Racism has been central to the development of the U.S. death penalty. Despite changes in laws, procedures, and policies, capital punishment remains linked to race in a system that now promises equal justice for all. Though it is impossible to deny the mountain of accumulated evidence of racial bias in the death penalty, the United States Supreme Court has rejected challenges to the punishment based on this evidence. Attempts at addressing racial bias in the operation of the death penalty have gained renewed force in state legislatures and courts, but it remains to be seen whether the country is willing to recognize the full scope of the connections between longstanding systems of oppression and the foundations of the capital punishment system.
The historical throughline of differential treatment based on race can be seen in the deployment of capital punishment against a category of defendants who have universally been considered less culpable and more capable of redemption. The youngest children sentenced to death in U.S. history were African American and Native American boys. A ten-year-old Black boy whose name is unknown was reportedly hanged in Alexandria, Louisiana, in 1855. James Arcene, a Cherokee, was sentenced to death for participating in a robbery-murder when he was ten years old. Because he avoided capture for over a decade, his execution took place on June 26, 1885, when he was in his early twenties.
Young girls of color were also subject to the death penalty. In 1786 twelve-year-old Hannah Ocuish was executed in New London, Connecticut. Ocuish was executed for killing another child after a fight over strawberries. Ocuish had been abandoned by her mother and was likely intellectually disabled. She was described in local papers as “a fierce young savage,” reflecting prevalent stereotypes of Native Americans.
Mary was between twelve and sixteen years old when she allegedly killed her owner’s child in Washington County, Missouri. She was interrogated by a neighbor while tied to a log. The neighbor described what took place: “I then commenced pulling up [Mary’s] coat as if I was going to whip her. She then said if I would not whip her she would tell the truth. I told her then out with it. She then told me she had thrown [the child] in that hole of water.” Mary was tried and sentenced to death in 1837, and following a successful appeal and retrial she was resentenced to death. She was hanged in 1838.
Most of the children executed in U.S. history were Black, and most executions were for crimes against white people. At fourteen years old, George Stinney, Jr., was among the youngest to be executed in the twentieth century. After a three-hour trial followed by ten minutes of deliberation by an all-white jury, Stinney was sentenced to death in 1944 for beating two white girls to death. His lawyer filed no appeals, and Stinney was electrocuted by South Carolina three months after the crime occurred.
His case was widely reported, in part because of the gruesomeness of executing such a small child: “The guards had considerable difficulty strapping the small Black child (five feet one inch, ninety-five pounds) into the electric chair made for adults. As his electrocution began, Stinney’s death mask slipped down to reveal the crying face of a frightened seventh-grader.” His descendants and community activists fought to clear his name posthumously, arguing that Stinney had been intimidated into confessing, that he did not have the physical strength or ability to beat the girls to death, that other suspects were not investigated, and that Stinney’s lawyer put on no defense. Seventy years after his execution, Stinney’s conviction was vacated because of the lack of due process in his rushed and perfunctory trial.
Willie Francis was fifteen years old when he was sentenced to death for the murder of his employer. His death sentence came after a trial similar to Stinney’s, in which his lawyers offered no defense. As with Stinney, there was no investigation of evidence pointing to other culprits, and a potentially coerced confession. Louisiana attempted to electrocute Francis in 1946, but because of a misconfigured electric chair, the execution attempt failed. A new lawyer unsuccessfully appealed to the U.S. Supreme Court to prevent a second execution attempt, and Francis was ultimately executed in 1947.
From 1972 to the last juvenile execution in 2003, 55 percent of those executed for crimes committed as juveniles were people of color. When the U.S. Supreme Court declared juvenile executions unconstitutional in 2005, seventy-one people were on death row for crimes committed as juveniles. Of the juvenile death row population at that time, 66 percent were people of color.
Now that the death penalty is available only for crimes committed after the age of eighteen, Black and Latinx youths are overrepresented in those sentenced to death and executed for crimes committed as young adults. Between 2000 and 2019, 164 people who were between eighteen and twenty-one years old at the time of the crime were executed. Of these, 60 percent were African American or Latinx, according to the Death Penalty Information Center.
Racial justice acts have been one tool that legislatures have used in response to evidence of racial bias in the administration of the death penalty. After the Kentucky legislature commissioned a study that showed significant racial disparities in the death penalty, it passed a racial justice act that allows a defendant to challenge a prosecutor’s decision to capitally charge them. This challenge must be brought pretrial. As a result of its limited scope, no Kentucky capital defendant has successfully pursued a challenge under this law.
North Carolina enacted a racial justice act in 2009 that allowed people on death row to overturn their sentences if they could prove that race was a “significant factor” in jury selection, prosecutors’ decisions to seek a death sentence, or juries’ decisions to impose the death penalty. Four incarcerated people successfully pursued claims under the act, but when the political composition of the state legislature changed in 2013, it passed a retroactive repeal of it. In a series of 2020 rulings, the North Carolina Supreme Court struck down the state legislature’s attempted retroactive repeal and restored the rights of approximately 140 people on death row to seek relief. It also restored the relief granted to the four people whose death sentences had been reinstated.
In September 2020, California enacted a racial justice act that applies to all criminal cases. The act prohibits the state from seeking or obtaining a conviction or imposing a sentence “on the basis of race, ethnicity, or national origin.” At the same time, the state enacted legislation to more effectively address discrimination in jury selection in all civil and criminal cases. The law bars the use of discretionary strikes to remove a prospective juror whenever “there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor” in the challenge to the juror. Given the newness of the laws, the extent of their impact on death sentencing is not yet apparent.
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Some states have charted a different path, concluding that racial disparities invalidate the death penalty altogether. In 2018 the Washington Supreme Court held that the death penalty violated the state constitution because it had been “imposed in an arbitrary and racially biased manner.” In State v. Gregory, the court relied on a study of twenty-five years of Washington capital prosecutions that demonstrated that Washington juries were 4.5 times more likely to impose a death sentence on a Black defendant than on a white defendant in a similar case. The Gregory court refused to dismiss these findings as the Supreme Court had in McCleskey v. Kemp. In McCleskey v. Kemp (1987), the Supreme Court rejected a challenge to the death penalty based on statistical evidence of racial discrimination in its application. Warren McCleskey presented evidence that in Georgia, the odds of a murder case resulting in a death sentence was 4.3 times greater when the victim was white. The Court held that McCleskey needed to prove particularized discrimination in his own case and could not rely solely on systemic information. In State v. Gregory, the Washington Supreme Court took a different approach,instead finding that “given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance.”
In 2021 Virginia legislatively abolished the death penalty, in part based on racial justice concerns. The commonwealth—which from colonial times had carried out more executions than any other U.S. jurisdiction—became the first southern state to end capital punishment. The repeal effort emphasized the historical links between slavery, Jim Crow, lynchings, and the death penalty. Delegate Mike Mullin, the House sponsor of the bill, said, “We’ve carried out the death penalty in extraordinarily unfair fashion. Only four times out of nearly 1,400 [executions] was the defendant white and the victim Black.” In signing the bill, Governor Ralph Northam characterized the death penalty as “fundamentally flawed,” based in large part on its racial inequity.
The U.S. death penalty has always been a reflection of the strength of systems of racial oppression. Equality was formally enshrined more than 150 years ago in post–Civil War constitutional amendments, but the Supreme Court remains unwilling to ensure that equal justice is extended to the administration of capital punishment. Given existing Supreme Court precedent and the current Court’s composition, the road to abolition of the death penalty in the United States runs through state courts and legislatures. Since the current strongholds of the death penalty are mostly in southern states with courts and legislatures dominated by white conservatives, it is tempting to downplay or ignore racial justice issues in order to secure abolition. However, pursuing abolition without centering the current practice in an established legacy of racism results in a flattening of the racial justice issues central to the death penalty’s continued existence. Racial injustice was central to the establishment of the U.S. death penalty, it is central to its continued existence, and ending racial injustice must be central to its abolition.
Adapted from The Slow Death of the Death Penalty: Toward a Postmortem, edited by Todd C. Peppers, Jamie Almallen and Mary Welek Atwell, reprinted with permission from NYU Press.
Image: Eyasu Etsub / Unsplash
