New Abolitionism



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The Rhetoric of Race in the “New Abolitionism”
By
Austin Sarat

Amherst College


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It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. ‘The destinies of the two races in this country are indissolubly linked together,’and the way in which we choose those who will die reveals the depth of moral commitment among the living.”

Justice William Brennan1.



Introduction
More than thirty years ago, the United States Supreme Court’s Furman v. Georgia decision ended one period of abolitionist activity and launched another.2 It culminated an era in which many opponents of capital punishment seized on traditional abolitionist arguments to mount legal and political challenges to the death penalty.3 At the same time, it gave birth to the era of what I have elsewhere called “the new abolitionism.”4 In both gestures, Furman put race at the center of the legal and political controversy surrounding capital punishment. Yet today the place of race as a factor in the new abolitionist era is in question.

Traditionally opposition to the death penalty has been expressed in several guises. Some have opposed the death penalty in the name of the sanctity of life.5 Even the most heinous criminals, so this argument goes, are entitled to be treated with dignity.6 In this view, there is nothing that anyone can do to forfeit their "right to have rights."7 Others have emphasized the moral horror, the "evil," of the state willfully taking the lives of any of its citizens.8 Still others believe that death as a punishment is always cruel and, as such, is incompatible with the 8 amendment prohibition of cruel and unusual punishment.9

Each of these arguments has been associated with, and is an expression of, humanist liberalism or political radicalism. Each represents a frontal assault on the simple and appealing retributivist rationale for capital punishment.10 Each puts the opponents of the death penalty on the side of society’s most despised and notorious criminals; to be against the death penalty one has had to defend the life of Sirhan Sirhan, John Gacey, or Timothy McVeigh, of cop killers and child murderers. Thus it is not surprising that while traditional abolitionist arguments have been raised repeatedly in philosophical commentary, political debate and legal cases, none has ever carried the day in the debate about capital punishment in the United States.11

Nonetheless, in 1972, when the Supreme Court halted executions, many in the anti-capital punishment movement saw it as the penultimate step in a long struggle to end state killing.12 They were confident that the Furman opinions of Justices Brennan and Marshall, both of which gave voice to traditional abolitionist sentiments, pointed the way toward an impending, judicially imposed abolition of capital punishment, and they carefully plotted the steps necessary to bring that result to fruition their campaign.13 As Philip Kurland wrote at the time, "[O]ne role of the Constitution is to help the nation to become `more civilized.' A society with the aspirations that ours so often asserts can’t consistently with its goals, coldly and deliberately take the life of any human being no matter how reprehensible his past behavior....in the Furman v. Georgia decision the inevitable came to pass."14 Jack Greenberg of the NAACP Legal Defense Fund expressed a similar understanding of the significance of Furman when he said, "there will no longer be any more capital punishment in the United States."15

From the perspective of a thirty years later these predictions look quite naive as well as somewhat forlorn. As is now well known, after Furman something unexpected happened. Whereas in other Western nations the abolition of the death penalty was followed by a downturn in public interest and support for capital punishment,16 in Furman’s wake a dramatic pro-capital punishment backlash occurred. "State legislatures...quickly responded to the Court's decision, but instead of conducting a thorough reevaluation of the subject, they enacted whatever statutory revisions they perceived as correcting the constitutional flaws contained in pre-Furman capital laws."17 Public reaction followed a similar pattern, "with a hostile response all over the country."18 Thus, four years after Furman's limited abolition of capital punishment, the Court, in Gregg v. Georgia, found that "it is now evident that a large proportion of American society continues to regard...[capital punishment] as an appropriate and necessary criminal sanction."19 As a result, the Court held that "the punishment of death does not invariably violate the Constitution."20

Since the mid-1970s the political and legal climate for abolition of the death penalty has grown more hostile. Proponents of-capital punishment responded to Furman with a mean-spirited revisionism.21 Procedural guarantees once thought minimally necessary to secure fairness and reliability in capital sentencing have been openly and enthusiastically jettisoned. American society has, until very recently, seemed even more impatient with the procedural niceties and delays attendant to what many now see as excessive scrupulousness in the handling of capital cases. What good is having the death penalty, so the refrain goes, if there are so few executions?22 Blood must be let; lives must be turned into corpses; the charade of repeated appeals prolonging the lives of those on death row must be brought to an end. In response, numerous recent decisions of the Supreme Court have eroded, not enhanced, the procedural integrity of the death sentencing process.23 Little did abolitionists realize that Furman would be the legal and political highwater mark of their efforts and that, more than a quarter century later, they would be still fighting to recapture the terrain that Furman opened up.

Still Furman, particularly the concurring opinion’s of Justices Douglas and Marshall, pointed the way toward a new strategy for abolitionists, changing the direction of their arguments from these traditional approaches toward “the new abolitionism.” The plurality in Furman was moved to halt the death penalty in the United States not on the basis of a frontal assault on the morality or constitutionality of state. Instead, mobilizing arguments grounded in due process and equal protection they found that the death penalty as then administered to be unconstitutional. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner."24

Following Furman, abolitionists today argue against the death penalty not by claiming that it is immoral or cruel but instead by pointing out that it has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.25 They seek to provide opponents of capital punishment a position of political respectability while simultaneously allowing them to change the subject from the legitimacy of execution to the imperatives of due process. New abolitionist rhetoric enables those who oppose capital punishment to respond to the overwhelming political consensus in favor of death as a punishment;26 they no longer have to take on that consensus frontally.

New abolitionists say that the most important issue in the debate about capital punishment is one of fairness not one of sympathy for murderers; instead they position themselves as defenders of law itself, as legal conservatives. One can, new abolitionists now concede, believe in the retributive or deterrence based rationalizations for the death penalty and yet still be against the death penalty; one can be as tough on crime as the next person yet still reject capital punishment. All that is required to generate opposition to execution is a commitment to the view that law’s violence should be different than violence outside the law as well as a belief that that difference could/should be rooted in the fairness and rationality of the violence that law does.

The questions I wish to address in this paper involve the role of race in the public rhetoric of new abolitionism.27 When and how do new abolitionists talk about race? How important a factor is race in their critique of capital punishment? Are they sensitive to the constitutive linkage of capital punishment and race, the ways that the use of state killing helps to demonize African-Americans and perpetuate a racial caste system?

Starting with Furman, I will examine four moments in the rhetorical development of the new abolitionism for what they reveal about the discourse of race in new abolitionist arguments. In so doing I want to make several claims. First, arguments about race have been significant in the new abolitionism, though they are often subsumed under, or conjoined with, as they were in Furman, more general arguments about arbitrariness.28 Second, even as evidence about racial discrimination in the application of the death penalty piles up,29 the rhetorical center of abolitionist argument has come to focus less on race and more on claims of actual innocence.30 The unreliability of the death penalty’s administration, rather than its discriminatory effect, is today the most powerful ammunition in the abolitionist’s rhetorical arsenal. Whereas discussion of race divides and polarizes, opposing wrongful conviction universalizes the conversation about capital punishment. One need have no fixed commitments about race to oppose executing the innocent. Thus the place of race in the new abolitionism is, I suggest, no longer certain.

Third, when new abolitionists do talk about race they do so in a way that takes racial difference as a given, and they assume that the linkage of race and capital punishment is best seen through the lens of discrimination.31 When race is brought into the discourse of the new abolitionism, it appears in a narrow guise. New abolitionists avoid, or ignore, the role of capital punishment in constituting racial difference itself, in demonizing blacks, and contributing to the maintenance of a racial caste system.32 The effect of this discursive tendency is to occlude somewhat the constitutive effects of capital punishment on race in the United States. Yet as Stuart Banner rightly notes,


“When we think about the death penalty, we think, in part, in race-tinged pictures – of black victims lynched by white mobs, of black defendants condemned by white juries, of slave codes and public hangings. For centuries capital punishment was, among other things, a method of racial control, particularly in the South but often in the North as well. These practices have almost entirely disappeared today, but they linger on in our memories, exerting their influence on the instinctive, pre-rational decision-making that drives most of the death penalty debate.”33
For new abolitionists, the current challenge is twofold, to keep race at the center of their critique of capital punishment and, at the same time, to change the way they talk about the relationship of race and state killing. Criticism of capital punishment should focus on the work it does as a living embodiment of the legacy of lynching34 and the system of white privilege which it expressed.35 Abolition politics should, I contend, be linked to a deeper critique of race privilege in the United States.
The Rhetorical Origins of the “New Abolitionism

If Furman was a bridge between traditional and new abolitionism, it was Justices Douglas and Marshall who gave the latter its first public announcement. Douglas used his Furman opinion to insist that the issue that the Court had to confront was not what state statutes authorizing capital punishment prescribed, but rather “what may be done with the law in its application....”36 At the heart of his argument was a conception of cruelty focused not on the method of execution, but rather on the manner through which the choice of who received the death penalty was made. He claimed that “the basic theme of equal protection is implicit in ‘cruel and unusual’ punishments.”37 The “desire for equality,” Douglas wrote, “was reflected on the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment,.”38 and he noted that “‘a penalty should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.”39

Arbitrary or discriminatory application of the death penalty was, in Douglas’s view, made possible by “a system of law and justice that leaves to the uncontrolled discretion of judges and juries the determination whether defendants...should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die,” he continued, “dependent on the whim of one man or of 12.”40 These laws “enable” the selective application of capital punishment, and it was this selective application that was, for him, most worrisome.41 Statutes which leave the decision on who lives and who dies to the unfettered discretion of judges or juries are “pregnant with discrimination.”42

Douglas saw the issue of race and racial discrimination as crucial in determining whether the United States could impose death sentences in a way that did not undermine its basic commitments to fairness and equal treatment.“Prejudice” rather than rational judgment drove the administration of capital punishment.43 Douglas found ample evidence that the death penalty was being applied “selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.”44

Yet Douglas takes as a given the question of who is an outcast or how one becomes part of an outcast group. For him, the evil of capital punishment is found not in its contribution to the creation of outcasts on whom society can vent its pent up fears and rage.45 The evil of capital punishment is its racial application not its racial impact, its disproportionate use against African-Americans not its disproportionate impact on America’s racial culture.

While much of his Furman opinion reiterated traditional abolitionist arguments, Justice Marshall emulated Douglas’s new abolitionist stance as well as his way of conceptualizing the race-capital punishment linkage. Marshall’s embrace of the new abolitionism, the abolitionism that pointed to deficiencies in the administration of capital punishment rather than in its philosophical or legal justifications, came as a strategic response to the fact that a majority of the population supported capital punishment. He argued that the public’s support for capital punishment was grounded in ignorance or misinformation and that if people only knew the facts about the death penalty they would reject it.46 Crucial in this regard were three facts that Marshall treated as incontestable, namely that “capital punishment is imposed discriminatorily against certain identifiable classes of people; that there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system.”47 These facts, he said, “would serve to convince even the most hesitant citizens to condemn death as a sanction.”48

In this threefold critique of the death penalty system, Marshall laid the groundwork for the new abolitionism that would unfold with particular intensity in the 1990s. In his version, race played an important part in the story he thought needed to be told. Yet like Douglas, the story that Marshall offered about race in the death penalty was a limited one.

On race, Marshall, like Douglas, focused on disparate treatment of minority groups and on law’s existing prohibitions against discrimination. He argued that giving “untrammeled” discretion to juries to decide on the death penalty was “an open invitation to discrimination.” 49 Looking at the recent history of capital punishment reveals “that Negroes were executed far more often that whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination.”50

Turning from race to the potential for executing the innocent, Marshall noted that our system of proof in criminal cases is “not foolproof.”51 No matter “how careful courts are, the possibility of perjured testimony, mistaken or dishonest testimony, and human error remain all too real.”52 Finally, Marshall concluded that the death penalty “‘tends to distort the course of the criminal law.’”53 It does so by sensationalizing trials and bedeviling “the administration of justice all the way down the line.”54 Putting this together with the facts about racial discrimination and the risk of executing the innocent, the “average citizen would...find it shocking to his conscience and sense of justice.”55


After Furman: Race in New Abolitionist Rhetoric



Since Douglas and Marshall there has been a steady development of new abolitionist rhetoric, but new abolitionists continue to talk about race in a manner that is quite continuous with the agenda set by Douglas and Marshall. Spurred by repeated statistical demonstrations of racial disparities in capital sentencing, by the DNA revolution and the release of large numbers of inmates from death row, and by vivid examples of prejudice, incompetence, and politicization in the death penalty process, new abolitionism has gained some traction.56 It offers a vehicle through which citizens might give voice to concerns about capital punishment firmly anchored in the American mainstream. It has achieved come success in reversing the rhetorical field in the debate about capital punishment57 even though it has yet to make dramatic progress in ending the death penalty.
Harry Blackmun’s Refusal to “Tinker With the Machinery of Death”
In February, 1994, twenty years after Furman, Justice Harry Blackmun announced that "From this day forward I no longer shall tinker with the machinery of death."58 This announcement marked a major milestone in the development of new abolitionist rhetoric and quickly became a touchstone to which new abolitionists would make regular recourse. His dramatic proclamation capped his own evolution from long time supporter of the death penalty to tinkerer with various procedural schemes and devices designed to rationalize death sentences to outright abolitionist.

Twenty two years before his abolitionist announcement, he dissented in Furman v. Georgia, refusing to join the majority of his colleagues in what he labeled the "legislative" act of finding execution, as then administered, cruel and unusual punishment.59 Four years after Furman he joined the majority in Gregg v. Georgia, deciding to reinstate the death penalty in the United States.60 However, by the time of his abolitionist conversion, Blackmun had left a trail of judicial opinions moving gradually, but inexorably, away from this early embrace of death as a constitutionally legitimate punishment.61 As a result, the denunciation of capital punishment which he offered in 1994 was as categorical as it was vivid--"I will no longer tinker with the machinery of death." It was most significant as a moment in the transformation of abolitionist politics, as an example of abolition as a kind of legal conservatism, and as an indicator of the anxiety that abolitionists seek to cultivate in the face of the continued popularity of the most dramatic instance of law’s violence.

Blackmun’s abolitionism was firmly rooted in the mainstream legal values of due process and equal protection. He did not reject the death penalty because of its violence, argue against its appropriateness as a response to heinous criminals, or criticize its futility as a tool in the war against crime. Instead, he shifted the rhetorical grounds.

Harkening back to Furman, as if re-writing his opinion in that case, he focused on the procedures through which death sentences were decided.62 "...[D]espite the efforts of the States and the courts, "Blackmun noted, "to devise legal formulas and procedural rules..., the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake....Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death...can never be achieved without compromising an equally essential component of fundamental fairness--individualized sentencing."63

For Blackmun the post-Furman era was an experiment, an effort to devise ways of reconciling capital punishment and constitutional values. As he put it, “For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.”64 In Callins he announced the results of these efforts. “Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.”65

Two things stand out in Blackmun’s argument. First he acknowledges law’s effort to purge death sentences of any taint of procedural irregularity. As he sees it, after Furman the death penalty is constitutional only if it can be administered in a manner compatible with the guarantees of due process and equal protection. Here Blackmun moves the debate away from the question of whether capital punishment is cruel or whether it can be reconciled with society’s evolving standards of decency.

Second, Blackmun identified a Constitutional conundrum in which consistency and individualization--the twin commands of the Supreme Court’s post-Furman death penalty jurisprudence--could not be achieved simultaneously. As a result, Blackmun concluded that "the death penalty cannot be administered in accord with our Constitution."66 Blackmun’s language is unequivocal; after more than twenty years of effort Blackmun said, in essence, "enough is enough."

Like Marshall and Douglas, Blackmun put race front and center in his critique of capital punishment and, like them, he framed the question of race as a question of discrimination, linking racial discrimination to the “arbitrariness inherent in the sentencer’s discretion to afford mercy....”67 Two decades after Furman, Blackmun observed, echoing the arguments of Douglas and Marshall, “race continues to play a major role in determining who shall live and who shall die.”68 Calling McCleskey v. Kemp, “a renowned example of racism infecting a capital-sentencing scheme....,”69 Blackmun chided the Supreme Court for turning its back on what he called “staggering evidence of racial prejudice infecting Georgia’s capital-sentencing scheme....” and suggested that there was no reason to believe that the problem of race prejudice document in McCleskey are “unique to Georgia.”70

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