From Dred Scott v. Sanford to Brown v. Board of Education, our courts have stood as an impediment to progress or pushed our country forward, bringing us closer to the ideals of our nation. Last month, the Pennsylvania Supreme Court acted as the former when they allowed the death penalty to remain in place in Pennsylvania.
During oral arguments last month, visitors in the packed Philadelphia courtroom witnessed an incongruous sight — a prosecutor arguing the death penalty was unconstitutional as applied in all cases in the state. The court disappointingly refused to weigh in on the constitutionality of the death penalty once and for all even in light of a new study looking at Philadelphia’s death penalty cases between 1978 and 2017 finding that: 72% of cases were overturned, the death penalty hasn’t reduced crime and it costs taxpayers far more than a life sentence in prison. This aligns with national research and a growing consensus that the death penalty simply doesn’t work — a conclusion many other countries have embraced in rejecting this ultimate sanction.
So why does the U.S. still have a death penalty? Perhaps the answer lies not in why we kill, but who we kill.
A group of prosecutors came together last month in Alabama to grapple with this issue, among others, exploring the connections between racialized terror of the Jim Crow South and today’s modern death penalty.
In Philadelphia these concerns are disturbingly evident. Eighty-two percent of defendants on death row are black yet less than 45% of Philadelphia’s population is black. Similar racial disparities play out across the country with black people making up 13% of the population but 42% of individuals on death row. The race of victims also plays a significant role: in North Carolina, the likelihood of a death sentence is three and a half times higher if the victim is white rather than black.
As Philadelphia DA’s brief noted, many black defendants are more likely to receive the death penalty because of poverty. Policies like redlining, underfunded public schools and historic discrimination have resulted in concentrated poverty in black communities. Poor defendants, assigned a court-appointed lawyer, often fail to receive the same zealous representation as others due to their counsel’s paltry pay and heavy caseloads. In Philadelphia this is especially clear, where 66% of overturned death sentences were reversed based on ineffective assistance of counsel. But that’s not the entire story.
The Equal Justice Initiative aptly described the death penalty as the “direct descendant of lynching.” Research in some states shows that lynching only declined when white supremacists were given a legal replacement — accelerated trials by white juries handing down the death penalty. Today, the race of the victim of a crime often is the strongest predictor of whether the accused will receive a death sentence.
The United States is the only Western democracy to still embrace capital punishment. With the seventh highest rate of execution, we are aligned with countries known for abysmal human rights records like China, Saudi Arabia, Egypt, Iraq, and Iran, while much of Europe lost its appetite for state-sanctioned death after the horrors of World War II.
The enduring hold of the death penalty in the United States is a symptom of having never reckoned with our history. From slavery to mass incarceration, racial oppression never ended here, it just changed form. There was no reparation for enslaved people and no accountability for slave owners. Attempts to protect newly freed people from white supremacist mobs were quickly abandoned during the First Reconstruction. The civil rights movement pushed the United States into fully embracing the principles of a true democracy for the first time in its history, but there was no transitional justice process — no efforts to repair what has been intentionally broken, no truth telling and reconciliation and insufficient legal guarantees of non-recurrence.
Against this backdrop, elected prosecutors are increasingly speaking out against the death penalty — from State Attorney Aramis Ayala in Orlando to District Attorney Dan Satterberg in Seattle to Larry Krasner in Philadelphia. And while the Pennsylvania Supreme Court failed to embrace this reform, the 28 other states where this penalty remains in place can choose to begin the work of healing their communities by ending one of our nation’s ugliest legacies.
Miriam Aroni Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution, a national network of elected prosecutors working towards commonsense, compassionate criminal justice reforms. Jody E. Owens II is the district attorney-elect for Hinds County (Jackson), Miss., and the former chief policy counsel for the Southern Poverty Law Center.