Professor Bharat Malkani Explores the Relationship Between Slavery and Slavery-Abolition Strategies and the Modern U.S. Death Penalty

Robert Dunham 0:02

Hello and welcome to Discussions with DPIC. I’m Robert Dunham, the Executive Director of the Death Penalty Information Center.

Ngozi Ndulue 0:08

And I’m Ngozi Ndulue, Director of Research and Special Projects at the Death Penalty Information Center.

Robert Dunham 0:14

Today we’re joined by Professor Bharat Malkani. Professor Malkani is a senior lecturer at the Cardiff University School of Law and Politics in Cardiff, England, and an internationally known expert on human rights and the death penalty. From 2008 to 2017, he taught law at the University of Birmingham Law School. Professor Malkani has written several books and articles on the link between slavery and the death penalty, including the 2014 article “Voices of the Condemned: The Comparative Study of Slave Narratives and Testimonies of Death Row Exonerees,” and his latest book, “Slavery and the Death Penalty: A Study In Abolition.” Welcome, Professor Malkani.

Dr. Bharat Malkani 0:27

Thanks for having me.

Robert Dunham 0:28

Let’s start with a broad question. Why a book about slavery and the death penalty?

Dr. Bharat Malkani 0:31

Well, I’ve long been interested in the death penalty. In the early 2000s I worked in America on efforts to abolish the juvenile death penalty and so my research has always focused on capital punishment. But it was about five years ago when I was watching the film “12 Years a Slave,” the film about Solomon… Solomon Northup, the slave who was wrongly taken into slavery and then freed. And I was watching the film, and it just occurred to me that there are so many parallels with the stories of death row exonerees, which I was familiar with through my research in the death penalty, of my interest in the death penalty. It had the same… the same sort of general structure of a person being wrongly taken into captivity and then against all the odds surviving captivity and escaping or being freed. I had long been known that there were links between slavery and racial violence in the death penalty, but it was watching that that made me think of the links between abolitionists because I was interested in developing exonerees as abolitionists, and of course, formerly, freed slaves also played a role as abolitionists and so I started digging around, just running around on the links between the abolitionists and realized that there was very little there. There was a big gap in the literature. Although there were quite a few articles, a lot of research on… on slavery and the death penalty as institutions, there wasn’t much on the relationship between slavery abolitionists and death penalty abolitionists. And so that’s what drove me… drew me to… to do some research on this and write the book.

Ngozi Ndulue 2:15

What do you think that modern-day death penalty abolitionists can learn from understanding more of the history of how slavery abolition happened and the strategies employed by slavery abolitionists?

Dr. Bharat Malkani 2:29

Yeah I think there’s a couple of things. I think there has been a tendency on occasion for abolitionists for death penalty abolitionists, to sort of… not sort of sidestep the race issue, but feel that it’s not going to get them very far, especially after the decision in McCleskey v. Kemp in 1987. Race-based arguments keep failing in the courts, and so we turn to new arguments such as innocence and costs and those sort of things, but I think this history really should, focus the minds of the anti death penalty movement that we cannot think of the death penalty as separate to America’s history of slavery and racial violence. But I think the main lesson that I got from from researching this and from writing this was the need for death penalty abolitionists to always bear in mind the bigger, longer-term picture. It’s worth mentioning to sort of identify arguments that work in the short term say, for example, the issue of life without parole as an alternative to the death penalty. It’s clear there’s lots of statistical evidence, anecdotal evidence, and if you offer life without parole as an alternative, support for the death penalty drops. It gives politicians an excuse to renounce the death penalty but still appear to be tough on crime. It makes the other people, who support the death penalty in the abstract but have concerns with its application, to renounce their support for the death penalty, knowing that harsh punishment is still going to be imposed on the worst of the worst offenders. In the short term, it’s very attractive, isn’t it, to advocate life without parole.

Robert Dunham 4:01

In your book, you looked at the arguments that conservative and pragmatic anti-death penalty activists made focusing on the death penalty as a failed government program or policy that cost too much and then you contrasted those arguments with morality-based arguments that emphasize the inherent dignity of the person facing execution. And that’s similar to the arguments of the abolitionists when it came to slavery, that the inherent dignity of the person who was enslaved, the inherent immorality of slavery as an institution. And ultimately you concluded that the morality-based arguments have greater social impact than the conservative arguments and you suggest that modern death penalty abolitionists should follow the approach of those who emphasize the inherent dignity of the person — why?

Dr. Bharat Malkani 5:00

Yes, so historians have long tried to classify the diverse aims and motivations and ideologies of the various people who oppose slavery because they weren’t a monolithic group. So, one way of doing that is to classify some as sort of conservative moderate anti-slavery activists and others as more radical abolitionists. And conservative moderate anti-slavery activists were the ones who really focused on slavery as a standalone social issue - once we eliminate slavery, everything will be okay. Whereas the radical abolitionists, on the other hand, recognized that slavery was a symptom of a much broader problem with the American constitutional, political, and social order. That problem was a failure to respect the inherent dignity of all people. So they fought not just for the abolition of slavery, but for a recognition of the dignity of black people, equal dignity of black people, alongside whites, and various other minorities as well. And we know in hindsight that one of the problems with the conservative, moderate anti-slavery voices was that it entrenched the problem of racial subjugation. And we have some anti-slavery activists who opposed slavery, but broadly speaking, are white supremacists - they agree in separation of the races. And several historians, Nicholas Guyatt in a book called “Bind Us Apart,” argues this, that those moderate, conservative anti-slavery voices led to the entrenchment of racial segregation in the pro slavery era. We can sort of learn lessons from that now that we’ve had the benefit of hindsight, we can learn lessons from that and know that if we do not tackle the values that underpin the problem in question and the values that underpin the death penalty, then we’re just going to entrench problems that lead to the death penalty. The issue here is not just the problems with the death penalty in practice, but the underlying values that lend support for the death penalty. And this is (unclear) and a belief that those who commit the most horrific of crimes lack human dignity and can be disposed of. And to that, I think in the longer term, the morality-based arguments, arguments based on the recognition of dignity will have greater social impact.

Robert Dunham 7:07

So what do you do then in the shorter term? What do you say to the folks who are… who are conservative, but think the death penalty costs too much; believe in the death penalty in theory, but don’t think that death penalty that exists is the death penalty that they support. I’d be curious on what your thoughts are on whether there is still a role to play for pragmatic non-moral opposition in abolishing the death penalty now and then addressing the other problems afterwards.

Dr. Bharat Malkani 7:45

Yeah, there’s definitely a role, I think. Any argument that appears to have some sort of effect on support for the death penalty should be utilized of course it must. And I’m not saying we’ll take all those arguments altogether, but I’m saying that abolitionists need to be clear about how they’re packaged. If they’re not done in that lauded dignitarian framework, then we run the risk of entrenching the values that lend support for harsh reprobates of punishments, and I think a lot of inspiration on this from Justice Kennedy’s death penalty jurisprudence. Justice Kennedy from 2005 onwards brings back the idea of dignity into his death penalty opinions, in Roper v. Simmons, Kennedy v. Louisiana. And we haven’t seen the word “dignity” in a death penalty decision since Justice Brennan and Marshall in the 70s. And he abolishes the death penalty for juvenile offenders using the word “dignity” in his jurisprudence. And then he uses that same decision to tackle the issue of life without parole for young people. And I find that quite fascinating because in Roper, the court explicitly said life without parole is still there as a sentence for young people. But Justice Kennedy was able to use this sort of dignitarian-based decision to then tackle other injustices such as life without parole. He also used the idea of dignity to tackle solitary confinement, again, in a death penalty case he uses it. So… so my issue is not that the… the argument based on innocence and costs should be abandoned altogether, but it’s best that they mustn’t be done at the expense of the broader dignity argument.

Ngozi Ndulue 9:22

I noticed you use the word “dignity” often, both as we speak and in your book. Do you see a difference between framing this, the death penalty, as a human dignity issue versus a human rights issue?

Dr. Bharat Malkani 9:35

Not really. I think dignity, I know that a lot of people don’t like the word dignity because it’s quite a vague idea, it’s a vague concept, and making arguments based on human dignity often doesn’t work when trying to convince people to rescind their support for the death penalty. But I find it a useful idea for… for the central problem with the death penalty and the criminal justice system. The central problem is having a constitution or criminal justice system that does not explicitly recognize the dignity of all people. And that was a central problem with slavery too, was that it did not respect the dignity of all people. So that’s why I find the idea of dignity particularly useful for recognizing that the death penalty is a symptom of a much greater problem with the criminal justice system and shouldn’t be tackled as a standalone issue.

Ngozi Ndulue 10:30

So one of the chapters in your book is devoted to the current issues with lethal injection and the role of pharmaceutical companies in not making their drugs available for executions. Could you talk about, kind of, what the historical perspective on slavery abolition has to do with this current state of affairs?

Dr. Bharat Malkani 10:57

Yeah, it’s the current state of affairs really is that issue of non-complicity. It’s the idea that pharmaceutical companies, foreign governments are now refusing to be complicit with the death penalty. And I think that’s key to all of this because I think when it comes to something like the death penalty, I think that a lot of people probably haven’t given a second thought to capital punishment because it just doesn’t affect them. Violent murder, executions happen to other people far away from them. And that was a similar issue during the era of slavery. Again, the anti-slavery movement struggled to really get people on… on side because slavery just wasn’t an issue that concerned them, especially Northerners that thought that slavery was something that happened in Deep South, to other people. But what slavery abolitionists did very well was highlight that by acquiescing in such a practice, by staying silent on such a practice, Northerners were being complicit in this moral wrong. And so they managed to really stir up feelings among Northerners that it was a moral wrong to be complicit in this abhorrent practice. So again, taking that fast-forward into the last, last few years, and I think what, what pharmaceutical companies have done, foreign governments have done, when they recognize that their drugs are going to be used in executions, they’ve realized that actually we’re being complicit in what we consider to be a moral wrong. And so by refusing to provide the drugs for lethal injections, they’re really highlighting not just to themselves but to society at large, to the medical profession at large, the need to always speak out against these issues, even if you’re not directly involved in it, even if you’re not the one carrying out the execution or sentencing the person to death. The death penalty still implicates everybody, the dignity of everybody.

Robert Dunham 12:44

Professor, it’s really interesting, the parallels in terms of social response to slavery and social response to the death penalty. And your book says that it’s widely recognized that capital punishment in the United States continues to be imbued with the legacy of slavery. But even with these parallels, many in America aren’t aware of that legacy. Would you explain that link to our audience? How is it that what we are now seeing in the US death penalty is actually a legacy of slavery?

Dr. Bharat Malkani 13:21

Yeah, sure. I do this in the first three chapters, I really explore this in depth. I think it’s worth splitting this into three eras, really, the relationship between slavery and the death penalty, the first era being the era of slavery. And during this time, it was felt that the death penalty was really necessary to keep slave and free black population under control. The death penalty was part-and-parcel of the machinery of slavery. And this is all quite transparent, quite legal. So by 1858, for example, in Virginia, there were 66 crimes that were punishable by death if committed by a slave, but only one crime that whites could be executed for. The rationales being very straightforward: slaves are already in captivity, so you can’t threaten them with incarceration to deter them from committing crime. The only thing you can… you can threaten them with really is death. And so what we find is that in the legal systems in statutes, we have this entrenched racial discrimination. So that’s the legacy of slavery and the death penalty during the era of slavery. When slavery is abolished, or restricted, rather, by the 13th Amendment in 1865, we enter a second era of the legacy of slavery and the death penalty, which are no longer statutes that are so blatantly discriminatory against blacks because of the 14th Amendment. But in practice, what we get, is the phenomenon of all-white juries sending black people to their death. One of the reasons for this is that during the era of slavery, although slaves could be exposed to the death penalty at a much greater rate, they were actually very rarely executed or not executed as… at greater (unclear) financial value, it made little financial sense to execute the slave. The slave owner would have to be compensated, and you would lose a worker. So alternative punishments are imposed instead. But following the abolition of slavery, all of a sudden, we have this issue where black people no longer have monetary value. And so they’re farmed off into the criminal justice system, because the 13th amendment, remember, allows slavery as a punishment for crime. So supporters of slavery looked at a criminal justice system as a replacement for the plantation. Once in the criminal justice system, there’s no real incentive to keep black people alive, they no longer have a financial value. But also interestingly in this era, we have the phenomenon of lynchings. Lynchings are a big thing in the late 1800s, early 1900s, so a lot of anti-racists really speak out against lynchings and there’s all these organized campaigns against lynchings, mainly by the NAACP and so on. And so we have this rather strange… strange situation where these campaigns against lynching actually lead to an increased use of capital punishment because white supremacists say well if we’re not allowed to lynch these people, then we’ll just go through the form of judicial process and execute them. And so as we see a decline of lynchings, we see the number of the use of the death penalty, particularly against black people skyrocket. And it’s interesting to me in this era, this sort of Progressive Era, a number of states did actually abolish the death penalty. Tennessee, even Iowa and Colorado abolish the death penalty, but quickly reinstate it because it’s believed that the death penalty is needed as… as a way of placating lynch mobs. Not to punish lynch mobs, but a way of giving them justice, as a way of placating them so they feel that justice is done. So, we can’t lynch people out on trees in the courtyard lawn, but we’ll just bring them into the courtyard building and hang them there to give it a degree of legitimacy. And that’s the second era in where we see that legacy of slavery and racial discrimination really play out in the death penalty. The third era comes in the 1970 era, the blatant discriminatory use of the death penalty during the 1940s, 50s, 60s and so on, lead to a constitutional challenge in the 1970s in Furman v. Georgia. And although the court, the Supreme Court, does abolish the death penalty in Furman v. Georgia, it only abolishes the death penalty as it was then practiced. So what states do is they look at the decision and they recraft their death penalty statutes, they take into account the court’s concerns, introduce the statutes, report to have some sort of guidance for when people will be sentenced to death so it’s not so arbitrary anymore. And in Gregg v. Georgia in 1976, these statutes are upheld. Now on the face of it, we would think that these statutes would eliminate racial discrimination because it doesn’t allow for the imposition of death sentence on the basis of race, removes aggravating factors and it allows for mitigating factors and so on. But since then, since 1976, researchers have consistently found that you’re far more likely to be sentenced to death if you are accused of killing a white person rather than if you’re accused of killing a black person. The implication there being that white lives are more important; if you kill a black person, that’s not such a big deal, but if you kill a white person, well you’ve crossed the line, you face the ultimate punishment. In 1987 this statistical evidence is presented to the US Supreme Court in McCleskey v. Kemp, and the court accepts the evidence, says yeah, the statistics look rigorous, they look convincing. But they say it’s not for the court to overturn a death sentence on the basis of general statistical evidence. And since then we’ve had this phenomenon where this still continues, we know full well that you are far more likely to be executed if you’re accused of killing a white person. And so that’s the third era of, of the legacy of slavery in the death penalty: the idea that black lives matter less than white lives

Robert Dunham 19:32

One of the things that always has been interesting to me, and I think that one of the more terrifying implications of the death penalty as a legacy of lynching and slavery, was the execution of Rainey Bethea in Owensboro, Kentucky in 1936. He was the last public execution in the United States [Kentucky]. And, you know, when we look at the history of lynchings, you had, you had these circus-like events where you’d have tens of thousands of white people in front of scaffolds that were built for the purpose of having a public display where a single or sometimes several black men are hung, burn, shot, tortured to death in front of these sometimes cheering mobs, and that’s what a lynching looked like. It wasn’t, it wasn’t just breaking into somebody’s house in the middle of the night and taking them out and… and killing them. They were actually advertised in newspapers and displayed and then Kentucky in 19… in the 1930s had death penalty for murder and death penalty for rape. But if you committed a murder, you were executed indoors in the state facility. And if you were convicted of rape and sentenced to death, you were killed in… in the county on the courthouse lawn. And so Rainey Bethea in 1936 in Kentucky, it looks a whole lot of like a lynching to me, he is charged only with rape, not with murder and he was convicted by an all white jury and he sentenced to death. And he’s taken out and he’s hung on the courthouse lawn in front of between five and ten thousand white people.

Ngozi Ndulue 21:30

And I think, Dr. Malkani, you talked a little bit about, in your book, about this public-private viewing and how that public execution kind of played a role in, how race played a role in whether this was a public spectacle. Can you talk a little bit about that in regards to the Rainey Bethea case and cases like that?

Dr. Bharat Malkani 21:54

Yeah, absolutely. So again, in the 1830s when slavery was legal, we have an anti-death penalty movement of sorts. We have efforts to eliminate the death penalty. One of the things they do is try and restrict the scope of capital punishment in this, but they only restrict it for white defendants. That’s why when I said earlier that white defendants in Virginia, for example, would only be subject to the death penalty for one crime, whereas blacks and slaves were subject to the death penalty for 66 crimes. It also… and also transpired with their methods of execution. So anti-death penalty activists try and humanize methods of execution in the 1830s and in New York in 1835, Pennsylvania 1834, we see reforms that managed to outlaw public hangings — but this applies only to white defendants. So again we have this sort of two-tiered system of the death penalty where whites who are sentenced to death are given public… err, private hangings behind closed doors whereas, like you’re saying with black defendants, it becomes a spectacle — they’re executed in public in quite very gruesome, graphic ways to send a deterrent message out to other slaves: if you transgress the laws, this is what will happen to you. So, and that’s another theme that I pick out in my book is… we expect anti-racist and anti-death penalty advocates to be on the same side because of historical connection in racism and the death penalty, but there’s a certain… it’s an inadvertent consequence of anti-death penalty efforts that actually entrenched racial discrimination. So in this period of slavery, we end up with this two-tier death penalty system, don’t we? One death penalty for whites, one death penalty for blacks. And that’s created in part by anti-death penalty reformers in their efforts to outlaw public executions and their efforts to reduce the scope of the death penalty. And I wouldn’t say the anti-death penalty campaigners were to blame for entrenching racial discrimination, of course not; but it was an unintended consequence of their actions.

Robert Dunham 23:57

When slaves were being punished, the idea behind it was to make it as public and as harsh and as much of a spectacle as possible and not to make it a humane punishment. And when lynchings were carried out, the idea was to have it as painful and gruesome as possible so that it could create the largest amount of fear and to assist white supremacists in carrying out social control. Do you think that there’s any kind of residual psychology from… from slavery, from lynching that is now being manifest in the way states are resisting moving to less painful ways of carrying out executions?

Dr. Bharat Malkani 24:49

I think that for me, the ultimate psychology, psychological legacy, if you like, is this belief that some lives are disposable, some lives don’t matter. So the era of slavery, lives of slaves are disposable, and today with the death penalty, it’s the view that some people are disposable. It’s how we go about disposing of them that is the question. And… and I think you’re right, there is this residual legacy of, if we’re able, if we can justify killing people, then it doesn’t matter what harm we impose on them, about what suffering they feel when killing them or in disposing of them. So I think from the point of view of states, they’re certainly not going to give up on executions just because they’re struggling to get ahold of the drugs needed for lethal injections. I think many of these states would, would quite happily carry out gruesome methods of execution if they didn’t fear a challenge on the Eighth Amendment. Because we see, see the sort of, the principle of harsh retributivism, wanting a punishment that mirrors the harm caused by the person on death row. So their suffering should equate to the suffering that they impose. So yeah, I do see this residual legacy from the way in which slaves were executed and what is happening today with this backlash to the lethal injection saga, as I call it, and this feeling that we will carry out executions no matter what. The change in the Supreme Court might encourage states to carry out now, move towards more gruesome methods of execution, believing that there’s less chance of that challenge succeeding, and of course, it’s too early to tell at the moment, but we’ll have to see how that plays out.

Ngozi Ndulue 26:41

From what you call a radical abolitionist perspective, what— what role do you believe people who have been on death row or have faced the death penalty need to play in the modern conversation about the use of the death penalty?

Dr. Bharat Malkani 26:57

I think the role they have is an absolute vital one. It’s not just people who’ve been exonerated from death row, been on death row, but I think the role of a former executioner’s is also vital to this. So again, drawing on the history of slavery abolitionism, a central tenet of radical slavery abolitionism was to include the voice of blacks and former slaves in abolition efforts. And it was the voice of experience of former slaves, of fugitive slaves, that really imbued the slavery abolitionists with this radical spirit because they said that the issue isn’t just the enslavement of black people, it’s the mistreatment of black people writ large, it’s the unequal treatment of black people in society. They imbued the spirit of radicalism that said, slavery is just a symptom of a much greater issue which is, which is the degraded treatment of black people and lack of respect for the dignity of black people. And… when you look at the testimonies, the speeches, the words of death row exonerees, you see a similar theme emerging where well, they don’t just talk about the problem of sending an innocent person to death row. They also shed light on the causes of miscarriages of justice, and that includes racism within the police. The Clarence Brandley case, for example, really sheds light not just on the issue of an innocent person being sentenced to death, but it also sheds light on broader issues of race in the criminal justice system. We have Ray Krone’s case for example, which centered on dodgy scientific evidence, bite mark evidence. So that has shed light on the need to reform the use of scientific evidence in criminal trials, regardless of whether it was a death penalty case or not. Bloodsworth has pioneered DNA testing across the criminal justice field and so I think those… the voices of death row exonerees is absolutely vital not just for anti-death penalty efforts, but also for broader reforms to the criminal justice system. Anthony Graves talks a lot about solitary confinement for example, and that has shed light on solitary confinement, even for those who have not been sentenced. It was interesting to read, when I was looking at the historical literature on slavery and pro-slavery lobby, I write this in my book somewhere, that the pro-slavery lobby said that their greatest worry is not theirs or of radical abolitionists, the Northerners who are speaking out against us, their greatest worry were Southerners and former slave holders who might turn ranks because they are the ones, they would undermine the entire credibility of the slaveholders’ justifications for slavery. And there are some emerging voices from former executioners, Jerry Givens (unclear), for example, who are now starting to show how the death penalty has such horrific effects on the people who are asked to administer death sentences, for us to carry out death sentences, and that’s one of the things I write in my book is that the death penalty is not just about the person facing execution; in the same way that slavery was not just about the person who was enslaved, it also had an impact on the dignity of the person doing the enslaving, has an impact on the dignity of the people who carry out the death penalty. And so I think these voices of experiences, those people who have been on the front line are absolutely vital for abolitionist efforts. And they’re actually vital for ensuring that abolitionist efforts open the door for reforms across the criminal justice system.

Ngozi Ndulue 27:05

And what can we… kind of draw from that for this current moment? So we talked about the way that current disparities in the way that the death penalty is imposed really reflect the value that is put on black lives versus white lives and we also in recent years have seen some some pretty broad movements for criminal justice reform which have both had these radical elements but also those conservative arguments about cost, etc. Could you talk a little bit about kind of, like what the radical abolitionists halfway here and how that differs from some of what you’re seeing, and how what you see the historical record telling us about how to maybe make the most of the moment that we’re in where there is deep conversation about the role of race in the criminal justice system as a whole?

Dr. Bharat Malkani 31:25

One of the brilliant things - one of the many brilliant things - about Black Lives Matter and the work that Bryan Stevenson is doing at the Equal Justice Initiative, for example, is that they’re tying all these things together, the issue of lynching and police killings of black people and executions, for example. And they’re showing that, that you know, the issue of race and the death penalty is not unique to the death penalty, it’s part of the broader problem with the criminal justice system. And that makes anti-death penalty efforts much more radical because that brings the conversation about the death penalty into those broader conversations about the criminal justice system. So that’s why Black Lives Matter, for example, set up to tackle police killings of unarmed black people, but they make opposition to the death penalty one of their policy platforms because they see the link between the death penalty and other forms of injustices in the criminal justice system. But I think this is a very important time in the history of racial justice in the criminal justice system in America. And it’s one that is being seized upon by these organizations and that is taken forward. I think what’s becoming very interesting is the election of new district attorneys and prosecutors, such as Larry Krasner in Pennsylvania, where… there really… we’re getting prosecutors on board now who recognize these sort of issues and who are taking steps to address these sort of issues. And I think that’s also a very important moment in the history of criminal justice in America.

Ngozi Ndulue 32:53

And then a follow-up question about that, when you start thinking about prosecutors, you discuss some of the Supreme Court precedent that has limited the way that race is brought up in death penalty cases. And you’ve also talked about Justice Kennedy’s kind of… I think you termed as “radical abolitionist constitutionalism.” With this new Supreme Court and with the changes on this Court, do you see, kind of, signs of the United States Supreme Court being either a hindrance to this, this kind of radical abolitionist perspective continuing to move forward, or do you see, kind of, openings for that conversation to continue with the United States Supreme Court?

Dr. Bharat Malkani 33:42

Yeah… when I heard Justice Kennedy was retiring, and then we see Brett Kavanaugh replacing him, my instinct was to be quite pessimistic about this, but I always had this (unclear) quote in my head about how you have to be an optimist, and I tried to look for the optimism in all of this. It’s difficult in our current climate, but I think there are openings in the sense that we see Justice Sotomayor, for example, is sort of picking up Kennedy’s mantle, if you like, and taking it forward. I think with the Supreme Court you have to recognize that yes, of course there are five staunch conservatives now on the Supreme Court, but we’ve had conservatives on Supreme Court before who have, over time, shifted to the abolitionist position; after years of serving on the Supreme Court, they recognize that you no longer tinker with the machinery of death for example and recognize that the death penalty must be unconstitutional, Justice Blackmun being the most obvious example, Justice Stevens as well, Justice Breyer. A lot of these justices who start off upholding the death penalty but after, after a few years recognize that even they can’t uphold death penalty it must be unconstitutional. So you know, it seems unlikely at the moment when you look at the record of the current conservative justices on the Supreme Court, but we should never give up hope, really, as long as these arguments keep being put forward to the Supreme Court there’s always a chance that one of those conservatives will… will follow the line of Harry Blackmun, follow the line of Justice Stevens, of Justice Breyer, and come to recognize that they can’t tinker with the machinery of death anymore and that it must be unconstitutional. And in the meantime if the Supreme Court, the US Supreme Court isn’t, isn’t a viable alternative, state Supreme Courts are. We see this just last week in the Washington Supreme Court abolishing the death penalty mainly because of race discrimination. That builds on the 2015 case in Connecticut in State v. Santiago which also addresses the issue of race discrimination when striking out death sentences in Connecticut. So yeah, the optimist in me thinks there’s still the avenue of state Supreme Courts and state constitutions to make these arguments.

Robert Dunham 36:01

Well this has been a fascinating discussion and I wish… I wish that we could keep it going. But unfortunately, we’re out of time here. Professor, thank you for joining us on Discussions with DPIC. I look forward to the next things that you come up with on human dignity, slavery, and the death penalty.

Dr. Bharat Malkani 36:18

Thank you very much for having me.

Robert Dunham 36:20

Professor Malkhani’s book “Slavery and the Death Penalty” is available from Rutledge Press. To read more about race and the death penalty, visit our page on race on the DPIC website at www.deathpenaltyinfo.org. And to make sure you don’t miss an episode of Discussions with DPIC, subscribe on your podcast app of choice.