(In the final part of an interview on institutionalized racism in mass incarceration and the death penalty, author and sociologist R.J. Maratea discusses the future of the death penalty, the new Supreme Court, recent legislation and rulings surrounding execution and lethal injection, and other topics that have arisen since his timely book, Killing with Prejudice: Institutionalized Racism in American Capital Punishment, was published in 2019.)
What are some important developments around the death penalty that have arisen since the book on McCleskey was published in 2019?
We’ve seen a couple things: We’ve seen historically Republican states start to abolish it. Most recently, Virginia abolished it,[i] so we’re getting toward passing a tipping point at which 25 states have abolished it. [ii] I think it gets interesting when we pass 25.
In terms of constitutional abolition and symbolic abolition, we’ve already passed 25. New Hampshire has a death penalty, for example, but New Hampshire has one person on death row and no death chamber, so they can’t execute him. That’s symbolic abolition.
Public support was a factor in the McCleskey ruling,[iii] and previously in the Gregg ruling,[iv] in which they reinstituted the death penalty: Most people support it. Most states have the death penalty.
Now we’re seeing declining support, similar to the middle of the 20th Century as we were leading up to Furman.[v] We’re seeing more states get rid of the death penalty, which is an indication of declining social support. If any group is going to mount a constitutional challenge to it, that becomes important, because once we pass 25, you can argue that the majority of the country, the direction of the country, is clear.
Now, it gets tricky with this new Supreme Court, because this Supreme Court will never abolish the death penalty, and this Court will be in place probably for the rest of my lifetime, so on a constitutional level, I don’t believe the death penalty will be abolished in the U.S. in my lifetime.
I’m also a little skeptical about the implications of the shift away from it. I know a lot of people are writing about this being the fall or decline of the death penalty, but we have seen this before.
By the middle of the 20th Century, botched executions, questionable executions, people started becoming a lot more skeptical about capital punishment, plus we were in the middle of the Cold War, so it was very difficult to tell the rest of the world to look at this great beacon of democracy and then you’re executing people while making the case that the Soviet Union is oppressive. It’s just not a great look, so that brings us to Furman, a complicated decision in which the Court ruled that the death penalty constituted cruel and unusual punishment.
Once you pass Gregg, which reinstitutes it, there aren’t a lot of executions in the first few years, then they really increase in the 1980s.[vi]
Now, crime has gone up a little since the pandemic started. Cable news wants to say that crime is always rising. We’re always getting bureaucratic police and political accounts about how to control crime. Historically speaking, we’re still pretty low.[vii] But, when crime cycles back to going up, like it was in the 80s up through 93,[viii] as economic issues and climate issues intersect, as we go into recessions or depressions, having water shortages, resource shortages, in the future – the idea that you’re not going to have an increase of executions? I’m not sure I believe that.
I know a lot of activists are looking at this as the fall or the end of the death penalty. I’m skeptical. I am really, really skeptical of that.
Trump was not quite able to come in and become our fascist dictator, but we haven’t had that yet. Europe has had their fascist dictators. We haven’t quite had ours yet, and when democracies die, one thing that certainly comes back is death penalties. So, I am a lot more skeptical than a lot of people that this is the decline or death of the death penalty.
That said, for the time being, fewer executions, more and more states abolishing it, these are all good trends.
States that get rid of it tend not to bring it back, because all the arguments for why you need it end up being absurd once it’s not there, because – you know – people’s lives are the same without it. Where that could lead, perhaps, in states that have abolished it, or if the country ever abolishes it, is to a debate over life sentence without parole, which is itself a death penalty.
Anyway, I’m a little more skeptical than many others about the declining future of the death penalty, mostly because, again, the subjects I write about, how racism is built into mass incarceration and the death penalty, which Michelle Alexander lays out in The New Jim Crow, that’s not changing, because the system reinforces the same outcomes even when we try to reform it or make it more equal. [ix]
It’s hard to believe Texas will ever get rid of it, or Louisiana, Alabama, just seems highly unlikely to me, and again, one thing conservatives have done over the past couple of decades, while people on the left weren’t really paying attention, is recognize how important the courts are. Right wing conservatives will now control the courts for decades, probably the rest of my lifetime.
Probably the rest of mine too.
I don’t know. How old are you?
I don’t know about the rest of your lifetime. I’m 48. It’ll probably swing in your lifetime but you’ll probably be old.
Maybe, or nobody will be old…
Well, another thing to be concerned about, if it does start to swing and the Democrats are then anything like they are now, the people they put in place are not going to be progressive. They’re going to be conservatives, neoliberals, like Justice Kagan. These are not progressives. These are old school Republicans, except on a few select issues, which are important, like gender equality. But – you know – on the environment? Kagan? Come on.
And you don’t always know how they’ll come down on issues like criminal justice reform.
I’m not all that positive, but you have to stay somewhat hopeful. Otherwise, there’s no point.
What are your biggest concerns about the new Supreme Court?
Well, we’ll have to see. You know.
I lived through the Rehnquist Court. The Rehnquist Court was a mess. There are really great books on that. I mean, the Supreme Court has always been political.
Obviously, I have real concerns about somebody like Kavanaugh, about Coney Barret. I’m concerned about Coney Barret, mostly because she is an ideologue, but Kavanaugh, because I don’t know what he is, just seems like a law school dropout. I don’t agree in any way shape or form with Gorsuch’s legal philosophy, but in some cases, for example, cases involving Native American lands, Gorsuch has ruled in favor of Native Americans in almost every case. I haven’t made sense of him yet.
Sometimes, Supreme Court Justices get seated and end up totally different than what you expected. For example, Justice Souter, appointed by George H.W. Bush, was supposed to be really conservative and then ended up siding with the liberals most of the time.[x] It was a real hang on Bush’s face. Somebody like Roberts, who I think is mindful of his legacy, I think there are cases where Roberts would normally side with conservatives that, in the future, he might not, but it’s all speculative, because it’s 6-3 anyway, so his vote doesn’t matter.
The more the courts are politicized, the more judges with conservative ideologies take over the federal courts, the greater the risk of really quick disintegration, things really starting to unravel, any progress made starting to go away really fast. It’s disconcerting.
There are a couple rulings I wanted to get your thoughts on. One, at the state level, South Carolina has passed legislation that would require people being executed to choose between the firing squad and the electric chair if lethal injection is not possible or available.[xi]
It becomes interesting if those laws are challenged constitutionally, because the whole legal justification for the death penalty in the past was that it was humane. It was the humane alternative. Each advancement in the method of execution in the death penalty was argued to be an advancement of humanity.
So, you move from hanging to guillotine to gas chamber to electric chair to lethal injection, all in the name of humanity. It’s perverse. It’s not really humane, but that’s been the argument to justify it.
Well, when you start moving backwards, towards firing squads, which have always been legal in Utah,[xii] or the electric chair, how do you continue to make the case of “humanity”? Your main method isn’t available, so you’re going to use archaic, barbaric methods? I think that becomes interesting.
Also, the idea that you’re forcing a prisoner to choose their own method of death, to me, seems patently cruel and unusual. But, again, the question is whether these courts find it to be cruel and unusual, not whether I do or you do, and I’m certainly skeptical that any of the courts right now would view moving backwards as unconstitutional. The idea of choosing your own method of death seems outrageously perverse, but I don’t think these courts will rule it unconstitutional.
To whom is legislation like that politically feasible or beneficial and why?
Politicians get a lot of traction out of seeming tough on crime. Exuding a caricature of masculinity really resonates with voters. Even voters who might be opposed to the death penalty like the appearance of strong responses and masculinity.
For example, when the New Hampshire legislature passed the bill abolishing the death penalty, the Governor had a big press conference, State Police lined up behind him at his desk while he’s signing the veto, saying, “Nobody’s gonna come into New Hampshire without facing the ultimate consequence,” paraphrasing.[xiii]
Again, New Hampshire doesn’t have a death chamber. They haven’t executed somebody in almost a century. They have one person sitting on death row. It’s all grandstanding. That works with people. We are fed the idea from childhood that the best way to respond to crime is to be tougher.
Something like six or seven Americans out of 10 every year say crime rose from the year before.[xiv] That’s statistically impossible, let alone that fact that the crime rate has trended pretty low since 1993. Yet, all you ever hear is, “Crime is up in the past month,” “Crime is up in the past week,” “Crime is up in the past year.”
When news reports cover the reasons why crime is supposedly rising, they talk to police chiefs, beat officers, politicians. CNN had a report about the rising murder rate in New York. Jim Sciutto rode along with beat officers. When the cops told him the reason the murder rate is rising in New York is that violent criminals are benefitting from bail reform, he reported it without a hint of cynicism or consideration of the fact that he’s hearing it from the police.[xv] Property offenders and drugs offenders benefit most from bail reform.[xvi]
That kind of stuff makes people feel there always needs to be more and harsher penal responses.
People in the U.S. were asked general questions about crime control. The vast majority responded that we are too lenient and that we need to punish criminals more severely. Then they had the same people look at vignettes of actual sentences in real cases, and the vast majority answered that the punishments were too harsh. So, they wanted harsher punishments, but when they looked at actual punishments given, they thought they were too harsh.
Who makes money off the death penalty? I mean, I know it’s costly to the public, in terms of the taxpayer, but who profits from it?
I think it should be looked at in terms of the larger Prison-Industrial-Complex. That’s a more productive way to look at it than just in terms of the death penalty, because you have to think about all the companies involved in the prison system, prison investment, management, maintaining death chambers,building the equipment, politicians using the penal system to gain political traction.
The benefits can be material and financial or they can be symbolic, like, public support, attention. There are different ways to measure profit.
So, it’s more productive to look at it in terms of the broader Prison-Industrial-Complex. In terms of the death penalty, like, take the Troy Davis case.[xvii] Forget the fact that the jurors all recanted, all the evidence to suggest he was guilty. Just look at the actions of the prosecutor in that case.[xviii] I mean, want to know who profits? Prosecutors profit, in terms of careerism and such. Ending people’s lives, putting people in cages, is an industry.
What about the process of lethal injection? Who is in the business of that?
That gets tricky, because the pharmaceutical companies were selling them the drugs, for years, that are used to execute people. The drug cocktail now for lethal injections in the death penalty does not even meet veterinary standards for putting down sick animals.[xix]
The major drug companies were always selling them the drugs. They didn’t care, then the information got out more about what drugs were being used, which companies were involved, and it became bad business for a lot of these companies to be associated with executing people, so they had to ban the sale.[xx] It’s just bad PR now.
That’s led a lot of these states to look for black market ways to get these drugs, then you don’t even know if the drugs are legit.[xxi] European companies weren’t going to export drugs to the U.S. to be used for the death penalty.[xxii] This has become another problem with the death penalty.
The Supreme Court ruled in 2019 that if you have an acute health issue that increases the risk of experiencing some amount of time in pain while being executed, that does not constitute cruel and unusual punishment.[xxiii] What are your thoughts on that ruling?
The irony is that the drug combo we use is slightly off anyway. Your heart can explode in your chest before the painkiller sets in, and one of the drugs prevents you from moving, so you can experience you heart exploding, and feel it, and not be able to move.[xxiv]
With the drug combination they use, we don’t know if you’re feeling pain anyway.
Part of the move away from hanging, gas chambers, electric chairs, was that there was clear and obvious pain involved. When you’re frying somebody and their face is melting off and their eyes are popping out of their head, the physical imagery it creates in people’s heads is not consistent with so-called “humane punishment,” which, again, is oxymoronic anyway, because you’re killing them, but that was the legal justification of the move to lethal injection protocol.
Lethal injection looks peaceful, but there have been plenty that we know are not, and there’s a lot we don’t know about it. Some have lasted 25 minutes, 30 minutes. People’s faces get bright red and we don’t really know what’s going on.[xxv]
A lot of doctors aren’t going to do it, because their job is to protect life, not to end it. They might have somebody supervise, but they’re not going to actually do it, so you have to find prison staff who are willing to do it, but they aren’t usually enthusiastic.[xxvi] There’s a separate question of whether or not we have the right to ask prison employees to kill other people.
In and of itself, though, the ruling is stunning, the idea that some amount of pain isn’t necessarily unconstitutional. What is considered “some pain?” If somebody can feel his heart exploding, is that “some pain?”
Again, it’s a question about the only way to justify the death penalty’s existence, because if you’re saying that no amount of pain is acceptable, then no protocol would work.
So, I would describe the ruling as: absurdly predictable.
What can everyday working people, perhaps new to these subjects, do to get involved in taking action about issues of structural racism, the death penalty, mass incarceration?
The first thing is to learn, particularly with something like the death penalty, because it’s such an emotional topic that it’s easy to reach strong conclusions one way or another without really knowing the issue. Whether you support or oppose the death penalty, that’s a personal judgement, and that’s fine. Some people’s feelings about it are based in religion, people who support and oppose it, others just believe in retribution. Whatever it is, that’s fine, but try to expand your understanding first.
Concurrent with that, learn the views that you oppose. Let’s say you oppose the death penalty: If you really want to understand it, if you really want to get a good view of it, particularly a view that kind of removes your emotion from it, really learn why people support it, and vice versa.
That’s really important, because we have a tendency, particularly in the social media age, when we come across people with differing views, to just belittle each other rather than engage critically, largely because we don’t understand each other’s positions. That’s really common with the death penalty.
So, have a well-rounded view.
If you really want to get active, often what we see now is that people are busy, don’t have a lot of time, and they become involved in issues and movements online. In some ways, that’s okay, because the organizations that fight on the issues benefit from that. People join them, donate money, sign petitions. All that is helpful. It really is.
However, there are people who are much more optimistic than I am.
It’s really tough to cultivate change online. It really is.
Doing things in real space, to the extent that you have the time and the ability, that kind of action is what really helps if you want to cultivate change.
But, the first thing is learning.
A lot of areas, particularly if you’re in a death penalty state, have organizations and groups actively lobbying, advocating, working with death row inmates. These groups are there and they are taking action. The internet is a good resource to locate those groups. There are national, state, and local level groups alike. They do a lot of good work, not just on the death penalty, but mass incarceration in general, reintegrating people into communities. So, the good thing about the internet is that people kind find these groups if they want to get involved.
A major theme throughout your work is “social control.” What is the importance of “social control” in the context of the death penalty?
The death penalty is the ultimate mechanism of state power: “We can kill you.” So, you can see how it benefits the State as a mechanism of social control: They’re allowed to kill us.
For the life of me, I don’t know how it benefits anybody else. We’re constantly being told that it does, but I don’t know how it would benefit us.
So, when you talk about “social control,” the fact that citizens consent willingly to the death penalty, that a majority of citizens support their state’s ability to kill them if they choose it appropriate, when many of the same Americans don’t trust the government to deliver them their mail, is an astounding testament to social control.
[i] Dakin Andone, “Why Virginia’s Abolition of the Death Penalty is a Big Deal for The State and The US,” CNN, 3/29/2021
[ii] 23 states have abolished the death penalty as of this writing, plus the District of Columbia (see here: https://deathpenaltyinfo.org/state-and-federal-info/state-by-state)
[iii] U.S. Supreme Court, McCleskey v. Kemp, 481 U.S. 279 (1987) McCleskey v. Kemp, No. 84-6811, Argued October 15, 1986, Decided April 22, 1987, 481 U.S. 279
[iv] Gregg v. Georgia, 428 U.S. 153 (1976)
[v] U.S. Supreme Court, Furman v. Georgia, 408 U.S. 238 (1972), Furman v. Georgia, No. 69-5003, Argued January 17, 1972, Decided June 29, 1972, 408 U.S. 238
[vi] “Death Sentences in the United States Since 1977, Sentencing Data,” Death Penalty Information Center (https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year )
[vii] Richard Rosenfeld, Ernesto Lopez, “Pandemic, Social Unrest, and Crime in U.S. Cities,” Council on Criminal Justice, National Commission on Covid-19 and Criminal Justice, December 2020
[ix] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, The New Press (2010, 2012)
[x] Tucker Higgins, “George H.W. Bush was President for Only Four Years, but he Shaped The Supreme Court For Decades,” CNBC, 12/5/2018
[xi] Victoria Hansen, “Death Row Inmates Sue After They’re Asked to Pick Firing Squad or Electric Chair,” NPR, 5/20/2021
[xii] Austin Sarat, “Return of Firing Squads Shows Death Penalty and its ‘Machinery’ are Grinding to a Halt,” USA Today, 5/18/2021
[xiv] Justin McCarthy, “More Americans Say Crime is Rising in U.S.,” Gallup, 10/22/2016, See also: Maggie Koerth and Amelia Thompson-DeVeaux, “Many Americans are Convinced Crime is Rising in the U.S. They’re Wrong,” Five Thirty Eight, 8/3/2020
[xv] Jim Sciutto and Shelby Vest, “We Spent Two Nights on Patrol With the NYPD. Here’s What They Told us About Spiking Crime in the City,” CNN, 6/22/2021
[xvi] Fiona Ortiz, “Poor, Nonviolent Inmates Benefit From U.S. Bail Reform Push,” Reuters, 7/16/2015. See also: Jamiles Lartey, “New York Rolled Back Bail Reform. What Will Other States Do?” The Marshall Project, 4/3/2020
[xvii] 577, U.S.____(2009) Justice Steven concurring, Supreme Court of The United States in RE Troy Anthony Davis on Petition for Writ of Habeas Corpus, No. 08 – 1443, Decided August 17, 2009
[xviii] Amnesty International, “USA: ‘Where is The Justice For Me?’: The Case of Troy Davis, Facing Execution in Georgia,” 3/26/2011
[xix] Paul Lewis, “The Lethal Injection Cocktail Being Used in U.S. Prisons Isn’t Even Used on Animals,” Business Insider, 5/7/2014
[xx] Rose Rimler, “Will Pharmaceutical Companies Kill the Death Penalty?” Health Line, 10/16/2019
[xxi] Dave Boucher, “Tennessee Must Rely on ‘Black Market Drugs’ for Executions, Attorney Says,” The Tennessean, 6/13/2018. See also: Liliana Segura, “Pfizer’s Death Penalty Ban Highlights The Black Market in Execution Drugs,” The Intercept, 5/19/2016
[xxii] Matt Ford, “Can Europe End the Death Penalty in America?” The Atlantic, 2/18/2014
[xxiii] Bucklew v. Precythe, Director, Missouri Department of Corrections, et al. Certiorari to The United States Court of Appeals for The Eighth Circuit No. 17–8151. Argued November 6, 2018—Decided April 1, 2019
[xxiv] Noah Caldwell, Ailsa Chang, Jolie Myers, “Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection,” NPR, 9/21/2020 See also: Ben Crair, “Photos from a Botched Lethal Injection,” The New Republic, 5/29/2014 See also: James K. Boehnlein, M.D.,“Should Physicians Participate in State-Ordered Executions?” AMA Journal of Ethics, March 2013 Policy Forum.
[xxv] (a recent case) Kent Faulk, “Alabama Death Row Inmate Ronald Bert Smith Heaved, Coughed for 13 Minutes During Exection,” Al.com, 3/7/2019 (Smith’s execution lasted 34 minutes)
[xxvi] Tolly Moseley, “The Enforcers of The Death Penalty,” The Atlantic, 10/1/2014