(The ongoing history of the American Prison-Industrial-Complex and capital punishment are not fully told without an understanding of their design and function as State weapons in the war against poor people and non-Whites.
I reach out to author and sociologist R.J. Maratea in 2021, around two years after his book, Killing with Prejudice: Institutionalized Racism in American Capital Punishment, is published.[i] I’m writing to Maratea during the Republican Party’s newest public relations obsession with identity politics, this time a national campaign to misunderstand the meaning of the term “critical race theory.” I’m hoping to interview Maratea during a time and in a political climate in which I feel his book is as relevant as any author could dream his or her book might become within two years.
He promptly writes back: “Matthew, so you’re the one who read my book.”
Killing with Prejudice focuses on the life and case of Warren McCleskey. McCleskey’s life and death can be viewed as a character study in the experience of institutionalized racism in the second half of 20th Century America. Maratea looks at the legal history of the death penalty up to the Supreme Court ruling in McCleskey V. Kemp, and describes how that ruling reinforced and further embedded discrimination into the American legal and prison system more broadly.[ii]
Despite conclusive evidence that Blacks received the death penalty disproportionately to Whites when all other factors were equal, and that Blacks were sentenced to death at higher rates when the victim was White than Whites when victims were Black, the Supreme Court decided to execute Warren McCleskey and keep the death penalty in place, thus further institutionalizing racism throughout the legal system more broadly.
Killing with Prejudice is a history of the function and practice of death penalty legislation in a larger system of social control and physical domination of poor and Black Americans through the Prison-Industrial-Complex.
In early August, Maratea interviews for a series with HTR on a number of topics relating to the long and ongoing history and future of the death penalty, mass incarceration, and institutionalized racism.)
I always opposed the death penalty, even when I was young. Sometimes, when I talk to my mom now, she’ll tell me I always just thought it was wrong.
I’m primarily a media scholar, a constructionist media scholar, but when I got to New Mexico State, one of my colleagues there was David Keys. David Keys is a death penalty scholar, an expert witness, does a lot around the death penalty. That’s when I shifted from just being an opponent of the death penalty to a scholar of the death penalty.
You have to take on a different mindset as a scholar, because the fact that I opposed the death penalty has to be distinct from my scholarship. Keys helped me see that, research-wise.
So, I was always interested in the death penalty, but not as a scholar until I started researching for this book.
Describe what that difference looked like for you in the process of working on the book.
The death penalty is a particularly emotional topic for people, fundamentally rooted in your particular moral perspective on society, but you have to separate yourself from that. I don’t mean in a value free sense. You can’t be value free. You fundamentally are influenced by how you see the world. But, you have to approach it fairly.
Teaching helps, because when you teach a topic, you have to present it in a way that covers all the different issues, perspectives, and by the end of the class, sure, the bulk of the material shows the death penalty is bad, but that’s because that’s what the bulk of the work shows.
You have a little more leeway when you write books, but when you’re researching, you can’t be predisposed to a particular outcome, and you have to be prepared for the possibility that there will be outcomes you don’t like, or that go against what you expect. You can’t let your moral feelings guide you, and it can be really tricky.
There was the famous “Ehrlich analysis,”[iii] which showed that the death penalty was a deterrent, but Ehrlich really structured his research to produce a deterrent effect that wasn’t there. You have to be really careful about that.[iv] Sometimes it’s hard, but that’s a challenge all researchers take, so you have to be open minded about how you approach the subject, scholarly in researching and defending it.
Let’s begin by discussing how mass incarceration impacts the poor in America.
Steven B. Bright wrote a famous piece on how the death penalty is for having the worst attorneys, not for committing the worst crimes, to paraphrase him.[v]
People who are poor often times don’t have the luxury of helping to research their own case, can’t get great attorneys and have to get court appointed or public defenders, who’re overloaded with very heavy caseloads, and when they have cases that there isn’t much chance of winning, their natural inclination will be to seek a plea bargain, which of course compels a poor defendant to plead guilty even if they didn’t do it.
Poor communities, communities with fewer educational opportunities, fewer jobs, are targeted by police. It’s a snowball effect. We could go on. There is always an intersection between economic inequalities and other inequalities.
That’s not coincidental: red-lining minority neighborhoods, sticking Indigenous people out on reservations. Poor Whites, for that matter, devalued White citizens, are also discriminated against. Often the conversation is White-Black. White is privileged compared to non-white, but not all White is equally White, and Whites are often discriminated against by other Whites.
And if you’re poor and White in an American court room, your chances are probably worse than if you are a rich person of color.
Sure, because you have the economic means to defend yourself if you’re not poor.
Cameron Todd Willingham, if he was still alive, would agree with you.[vi] He was executed for an electrical fire, which he was convicted of doing on purpose to kill his kids. It’s a stunning case. The burn patterns were used as evidence against him, because they were in the shape of a pentagon, even though they were toward the window. They said his Iron Maiden posters were satanic. His court appointed attorney basically said he was guilty in the trial. Again, poor White.
However, that does not minimize the distinction between poor White and poor non-White. In the death penalty, the discriminatory application against Blacks is staggering, particularly when the victim of the crime is White.
None of this is by chance.
The structure of our prison system is designed to exploit poor people. Decade to decade, you will see about a 65% recidivism rate, somewhere in that area, and you can ask, “How can it always be there?” You go through economic booms, periods of depression, and it varies a little, but it’s always right about there.
Jeffrey Reiman’s influential book, The Rich Get Richer and the Poor Get Prison, roots the recidivism rate in the prison industry in how much money is involved.[vii] Politicians gain power. Corporations get rich. However, to maintain that system, you can’t let crime rates get too high, because then the system is delegitimized, and you also can’t let them get too low, because then you don’t need the system.
So, you need this revolving door within the Prison-Industrial-Complex, so you design a system that lets out poor people just to let them back in, and keep the recidivism rate in that 65% range, where it’s high enough that people can be easily manipulated to fear crime, but it’s not high enough for the prison system to be delegitimized.
If people do start delegitimizing it, you go, “Well, let’s put more money into policing,” but never prisons, just policing. And why put more money into policing? To put more people in prison.
You’re never going to get people to agree to put more money into prisons, even though that would lower recidivism, because you would be able to personalize the rehabilitative programming, but reducing recidivism is not what’s wanted.
In the book, you begin with Gunnar Myrdal’s, An American Dilemma,[viii] and argue that Myrdal’s “‘principle of cumulation’ overlooks the fact that targeting only one aspect of a system of structural racism would fail to help the Black underclass […] unless there was a concerted effort to address simultaneously all of the interlocking problems of political powerlessness, jobs, education, and crime,” and that, “Warren McCleskey’s life exemplified this paradox of social life for Black Americans” (p.19).
For readers new to these subjects, let’s take them one at a time. First, talk a little about Gunnar Myrdal – who he is, what the “principle of cumulation” was, and why the “principle of cumulation” failed to help the Black underclass.
“Principle of cumulation” is the idea that incremental advancement would cycle into more and more advancement over time, and eventually reach a point at which it would really create improvement, but slowly, over time.
It’s similar to Booker T. Washington’s “Atlanta Compromise,” the idea that, “Well, we’re not going to get everything, but maybe we’ll get Black schools.”[ix]
Of course Du Bois’s point was: “You’ll get a little, but they’ll always give you enough to feel satisfied, never enough to make progress,” and this becomes the problem of accumulation, because incremental advancement over time does not accumulate into progress, as we’ve seen in practice.
Critical race theory addresses this problem:
The “principle of interest convergence” in critical race theory means that Whites in power will accept Black progress so long as it also benefits Whites.[x] Well, that’s not really progress, but it becomes part of Myrdal’s vision of progress, and that’s part of the problem.
He was thinking that, over time, Blacks would keep accumulating advantages, and eventually you’ll have accumulated so much that you’ll have the same opportunities, but it didn’t work out that way.
At the beginning of segregation, those advantages looked like, “We’ll give you schools, but you’re on your own. We’ll give you water fountains, but you can’t drink ours. You can sit on the bus, but you have to sit in the back of the bus.”
Then, when segregation wasn’t allowed anymore, when you reach the Civil Rights Movement and you can’t have racism written into your state constitution anymore, can’t have racism in your corporate bi-laws, cannot overtly discriminate, you might think, “Oh, well, that’s progress,” but the system still functions to harm devalued people.
What’s insidious about structural racism is that it reproduces the same outcomes even when we’re attempting to be progressive.
In Myrdal’s defense, in 1944, he couldn’t have foreseen the idea of structural racism the way we understand it now, so it’s understandable that he would write these two volumes, arguing that we will overcome discrimination, but incrementally, and that making reforms would help us understand, as a society, that Blacks are not inferior. Well, those reforms did do that, and those communities are still repressed.
By that point, we were already starting to see it, but in 1944, the “principle of cumulation” was an idyllic vision.
However, if you were reading the Black press back then, a source like The Chicago Defender, they weren’t buying any of it.
The “principle of cumulation” was an optimistic, idealistic view, but time has proven that racism is too entrenched in American life, and no matter how much we advance as society, it’s still there, and just takes on different forms.
Describe Warren McCleskey’s life: Who he was, and how his life exemplifies the failure of Myrdal’s thesis to account for structural racism.
McCleskey grew up in the segregated south, in Georgia. He experienced segregation and he experienced economic hardship his whole life.
During a lot of his formative years, his mother was married to his stepfather. To make money, they had gambling in their house. They did moonshining. His stepfather was an alcoholic and was violent. He would beat McCleskey’s mother. He would physically abuse McCleskey.
So, living in the south, in Georgia, as a poor, young, Black American man, in an abusive house, a lot of the deck is stacked against you.
One day, for example, McCleskey came home from school, and a few minutes before, his mother had shot and killed his stepfather, because his stepfather was being violent.
However, Warren McCleskey really did try to make his life work economically.
He married his high school sweetheart. He worked hard. They had a daughter. One of his most promising jobs was at an airplane factory, manufacturing planes. He had a pretty good job, then the factory was closed down.
So, he’s struggling to make ends meet with a young daughter and a wife. He’s constantly afraid that his wife is going to leave him, because they just couldn’t get money, and she wanted a more comfortable life for her daughter.
So, he fell into this trap of robbing places.
In media and cultural accounts, we frame crime as the product of individual choice. But, again, for Warren McCleskey, you cannot remove the decisions he was making to rob places from his life’s circumstances. I mean, you could, but you’d just be denying reality. It’s not stuff he “wanted” to do. He wasn’t a “bad guy,” per say.
He really tried to make his life work.
People might read this and think, “Oh, well, you’re making the offender into the victim,” but the distinctions between the offenders and the victims in these dichotomies are often really gray. This was a guy who was really trying to make his life work, who was really afraid that his life was going to fall apart.
He committed a string of robberies, not violent, but a string of property crimes.
When he got out of prison, he was still committed to making enough money to make his family life work, and he got hooked up with a bad crew, who convinced him to come along on some other robberies.
When the police got to the Dixie Furniture Store and Frank Schlatt was killed, Warren McCleskey was arrested at the front of the store.
The people he was with were in back getting the money. McCleskey was the one in the front. Reportedly, he was the one who shot Frank Schlatt. Whether he did or he didn’t, he was there. It’s not entirely conclusive that he was the shooter, but there’s plenty of evidence to suggest he might’ve done it. I’m not excusing that. He was part of the crime. They took people in the store and tied them up and there’s no excuse for that.
However, decades after Gunnar Myrdal wrote about “the principle of cumulation,” after working hard all his life, this is where Warren McCleskey was. How much accumulation really happened?
Some did: There was no more segregation. He was able to work in a manufacturing facility alongside working class White people, but how much progress was really made?
Economically, McCleskey’s situation was no better than his family’s had been decades earlier, so there was progress, but there wasn’t really change.
So, McCleskey is an anecdotal example of how the accumulation of advancements seems great, and in theory, seems to make perfect sense, but really, instead we’ve found that you can accumulate advantages over time and still be repressed, which is somewhat fascinating, that you can keep conceding advancements to people while continuing to repress them in new and ingenious ways, at which point the repression becomes increasingly systemic, rather than overt.
If incremental accumulation was working to the degree that Myrdal thought, maybe McCleskey wouldn’t have been in that situation.
And throughout McCleskey’s life time, mass incarceration exploded in this country. One might argue that while he wasn’t as likely to be called a racial slur or experience segregation, he was more likely to be put in prison than in decades before …
Post World War II, “White Flight” to the suburbs resulted in police targeting urban areas that are far more predominantly non-White and poor White than in the past, which helped feed into that too.
But, yes: The idea now is, “You’re not arresting somebody because they’re Black. You’re arresting them because they’re ‘criminal,’” and as long as you create that narrative that the arrests are because of criminals, any disparity in arrest or incarceration rates can be framed as not “discriminatory,” because “disparities” aren’t illegal. “Discrimination” is what’s unconstitutional.
As long as you claim that a “disparity” is not a result of “discrimination,” it’s completely legal. “It’s criminals. We’re only arresting people where the crimes are happening.” “Well, you’re also not policing the suburbs,” and we know where most crime happens in the suburbs: Indoors, where it’s not seen, whereas urban crimes happen more often in public, and it’s more visible.
But, there have always been these disparities.
It is not a coincidence that the birth of mass incarceration in America, albeit not in its current iteration, starts with slavery.
[i] R.J Maratea, Killing with Prejudice: Institutionalized Racism in American Capital Punishment, New York University Press, 2019
[ii] See case here: https://www.law.cornell.edu/supremecourt/text/481/279
[iii] Isaach Ehrlich, “Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence,” Journal of Political Economy, Vol. 85, Number 4
[iv] Ethan Cohen-Cole, Steven Durlauf, Jeffrey Fagan, Daniel Nagin, Reevaluating the Deterrent Effect of Capital Punishment: Model and Data Uncertainty, U.S. Department of Justice, Office of Justice Programs, December 2006.
[v] Steven B. Bright, “Counsel For The Poor: The Death Sentence Not For The Worst Crime but For The Worst Lawyer,” Yale Law Journal, Vol. 103, 1994.
[vi] Innocence Project Staff, “Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas,” The Innocence Project, 9/13/2010
[vii] Jeffrey Reiman, The Rich Get Richer and The Poor Get Prison, U.S. Department of Justice, Office of Justice Programs, National Criminal Justice Reference Service, 1995
[viii] Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy, New York: Harper & Row, 1962.
[ix] Booker T. Washington, “Address By Booker T. Washington, Principal Tuskegee Normal and Industrial Institute, Tuskegee, Alabama, At Opening Of Atlanta Exposition,” 18 September 1895, Courtesy of Library of Congress
[x] David Shih, “A Theory to Better Understand Diversity, And Who Really Benefits,” National Public Radio, 4/19/2017