(In the second part of a conversation with Hard Times Review on institutionalized racism in mass incarceration and the death penalty in America’s war against poor people, author and sociologist R.J. Maratea discusses the history of capital punishment legislation and its broader implications for the Prison-Industrial-Complex.)
In Killing with Prejudice, you write that in death penalty trials, “being a Black defendant, when all other variables are held constant, is in itself an aggravating factor, particularly when the victim is White” (p. 52).
Jury research is not easy, but we do know a little from jury research.
First off, before getting to the jury research, one important detail in America is that Whites’ support for the death penalty increases when they learn that it discriminates against Black Americans.[i]
In theory, if we were to account for that with a jury, when a prosecutor is seeking death and the alleged offender is Black and the victim is White, that could tie into a greater likelihood of a conviction.
Another bit of research we know is that criminal defendants with stereotypically “Black” features are more likely to be convicted. In and of itself, that suggests that looking “Black,” looking how a White person might envision a Black person to look, is in and of itself an aggravating factor. Simply looking “Black” increases the likelihood of conviction when all other factors are equal.
Economic status, facts of the crime, everything else being equal, just looking like a Black person in the minds of jurors increases the likelihood of conviction. So, when you take that in combination with other factors, such as not being able to afford cash bail, for example, which is the biggest indicator of whether or not someone is likely to be convicted, or coming into a court hearing in a prison jumpsuit or shackles as opposed to wearing a suit, all these factors then tie into each other and jurors are going to form impressions of you the first time they see you, and that’s going to influence how they see the case, and the fact is: In America, looking like a Black person is one of those factors.
You also write about how discrimination in the death penalty is most extreme when the victim of the crime is White, rather than simply when the defendant is Black, which is crucial.[ii]
Yes, all the research shows, particularly in death penalty cases, that the likelihood of conviction goes way up when the defendant is Black and the victim is White.
But, remember: It’s not just the likelihood of conviction. It’s also the likelihood of whether the prosecutor is going to seek and recommend the death penalty. Prosecutors are much less likely to seek death in the case of, say, a Black defendant and a Black victim, or a White defendant and a Black victim. They just are. If it’s not as likely to get a conviction, the victim is devalued.
Some prosecutors are then going to see a White victim with a Black defendant case and assume that their odds of success in winning a death penalty conviction increase, and these become political calculations. Maybe they’re thinking, “I wanna be a DA or a Senator,” like John Cornyn, who started his career this way and became an Attorney General. So, you get these cases where the likelihood of a conviction rises when you have a Black defendant with a White victim combo, so the prosecutor is more likely to seek the death penalty and more likely to recommend the death penalty to the jury and the jury is more likely to hand down that sentence.
Relatively speaking, there are still not many death sentences in the U.S., and it’s really a county issue more than a state issue. Even in Texas, you’re looking at a couple of counties where all the death sentences are handed out, like Houston.
But, yes, the White victim, from what we know from the Baldus study, which is the most comprehensive death penalty research ever conducted, the White victim is the primary variable.[iii]
So, protecting the sanctity of Whiteness becomes a really important variable.
Toward the end of the book, you write, “McKleskey V. Kemp … is not so much about capital punishment as condoning the invisible patterns of racism that reinforce and reproduce racial caste under the guise of colorblind neutrality and have legitimized the discriminatory application of justice manifested through crime control efforts such as the death penalty and the ongoing penal excess of hyper-incarceration in the United States” (p.175).
Elaborate on these broader implications of McCleskey V. Kemp for mass incarceration and institutionalized racism in America.
The death penalty becomes an important topic through which to study institutionalized racism in mass incarceration, because the death penalty is such an extreme punishment. The death penalty allows you to really see and show the consequences of this kind of hidden racism and discrimination within the system, but it’s not just the death penalty. The entire system functions this way.
When you look at the Court’s ruling in McCleskey, what Lewis Powell writes is staggering. I mean, when he writes things like, “Well, all punishment is going to have things like discrimination and bias, but does it reach a Constitutional threshold?” I’m paraphrasing, but it’s like, “Holy shit. Really?” I mean, it’s so flippant.
However, this is something I didn’t quite express in the book: Since they were never going to get Scalia, and they were never going to get White, Powell should have sided with the dissent and swung it, by every metric, and the question is: What compelled Lewis Powell’s decision?
Maybe it’s too speculative, but this is kind of how I’ve always come down on this, and I didn’t put this in the book:
In the death penalty ruling, when Powell is saying, “Well, there’s always going to be some discrimination,” he is basically saying: “We are seeing and acknowledging that there are extreme racial disparities in this system. These studies have all exposed to us racial disparities that have existed in Georgia’s death penalty over time.” So, when the court saw that, they had to make a decision: Are disparities that are obviously correlated with race fundamentally unconstitutional?
Now, if I ask you that question, my guess is you’re going to say, “Yes, they are.” If you ask me that question, I’m going to say, “Yes, this is a disparity. It’s clearly based in race. It’s clearly discriminatory.” However, if the Court had agreed with me and you, the entire justice system would have fallen apart, because every disparity in the justice system that correlates with race, gender bias, socioeconomic bias, would have had cause to be restructured, and anybody who had been convicted and then sentenced, whose case had somehow been connected with one of those disparities in the system, would have had cause to appeal.
So, I think Powell looked at the findings in McCleskey, and went, “Holy shit. This is going to destroy the whole American legal system. You know what’s easier than doing that? Executing Warren McCleskey.”
I’m not suggesting Lewis Powell was saying that. Who knows? But, I do think they looked at that and were scared.
At one point in the decision, Powell uses the phrase, “If taken to its logical conclusion,” and that’s what he’s really getting at: “If taken to its logical conclusion,” the entire system fails.[iv]
They would have had to overhaul the entire justice system to create more fairness and eliminate disparities correlated with race and other non-legal factors.
As human beings, can we produce a system of mass incarceration without these factors? A system of mass incarceration that is fair? I don’t know that we can.
From what we know, the entire system needs to fail in order to work. And that was the moment.
McCleskey V. Kemp was the moment for this system to be changed, and instead of seizing that moment, the Court swept it aside. They rationalized sweeping it under the rug by arguing that the findings showed all these disparities, but that the findings did not prove purposeful discrimination in McCleskey’s case specifically. In other words, like, the prosecutor would’ve had to call him the N-word in the middle of trial or something, but that’s absurd.
If McCleskey had been denied an apartment, the Court would have ruled in his favor. If he had been denied a job because of his race, the Court would’ve ruled in his favor. But, because it was the justice system, because it was the death penalty, they said you’ve got to show overt discrimination in his specific case.
So, it’s not really about the death penalty. It’s about how the entire system functions in the post-Civil Rights era, to maintain a racist status quo in a world in which overt in-your-face racism is no longer allowed to exist as the status quo. The question is: how to keep the system from changing, even while implementing so-called “progress.”
You still need to fill the prison beds, still need to make money, there’s a lot of corporations involved. You still need to justify the system. You can’t start arresting rich White people, so how do you maintain the system? It’s broader than just the death penalty.
When you go down the line of lesser crimes and punishments, it’s harder to show the same comparisons about systems failure, because of the retributive aspect of the death penalty. Two death penalty scholars, Hugo Adam Bedau and Ernest Van den Haag, used to debate the rationale behind “retribution” in the death penalty, and Van den Haag believed in retribution, and Bedau’s counterargument was: When you think about the death penalty, it sounds perfectly logical that, when somebody kills somebody, you kill them, but the lower you go down on the list of crime scenarios, the more ridiculous that sounds.[v] Like, what’s “retribution” for jaywalking or trespassing? What do we do? Have someone go walk on your yard?
So, the argument I’m making in the book is that, when you go to the most extreme punishment, it’s not only to show how that punishment is immoral or wrong. It’s also that the institutionalized racism throughout the system is in some ways clearest in the case of the most extreme punishment, because one thing I never argue in the book is that the death penalty is immoral. I don’t begrudge people for having a moral value that suggests a murderer should be executed. It is not my place to question their morals in that regard. It’s not a moral argument.
When I teach the death penalty, I teach the moral debates right in the beginning, the first couple days, then I tell my students, “Okay, now I want you to stop thinking about this as an issue of morality and start thinking of it as an issue of public policy,” and that’s how I tried to approach writing Killing with Prejudice.
When you go to the most extreme punishment and its legal history and application, you can really show how the system fails on a mass scale.
And that one case, McCleskey V. Kemp, showed why the whole system has to be indicted. It was right there in front of the Supreme Court, and they did not make that indictment.
[i] Mark Peffley and John Hurwitz, “Persuasion and Resistance: Race and the Death Penalty in America,” American Journal of Political Science, 2007 (Vol. 51, Number 4)
[iii] David C. Baldus, Charles Pulaski, George Woodworth, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology, 1983, (Vol. 74, Issue 3)
[iv] “Petitioner’s claim, taken to its logical conclusion, throws into serious question the principles that underlie the entire criminal justice system”: https://supreme.justia.com/cases/federal/us/481/279/
[v] STATEMENT OF HUGO ADAM BEDAU (FROM SENTENCING IN CAPITAL CASES – HEARING BEFORE THE HOUSE SUBCOMMITTEE ON CRIMINAL JUSTICE, 95TH CONGRESS, 2ND SESSION, HR 13360, JULY 19, 1978 – SEE NCJ-59638)