­ed us from get­ting to the heart of these problems.”

Rust-Tierney believes that this ​“is an impor­tant time to be hav­ing [a] con­ver­sa­tion” about the death penal­ty as a human rights issue ​“because we are in what I believe to be a glob­al strug­gle for human rights, a glob­al strug­gle for democ­ra­cy. And there are real forces at work in ambi­tious and vio­lent ways to under­mine that, and to real­ly snuff out the hope and even prayer of human rights and democ­ra­cy and, real­ly, self-determination.”

She ​“100 per­cent” sees par­al­lels between anti-demo­c­ra­t­ic prac­tices by the U.S. states who are now using the death penal­ty and the human rights abus­es and anti-democ­ra­cy prac­tices of auto­crat­ic gov­ern­ments abroad: states that are empha­siz­ing secre­cy instead of trans­paren­cy; states that impair peo­ple of col­or from jury ser­vice, either through laws that restrict who can serve on a jury or through the dis­crim­i­na­to­ry use of jury strikes; and state offi­cials attempt­ing to oust local­ly elect­ed pros­e­cu­tors who have said they will not seek the death penal­ty or will seek it more spar­ing­ly. ​“There is a con­nec­tion,” Rust-Tierney says, between death-penal­ty usage and ​“states that are try­ing to oppress a sig­nif­i­cant seg­ment of their pop­u­la­tion, through vot­er sup­pres­sion through a whole range of things.” 

The United States, she argues, is ​“as sus­cep­ti­ble to threats to our democ­ra­cy and human rights as any oth­er coun­try …. [I]t’s time to stand on the side of either democ­ra­cy and self-deter­mi­na­tion, human rights on this side or on the side of autoc­ra­cy and oppres­sion …. [W]e have to fight for democ­ra­cy. And part of that is get­ting rid of the death penal­ty because it is a tool of the autocrat.”

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