This post is part of a yearlong series called, 50 Years of Failure, which looks at the 50 years of mass incarceration.
In an excellent book, Let the Lord Sort Them by Maurice Chammah, Chammah looks at the rise and fall of the popularity of the death penalty in the United States in recent history and specifically at the state of Texas. Chammah follows the lives of two people – one a defense attorney/activist and the other a prosecutor turned judge – and he shows the rise of popularity for the death penalty through the late 90s and then the subsequent fall in its popularity that continues today.
Chammah rightly reminds readers that the United States has always used the death penalty in an effort to deter crime, however much that failed. But the death penalty has also been used historically as a means of maintaining the social, economic, and political status quo. This occurred through public executions, which became a kind of social amusement. Crowds would gather and even sermons would often be preached to bless the event and to ward off future lawlessness.
State executions first became private in 1924 in Texas though they continued to be a source of public gathering and certainly social and political control. In a brief period of liberalism on the Supreme Court under the leadership of Chief Justice Warren (a Republican appointed by a Republican president), the Court ruled on June 29, 1972 in Furman vs. Georgia that the death penalty was unconstitutional.
But that was only a brief period of respite. Beginning under Chief Justice Burger who succeeded Warren, and then continuing rapidly under Chief Justices Rehnquist and Roberts, all of the gains in securing constitutional rights under Warren have been severely eroded. Another book that reports this and which I highly recommend is Presumed Guiltyby Erwin Cherminsky. And a significant part of the rollback of the rights of those accused of crime was the reversal of Furman and the reinstatement of capital punishment in 1976.
Chammah documents the rise of the death penalty from 1976 through the late 90s. While the Supreme Court determined that the death penalty was indeed constitutional they failed to understand or acknowledge the distorting impact of the inherent racism and classism that characterizes the criminal justice system. Just a few years into its implementation after the 1976 decision the death penalty was found to be implemented far more likely if the accused was Black and the victim was White.
Chammah’s research showed that the way media and politicians – in both parties – have so demonized those accused of violent crimes, the natural result has been the peeling away of the rights of those accused of crimes. Through various Supreme Court decisions once Burger took over the Court (and once again this is expertly documented in the book, Presumed Guilty), things like the effectiveness of defense attorneys, or the blatant racism from judges or prosecutors, or even questions of innocence all became procedurally more difficult to raise to appeals courts. And in so doing, current use of the death penalty looks increasingly like the lynchings of the late 19th and early 20th centuries. Listen to one closing argument of a prosecutor Chammah recites from the 1970s:
The whole community is in fear of them. Every one of us who puts bars on our windows, and loaded our guns, and every one of you ladies who has refused to go to the convenience store after dark, and every one of you men who refuse to let your wife go out at night, you’re a hostage.
The prosecutor isn’t detailing evidence or questions of innocence or guilt; they are stoking racial fear to bring about wholesale convictions on “them.” And “them” are people of color.
As someone who spent many years in Texas fighting for the abolition of the death penalty and who lived there during its rise in popularity, I can attest to the fact that the death penalty did not deter crime nor did it provide healing and closure, as supporters so often proclaim. The death penalty’s sole purpose is clear: vengeance. Challenges to the inherent racism and classism of the death penalty (and criminal justice system as a whole) have been dismissed out of hand by the Supreme Court. It does not matter that the system is racist because the system is not intended to be fair. It is for the purpose of vengeance as to why we arbitrarily execute some of our citizens.
Thankfully, the book ends with more hope than I have expressed here. Change is happening. More and more states have either abolished or established moratoriums on the death penalty. But we cannot be rid of it for good until we transform the purpose of our criminal justice system from one of vengeance and punishment to one of healing for victims and humane accountability and restoration for those who commit crimes. Our work is before us.