Almost 40 years since the Supreme Court relegitimized the death penalty; 30 since they said it’s OK that it’s racist
by Stephen Cooper

Sometime soon in the 31 states that have not abolished the death penalty, leaders at the highest levels of state government, men and women — mostly men and mostly white — will hold private, closed-door meetings, in which they will discuss the most secretive, most cost-effective, most media-friendly way to go about killing one (or more) of its citizens. Study after study shows that, more likely than not, this majority white group of deathly decision makers will be planning the killing of a man or a woman, though usually it’s a man, and usually it’s a black man.

These macabre meetings focused on sharpening the states’ machinery of death have been going on ever since the 1976 U.S. Supreme Court decision in Gregg v. Georgia. Gregg re-legitimized and restarted the wheel of state-sanctioned death — a wheel that stopped spinning four years earlier, in 1972, when in Furman v. Georgia, the high court declared Georgia’s death penalty statute (and by implication the death penalty statutes of 40 other states) unconstitutional; the Court held in Furman that the way the states were allowing juries and judges to decide who lives and who dies violated the 8th Amendment’s prohibition of cruel and unusual punishment.

But just four years later, after the Gregg decision sanctioned the states’ newly rewritten death penalty statutes, the wheel of death started spinning again. And ever since, overwhelmingly, the condemned strapped to that wheel (or gurney, quite literally) have been poor persons of color; most often their legal representation has been atrocious. Read famed capital defense attorney and Yale law professor, Stephen B. Bright’s disturbing article, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994), if you have any doubt about that.

Even more repugnant though, study after study shows that the poor, probably black, death row inmate will have landed on death row because he killed someone white. The most famous of these studies, the “Baldus” study, an extremely well-respected empirical study published in 1983, showed that even after taking into consideration 39 nonracial variables, defendants charged with killing white victims were 4.3 times more likely to receive a death sentence as defendants charged with killing blacks. The study also concluded, as quoted by Justice Powell’s decision in McClesky v. Kemp, that “black defendants were 1.1 times as likely to receive a death sentence as other defendants.”

That has to be unconstitutional, doesn’t it? It’s an Equal Protection Clause violation, right? Part of the 14th Amendment to the U.S. Constitution, the Equal Protection Clause, which took effect in 1868, after the Civil War, provides that no state shall deny to any person (including a person of color) “the equal protection of the laws.” If, as the Baldus study convincingly showed, a defendant is more likely to get the death penalty solely because the victim was white instead of black, that would be a per seviolation of the Equal Protection Clause, right?

Wrong. In a decision that New York University School of Law professor and celebrated Supreme Court advocate Anthony G. Amsterdam called, “the Dred Scott decision of our time,” the Court held that because defendant McClesky, a black man, could not specifically prove “purposeful discrimination” had a discriminatory effect on him in his trial — the Baldus study his lawyers presented to show that the death penalty was racist, and whose findings the Court notably did not dispute — were irrelevant.

McClesky was executed in 1991. Beforehand he said: “I pray that one day this country, supposedly a civilized society, will abolish barbaric acts such as the death penalty.”

Twenty-four years have passed since McClesky’s last words, but still the majority-white death councils convene — and still, even 24 years later, even with a black President in the White House — their top quarry remains the poorest, darkest, worst-represented defendants.

When will it end?

When will African-Americans, white Americans, and Americans of all colors demand that each and every politician they elect take action, and take action now, to put a stop to it?

Stephen Cooper is former D.C. and federal public defender. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, CA.