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Will the U.S. Finally End the Death Penalty?

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In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

A Presumption of Guilt

Lynching in America
Lynching in America
People of color in the United States, particularly young black men, are often assumed to be guilty and dangerous. In too many situations, black men are considered offenders incapable of being victims themselves. As a consequence of this country’s failure to address effectively its legacy of racial inequality, this presumption of guilt and the history that created it have significantly shaped every institution in American society, especially our criminal justice system.

Between the Civil War and World War II, thousands of African-Americans were lynched in the United States. Lynchings were brutal public murders that were tolerated by state and federal officials. These racially motivated acts, meant to bypass legal institutions in order to intimidate entire populations, became a form of terrorism. Lynching had a profound effect on race relations in the United States and defined the geographic, political, social, and economic conditions of African-Americans in ways that are still evident today.

Many African-Americans were lynched not because they had been accused of committing a crime or social infraction, but simply because they were black and present when the preferred party could not be located. In 1901, Ballie Crutchfield’s brother allegedly found a lost wallet containing $120 and kept the money. He was arrested and about to be lynched by a mob in Smith County, Tennessee, when, at the last moment, he was able to break free and escape. Thwarted in their attempt to kill him, the mob turned their attention to his sister and lynched her instead, though she was not even alleged to have been involved in the theft.

Records show that racial terror lynchings from Reconstruction until World War II had six particularly common motivations: (1) a wildly distorted fear of interracial sex; (2) as a response to casual social transgressions; (3) after allegations of serious violent crime; (4) as public spectacle, which could be precipitated by any of the allegations named above; (5) as terroristic violence against the African-American population as a whole; and (6) as retribution for sharecroppers, ministers, and other community leaders who resisted mistreatment—the last becoming common between 1915 and 1945.

Our research confirmed that many victims of terror lynchings were murdered without being accused of any crime; they were killed for minor social transgressions or for asserting basic rights. Our conversations with survivors of lynchings also confirmed how directly lynching and racial terror motivated the forced migration of millions of black Americans out of the South. Thousands of people fled north for fear that a social misstep in an encounter with a white person might provoke a mob to show up and take their lives. Parents and spouses suffered what they characterized as “near-lynchings” and sent their loved ones away in frantic, desperate acts of protection.

The decline of lynching in America coincided with the increased use of capital punishment often following accelerated, unreliable legal processes in state courts. By the end of the 1930s, court-ordered executions outpaced lynchings in the former slave states for the first time. Two thirds of those executed that decade were black, and the trend continued: as African-Americans fell to just 22 percent of the southern population between 1910 and 1950, they constituted 75 percent of those executed.

Probably the most famous attempted “legal lynching” is the case of the “Scottsboro Boys,” nine young African-Americans charged with raping two white women in Alabama in 1931. During the trial, white mobs outside the courtroom demanded the teens’ executions. Represented by incompetent lawyers, the nine were convicted by all-white, all-male juries within two days, and all but the youngest were sentenced to death. When the NAACP and others launched a national movement to challenge the cursory proceedings, the legal scholar Stephen Bright has written, “the [white] people of Scottsboro did not understand the reaction. After all, they did not lynch the accused; they gave them a trial.” In reality, many defendants of the era learned that the prospect of being executed rather than lynched did little to introduce fairness into the outcome.

Today, large racial disparities continue in capital sentencing. African-Americans make up less than 13 percent of the national population, but nearly 42 percent of those currently on death row and 34 percent of those executed since 1976. In 96 percent of states where researchers have examined the relationship between race and the death penalty, results reveal a pattern of discrimination based on the race of the victim, the race of the defendant, or both. Meanwhile, in capital trials today the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection continues to be widespread. In Houston County, Alabama, prosecutors have excluded 80 percent of qualified African-Americans from serving as jurors in death penalty cases.

The crucial question concerning capital punishment is not whether people deserve to die for the crimes they commit but rather whether we deserve to kill. Given the racial disparities that still exist in this country, we should eliminate the death penalty and expressly identify our history of lynching as a basis for its abolition. Confronting implicit bias in police departments should be seen as essential in twenty-first-century policing.


Source: The New York Review of Books, Bryan Stevenson, July 13, 2017 Issue

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