Georgetown Racial Justice Institute Director Diann Rust-Tierney on Reconceptualizing the U.S. Death Penalty as a Violation of Fundamental Human Rights

Robert Dunham 0:00

Hello, and welcome to discussions with DPIC. I’m Robert Dunham, the Executive Director of the Death Penalty Information Center. In this episode, we’ll be speaking with Diane Rust-Tierney, the Executive Director of the Racial Justice Institute at Georgetown University. Professor Rust-Tierney teaches a seminar at the Georgetown University Law Center on Human Rights Advocacy: Lessons Learned from the Campaign to End the Death Penalty, and served as the Georgetown Human Rights Institute Robert F. Drinan Visiting Professor for Human Rights for the academic year 2021 and 2022. Professor Rust-Tierney has more than 30 years of experience in federal legislative and executive branch advocacy on civil and human rights, including serving for 16 years as Executive Director of the National Coalition to Abolish the Death Penalty. Previously, she held several roles at the American Civil Liberties Union, including Legislative Counsel, Chief Legislative Counsel, Associate Director of the Washington office, and Director of the Capital Punishment Project. And we should also note that she served for many years on the board of the Death Penalty Information Center.

Diann Rust-Tierney, welcome to Discussions with DPIC.

Diann Rust-Tierney 1:03

Thank you. I’m happy to be here.

Robert Dunham 1:05

I’d like to start with a broad question that I think will provide us a jumping off point for discussing race, the US death penalty, and human rights. Each year, the visiting professor at the Georgetown Human Rights Institute gives a keynote lecture on human rights, named after Father Drinan, who was my human rights teacher back in the 1980s when I was at Georgetown. Your lecture was on Race, the Death Penalty, and the Foundations of American Democracy, and your thesis, if I understand it correctly, is that the issue of race in the United States — and the issue particularly of race in the US death penalty — is not so much a criminal legal issue, as, at its core, it’s a question of human rights. Would you tell us about that?

Diann Rust-Tierney 1:51

Absolutely. I think for a long time, the death penalty has been misclassified. We’ve approached it as if it was a normal public safety tool, notwithstanding the fact that you look at the fact that there is no relationship between safety and the death penalty, that we don’t see reduction in the crime or murder in places that use the death penalty. But that was never the lesson, it’s fiction. In my research and in my reading, I came to understand that the death penalty really was part of something much more terrible. It is part of the racial caste system in the United States. In other words, from its very beginning in history, from the very first time that Africans were brought to the United States to work, it was part of a legal and social system designed to keep various races in their place and to reinforce the institution of slavery. And the most important thing that the death penalty does, and did then, is to tell us the value of different lives. In other words, it places a different value on the life of a victim, depending upon their race, and it places a different value on the life of the defendant based on their race. That’s something we’ve seen historically, and so it was important to understand that the death penalty is not a tool of public safety, but it is in fact, a tool of racial and social oppression. And in that context, all of the concerns about human rights are elevated.

Robert Dunham 3:20

One of the things that I find most interesting is when we look at the way race and the death penalty are discussed today, we see the race of victim effects — a case is more likely to enter the system if there is a favored victim. Typically, that’s somebody who’s white; typically, that’s somebody who is a woman. When people then look at the numbers, they lose the historical context. Can you go through a little bit about how historically, the law used to prescribe different penalties, based specifically on the race of victims and race of defendants.

Diann Rust-Tierney 3:58

This is why it’s so important to place some of the challenges that we’re currently facing in a historical context. The Georgia Criminal Code was representative the way in which the criminal codes operated at the time. In Georgia, for example, the criminal code required a death sentence for any murder committed by a slave or free person of color. White people committed murder could be sentenced to life in prison if the conviction was based on circumstantial evidence or if the jury recommended leniency. The rape of a white woman by a black person carried a mandatory death sentence, but a white man faced a two to 20 year prison term for rape of a white woman. The rape of a black woman could be punished by a fine and imprisonment at the discretion of the court. We also saw this happen in the context of Jim Crow laws and laws that were preventing people from being able to vote. When we talk about the death penalty, we can’t divorce it from this complex web of legal oppression in which it operated, and so it’s no surprise today that it continues to operate in the way that it was intended. For a very long time, I actually thought that the racial disparities in the application of the death penalty were unfortunate byproducts that somehow connected to the legacy of slavery. But 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 value and whose lives are not.

Robert Dunham 5:25

One of the things that I find extremely interesting in trying to assess whether the statistical disparities that we see are a product of bias or just kind of accidental byproducts of the criminal legal system, is to take a look at the way punishments were administered before the United States Supreme Court decided that you had to have a separate penalty phase to determine whether somebody would live or die and that the death penalty had to be limited to murder. And when we looked at states like Virginia, and when we looked throughout the south, you see over and over and over again, if a crime did not result in death, then the only people who were being sentenced to death were African Americans. White people would almost never be sentenced to death for things like robbery or rape. And in fact, there is a direct relationship between whether a state was a slave state and the degree to which it was sentencing African Americans to death for crimes that look very similar to what we used to have lynchings for.

Diann Rust-Tierney 6:44

Exactly. There is this strange and close relationship between lynchings, which I call extrajudicial executions, and the death penalty. And we actually had historically, many instances where the death penalty and lynchings were kind of interchangeable, or are used interchangeably by communities. We had circumstances where public officials would actually promise a nascent lynch mob that there would be executions in order to get them to stand down. And oftentimes, you had instances where, if the if the mobs didn’t get their way, you might even have people taken right out of jail, and lynched. And so there has been this this sort of hand-in-glove relationship between lynching — again, which 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, who makes the big decisions, and the big decisions are, who deserves to live and who deserves to die.

Robert Dunham 7:51

In the period after the Civil War — essentially, the southern rebellion against reconstruction —we saw there’s this huge increase in the number of lynchings. And then that was followed by public revulsion and pressure, mostly from the northern states and from Europe. And it was followed after that, with an almost bizarre, by contemporary standards, public policy discussion about the need for the death penalty as a humane reform against lynching. It seemed to be a direct outgrowth of the public revulsion for lynching that you would accomplish the same goal, you would do it through the patina of an allegedly fair criminal legal system. I was wondering what your thoughts are on that.

Diann Rust-Tierney 8:44

I actually remember those arguments, I remember doing debates with people, and it was what we have to have to definitely because otherwise, people will take matters into their own hands. And, you know, I think the response to that is, is really to call it for what it is — because if people taking matters into their own hands, it’s again about asserting the rights of some people, if they don’t get their way, to become violent, and actually engage in extra-judicial activities, causing harm. And so I, again, it still puts the death penalty in this place where it doesn’t belong: that somehow, there’s an equivalency between justice and the death penalty. And I think once you take it out of that box, you know, you’re out of that argument. And it really gets to kind of the heart of where, you know, I think this conversation is going to go, which is that the idea that the government can humanely take the life of a prisoner, who is unarmed, who is literally helpless at the time, that that is a fallacy and that in fact, there is no way that we can do that that does not, in fact, become a human rights violation. We haven’t figured out how to get it right over all these many years. And so in some ways, the conversation about we have to have the death penalty, because otherwise people lynch people, isn’t the right conversation. It’s about what do we do to make people who are harmed whole. What do we do to make the person who has committed the harm, accountable in recognition of their humanity, because part of understanding the humanity of people is knowing that when you do something bad, part of being human, and part of being treated as a human, is being held accountable in a way that is restorative and reparative. And so I think that in many ways, this argument about well, we have to have the death penalty otherwise people will lynch is really a false flag. And what we need to recognize is that when the state kills, it has historically done that in a way that violates human rights. And so we have to move away from that and ask the question, what does justice and healing require to do that?

Robert Dunham 11:00

So how do we do that? How do we change the paradigm from the death penalty as a criminal legal issue to the death penalty as as a fundamental question of human rights?

Diann Rust-Tierney 11:12

I think we do it a number of ways. I think conversations like this are really important. For a very long time — and I was, you know, in this way of thinking as well — I accepted things the way they are. I accepted the framework that the death penalty was a tool of of law enforcement, a public safety concern or institution. And so I kind of engaged in that, that field, and answered the questions of what if we don’t have the death penalty what will we do about crime? Well, that’s not the question. So I think part of it is, is changing the framework of even advocates, how we talk about how we understand it. And a big part of that is understanding the history that I’ve touched on a little bit, and reading that history. And one of the really important books that I’ve really relied on in thinking about this among the number is Isabel Wilkerson’s book on Caste: The Origins of Our Discontent. And she makes a compelling argument about why the death penalty is not what we have said it is; that it is, in fact, part of this caste system. And I think there’s scholarship that’s being done now. Professor John Bessler has just written a book that really documents the way in which the death penalty has historically — and to this day — violated human rights standards, how is tantamount to torture and how it actually violates a number of existing human rights instruments. And so I think that continuing that scholarship is part of it. And then I also think it’s also showing people a different way. 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. So I think putting those sort of three pillars in place is a good step forward.

Robert Dunham 13:18

One of the things that I find really interesting is that when the United States looks outward, and it looks at the policies and practices in Iran, or Iraq, or Vietnam, or North Korea, China, you name it, it’s very easy for U.S. politicians, and Americans in general, to frame the issue in terms of human rights. What makes it so difficult for Americans to turn inward with a human rights focus?

Diann Rust-Tierney 13:51

This is an important time to be having this conversation, 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, of human rights and democracy and, really, self-determination. And so, I feel as though this is the time to have this conversation with Americans. You know, for a very long time, there was a sense that if we accepted an international or global vision of human rights, that we would lose something, we would lose autonomy, that we would lose our self-determination even. But the reality is that if you really understand human rights and you understand the moment in which we are in, in the world at this point, that we stand to gain a great deal when we embrace global human rights. You know, we had the hard lesson taught to us through the COVID pandemic, that we are in fact — not withstanding how we don’t want to be — we are in fact connected. We’re connected globally, that what happens in one country, in one city, in one community, one town, actually can have an implication across the globe. And so I think that we can build on that understanding that we are connected, that we have some common destiny, and recognize the importance of building a consistent human rights, global standard that elevates our rights here in United States and abroad. So I think this is a time to have that conversation. And I think I’m encouraged to see a young generation of people who are seeing this global connection. They’re seeing it through an understanding of what happens around our climate. They’re seeing it in sort of embracing diversity and differences among people. And so I think this is a great time to have this conversation. And so I think if we can, we can build in the United States consciousness and education around human rights and the value that it brings to us, and how our consciousness around human rights can elevate human rights around the globe and we are connected, I think there’s a way of really moving forward. And this is something that many of our partners of the European Union have understood for some time as they’ve supported, morally and strategically, efforts to engage the United States in a real conversation about the importance of having a consistent vision of human rights. And so I think that the time is now and these conversations are really important, and I have some hope that we can, we can advance this goal at this time.

Robert Dunham 16:37

One of the challenges that the social justice movement faces when it deals with death penalty and race seems to be that, as we look around the country, there are very strong cases of innocence, that the courts seem to be doing gymnastics to try to avoid addressing. I’m thinking of cases like Julius Jones in Oklahoma, Rodney Reed in Texas, Pervis Payne in Tennessee, where there is powerful evidence of the prisoner’s innocence, and the courts just seem to be looking the other way. I’m curious as to your perception about how the courts in the United States are handling the issue of race and the death penalty today.

Diann Rust-Tierney 17:24

One of my great disappointments was the Supreme Court decision in McCleskey versus Kemp. I had actually just started working at the ACLU, and was pretty new in the death penalty, and when I saw the case, McCleskey versus Kemp, which was the case out of Georgia which challenged the racial disparities in the application of the death penalty with compelling evidence, I said to myself, the justices live in the world. This will be the end of the death penalty and my work on the death penalty will be short lived, and I’ll be able to move on to something else. To my surprise, at the time that you know, it didn’t seem that the court lived in the world because they looked at that compelling evidence of racial disparity where defendants were almost more than four times likely to get the death victim was white and where there was evidence that, especially if the defendant was black, that was much more likely the death penalty would be imposed. In fact, that was sort of the the single most defining factor in the determining whether you would get the death penalty, and that strong data — award winning data — was coupled with compelling historical data that I touched on where we saw this pattern of justice had its origins in our law and practice. But notwithstanding that, the Court said, we’re not prepared to say that this level of evidence is enough to say that the risk of the death penalty being imposed in an unlawful manner, a discriminatory manner on the basis of race is enough to make the death penalty unconstitutional. And so the court has — in my view, that was a big miss. And Justice Powell later said that that was one of the things that he regretted most in his role. So that created a not only a problem for raising race claims with the death penalty, it created a problem with, you know, racial challenges to sentencing, generally. Which is again, one of the courts rationales, they were, as one of the justices said, afraid of “too much justice.” If we fix this, then we’ll have to fix all the other problems. And the court’s efforts to tinker around the edges of other things regarding race like discriminatory exclusion of jurors, it’s been middling. And so, at this level, I think that we have to really focus on making sure that the policies change. We’ve made enormous progress in relegating the death penalty to a handful of places. I think that work has to continue. We have to change the decision makers in the states who are continuing to either refuse to repeal the death penalty or to limit the scope. And we have to also, to the extent that these judges are elected in many of these states, we have to engage in the process to make sure that people who are elected to make decisions in these cases are people who are committed to justice and equality, and are not prepared to close their eyes to blatant discrimination, it means we have to get engaged in the greater political process of the federal, national political process to make sure that federal judges that are appointed are committed to fairness, and equality, and a justice system that does not place a different value on the lives of people based on their race, their skin color. And so I think we have to take a broader perspective, which is part of what I’m teaching the students at at Georgetown, the modern human rights lawyer has to have a number of tools, we have to be in the courts, but we also have to be in the communities, we have to be doing public education. And we have to some of us be engaged in the political process, so that we have a playing field where we can advance human and civil rights.

Robert Dunham 21:12

One of the things we see with the discussion of human rights worldwide, and particularly when it comes to the death penalty, is the relationship between autocratic governance and extrajudicial killings, the use of the death penalty against disfavored groups. And you mentioned a couple of things that seemed to be — not necessarily a pattern, but a reflection of that same type of of distinction between a democratic government and autocratic government within the United States itself. When we look at where the death penalty is being carried out, it seems to be in states that are emphasizing secrecy instead of transparency. It seems to be in states in which prosecutors are most aggressively trying to bar African Americans from jury service, either through regulations and rules that limit who can serve on a jury or the discriminatory use of jury strikes to keep people off of the jury. And we’re seeing statewide officials stepping in to try to overturn the results of local elections in which reform prosecutors have said that they don’t intend to seek the death penalty or are going to seek the death penalty more sparingly. Do you see that as a parallel to what’s going on globally, with the use of the death penalty in more autocratic countries, and its abandonment in most of the world’s democracies?

Diann Rust-Tierney 22:47

100%. Again, one of the one of the challenges of this little pigeonhole that we put the death penalty in is it’s sort of it has escaped by a real close analysis. And the reality is that, as you said, the death penalty is a tool of oppression. Uutocrats and anti-democratic people, and dictators use death as punishment, and they wield it where they will, and how they will, and that understanding is really important. And you just, you know, the way you put it together was really compelling. Because there is a connection between, you know, states that are trying to oppress a significant segment of their population, through voter suppression through a whole range of things to to maintain power, the death penalty is a tool of power. And it has been done, and used that way, historically, against political enemies, against the people who they want to scapegoat for some problem in society that the people in power don’t want to address. And I think that putting together in the way that you have, it’s really compelling. And I think more people need to be thinking about that. But as you look globally, that is clearly the case. This is one of the arguments I would try and make, sort of early on but but when these problems didn’t appear to be as stark as they are now, it didn’t seem to, to land as well. But I think putting together, we are in a global struggle for democracy, self determination, and governments that are committed to human rights. We know we have some unfortunate examples right now: in Iran, there are people being executed, who protested at the World Cup, the violations of human rights against women. These are tools of autocrats. And so I think it’s this idea that this is somehow connected to some kind of states rights or crime controller, we’ve got to get rid of that idea. And so it’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 dictators and in that stark contrast, you have to oppose the death penalty. So I think that that putting these pieces together — again recognizing that the United States is not an island, that that not only does what we do have an impact on other parts of the world, but we’re not immune from the other risks and ills of the world to our democracy. And we’re seeing that right now, we saw that, in the recent report of the January 6 committee: we are as susceptible to threats to our democracy and human rights as, as any other country. We have some strong barriers that held, but you have to understand that we have to fight for democracy. And part of that is getting rid of the death penalty because it is a tool of the autocrat.

Robert Dunham 25:41

One of the opportunities that the United States had to participate in the global movement away from the death penalty was a vote just last week. We’re talking now on December 21, in 2022, there was a vote in the United Nations one week earlier on a global moratorium on the use of the death penalty. And we have a president who campaigned for office, one of his platforms was the intent to end the federal death penalty and provide incentives for states to do the same. Here we have a vote in the United Nations at a time that Iran is executing peaceful protesters, and the United States votes against a resolution that is approved by a record 125 nations. What is the impact in terms of being able to enforce human rights globally, of the United States taking that kind of action?

Diann Rust-Tierney 26:45

Well, it’s very disappointing. And on a number of levels, and I think it again, it shows this, where we need to evolve in our thinking. I believe that the rationale that the United States would argue for that vote was sort of protective of this notion of federalism, that the United States per se, could not condemn a practice, that some of the states were still engaging. And so out of that sort of protective federalism kind of perspective, it made sense for the United States in that line of thinking, to take that position, and notwithstanding the position of the President or into the administration on this. So I think that was kind of thinking, and what I think was missed was that point that we were just talking about, which is that this is not about this is nothing bigger than this, whatever this federalism is, and even and even so recognizing this federalism right to continue to have the death penalty really was born out of this federalism right to continue to have slavery that same, that same notion was the idea that well states, we have some standards for some people, but then we get to do some things that we want to still do. So I think was terribly misguided, and I think that’s part of the work we have to do to recalibrate that way of thinking, and to also make sure that at the national level,our leaders are thinking about not only the global impact, but in terms of our standing advancing wise, but the global impact in terms of like, really, what you’re doing is feeding and strengthening the hand of the very autocrats and dictators that we are trying to in other contexts oppose. So, so that was unfortunate, but it’s an element of the work that we have to do. The good news is that we do have as many countries as we do have moving against the death penalty, and that will continue. And they will continue to talk to the United States and try and bring us along. And then I think here we have to do the work that we’ve talked about, just to engage the American public in a discussion about human rights and create that as a a value, which will have two effects. Number one, if we can continue to engage the American people, continue to to make sure that we are electing representatives who understand these issues, we will ultimately change, I believe these handful of states and jurisdictions are still insist on killing people. And then we won’t have this problem. So I think we have to, it’s back to the same work, the public education at the political level, and the public education at the grassroots level with the American public.

Robert Dunham 29:15

I have one one last question. I’d like to run by you. And it’s this, we saw it, we talked earlier about how the death penalty was presented as a humane alternative to lynching. And it may be another generational question, but with the rise of mass incarceration, we see life without parole or a death in prison punishment being portrayed in some circumstances as a humane alternative to the death penalty. If you look at capital punishment from a human rights perspective, a punishment of life without parole is unknown to most of the world. And I’m curious as to your perception of that discussion: is life without parole the Humane alternate under two capital punishment? Is that the direction that people should be going in their movement to try to abolish capital punishment?

Diann Rust-Tierney 30:07

You know, I think part of the challenge, again, that we face is that is the fact that the death penalty has been compartmentalized — a law enforcement tool. And that’s been divorced from this bigger conversation that you just touched on of mass incarceration. And the reality is that we need to redo the whole system, that the way in which we respond to crime and violence and harm that’s done to people, is really still grounded and still very much influenced by this racial caste system. Another reference I would recommend to listeners is Michelle Alexander’s book, The New Jim Crow, which it talks about, again, how this myth that these tools that we’re using, mass incarceration, life without parole, so I think that’s a context in which we need to be looking at all of this. These, all of these systems need to be reexamined because in fact, they’re not working. The mass incarceration, locking people up for for life doesn’t work. But it does harm communities, it does harm families, it does create generational poverty, it does keep people disenfranchised. And so we have to we I, my argument to that is, is yet no, we’re not in this game where we’re treating one evil for another. We’re in a game where we’re going to say, how do we keep people safe and healthy? What is the data that supports our understanding of that? And what are the things that we are trying to do to do that, and in that conversation, that we’re not trading the death building for life, that role, we’re doing things that keep people safe, we’re dealing with trauma that’s unaddressed, we’re feeding children that are hungry, we’re supporting families that are that are undergoing trauma that need support. And we’re and we’re making it possible for everybody to succeed. And in that context, the impulse I feel sometimes for these harsh punishments comes out of a feeling of, of loss and hurt, and I’m not being taken care of. And so some people even call it compassion fatigue. But if we have people who feel as though they are getting a fair shake, if they are taken care of, they don’t fear for their children’s future. It feels to me like a situation where we can have a real conversation about how do we really hold people accountable, and also make people whole? And that’s the new vision, you know, and there lots of people were already working on that, that people working on restorative justice, there re people working on systems that actually support victims. Those are the conversations and what’s happened is we’ve been hoodwinked by people who throw something like the death penalty around or life without parole around, to use it to keep us afraid of each other, to use it to stoke divisions around race, to use it to, to maintain a racial hierarchy in the United States. And we’ve got to push those people aside, and have the real conversations and build the kind of society that we want. So no, we’re not trading the death penalty for life without parole B]because that’s not even the question. The question is, what do we do to make people whole? And neither of those things answer that question.

Robert Dunham 33:10

With the dangers that that we face today? Are you optimistic, that we’ll be able to go into that direction?

Diann Rust-Tierney 33:16

I am. One of the things that’s been most inspiring for me is working with these young law students and undergraduates. There is a hunger for justice, there is a an energy and creativity to bring all the things to bear that we can: law, community organizing, art, a range of things. So I am optimistic. I mean, that’s one of the reasons I enjoy being at the Law School. The students, I tell them, you give me life, because their energy in the face of, you know, when you’ve been doing this work for a while, you’ve seen these arguments over and over again and you get tired, they’re not tired. So I have a lot of hope and when I look at all the progress that was made through the young people around Black Lives Matter, I mean, that’s our future. And so what I hope to do, and what I think these conversations can do is to help to give them the benefit of our thinking, some of the historical context, some of the hard lessons that we’ve learned, and then they’ll let them go. So I’m very, very optimistic that we will that we will get to where we need to be. We’ve made enormous progress in a short period of time, and so I am optimistic.

Robert Dunham 34:26

Professor Diann Rust-Tierney, thank you for joining us on discussions with DPIC.

Diann Rust-Tierney 34:30

Thank you.

Robert Dunham 34:31

To learn more about the Georgetown Racial Justice Institute and the Georgetown Human Rights Institute. Visit their websites at rji.georgetown.edu and law.georgetown.edu/human-rights-institute. To learn more about the death penalty, visit the Death Penalty Information Center website at deathpenaltyinfo.org. And to make sure you never miss an episode of our podcast, subscribe to Discussions with DPIC on your podcast app of choice.