The Death Penalty: Abolition’s New Cause

A century and a half ago, America came out of slavery. It was perhaps not literally true, as Abraham Lincoln said, that every drop drawn by the lash would be paid for by one drawn with the sword

A century and a half ago, America came out of slavery. It was perhaps not literally true, as Abraham Lincoln said, that every drop drawn by the lash would be paid for by one drawn with the sword, but the liberation of more than three million African Americans did cost the lives of over 700,000 soldiers, former slaves and free blacks among them.

Lincoln, who detested slavery, had promised to protect it where it legally existed when he assumed the presidency. Conscience is a luxury in political leaders, who often find themselves far less able to act on their moral impulses than ordinary citizens. They are dependent not only on circumstance, but on those who are free not only to express themselves but to directly oppose and resist laws and institutions they believe to be unjust. In the cause of slavery, these persons were called abolitionists. We honor men such as William Lloyd Garrison and John Brown for their moral passion. The Emancipation Proclamation and the Thirteenth Amendment were written in their blood, sweat, and tears too.

There is another cause today that demands a similar level of passion, although it concerns not three million souls but barely three thousand, although the persons affected are not, as with slavery, the innocent victims of injustice and oppression, but a group almost uniquely unsympathetic among the general population: the prisoners of America’s Death Rows. A slave does not deserve his condition, and is deprived of his most fundamental right, liberty; a condemned murderer forfeits both his liberty and his life only by a judicial process hedged with various safeguards and after the determination of his fellow citizens that he has knowingly, willingly, and without excuse taken the life of another.

Yet there is a great deal that connects the slaves of old with the situation of today’s condemned prisoners. Slaves were by definition destitute; being property, that owned nothing of their own. America’s Death Row inmates are also a destitute population; uniformly, they are poor, not only because they have been stripped of any possessions they had, but because they come almost exclusively from conditions of poverty to begin with. Rich men do not hang. They are never even capitally accused—witness O. J. Simpson, or John du Pont—because it is tacitly understood that capital punishment is exclusively a penalty for the underclass.

America’s Death Rows are also disproportionately populated by men of color. This is no accident; studies of capital convictions have consistently shown that black males are at least four times as likely to receive death sentences than whites who commit comparable crimes. In Georgia, the rate was eleven times higher for black on white than white on black crime. These statistics failed to persuade the U.S. Supreme Court that actionable discrimination existed, and so racially biased prosecutors and juries remained free to send black men to their deaths.

Capital punishment became a social issue in the United States only when the practice of lynching gradually faded out in the South, and hanging juries replaced hanging mobs as the prescribed method for enforcing racial subordination. Now that capital punishment is carried out almost exclusively in the South, its racial character is all the more pronounced. The historical connection between slavery and the death penalty is thus clearer today than ever. Whereas masters had the power of life and death directly over their slaves in the Antebellum South, and lynch mobs in the Jim Crow era, it is now the capital jury that wields the ultimate racial sanction.

If one looks at the map of the United States in this Second Abolition Age, it startlingly resembles that of the pre-Civil War era. There are eighteen American states that have now abolished the death penalty; these “free” states, as we may call them, are preponderantly Northern ones, particularly in those states where opposition to slavery was strongest before 1860. Some twenty-odd states might, using the old nomenclature, be described as “border” states, where capital punishment remains on the books but has either been suspended by moratorium or has simply been unenforced for a significant period. The most active death penalty states, from Virginia to Texas, correspond almost entirely to the states of the old Confederacy, with only Ohio as an outlier.

There is, however, one important difference between the legal situation of slavery before the Civil War and that of capital punishment today. The Constitution declared no generalized right to chattel slavery, even as it acknowledged its existence in the Southern states of the Union. Not until the Dred Scott Decision of 1857 were non-slave states charged with the responsibility of returning escaped slaves, and that decision was a critical factor in precipitating the Civil War. That the enforcement of slavery might be imposed as a civil obligation on the entire Union, and that it might thereby become what the Founding Fathers had deliberately refused to make of it, a national institution, made the rupture of the Union inevitable.

Unlike slavery in Antebellum America, however, capital punishment is a recognized penalty on the federal level, and the Antiterrorism and Effective Death Penalty Act, signed into law by Bill Clinton in 1996, has considerably expanded the scope of federal jurisdiction —providing the death penalty, for example, in case of the assassination of federal poultry inspectors (not previously regarded as a particularly endangered class of workers). Sixty persons are presently on federal Death Row, including Dzhokhar Tsarnaev, the surviving Boston Marathon bomber.

Tsarnaev’s case was significant because his crime occurred in Massachusetts, a state where the death penalty has been abolished. To try Tsarnaev capitally in Massachusetts, the Justice Department of Eric Holder had to override the will of the state’s citizens, forcing them to host a trial on their soil that their statutes forbade. This was a usurpation of state sovereignty, and also an egregious violation of the prohibition against double jeopardy, which forbids making a defendant subject to multiple trials for the same offense.

The Tsarnaev case posed a further problem. Even if all fifty American states were to abolish capital punishment, it could still be imposed on each and every one of them by federal authority. This was never so with slavery, even after Dred Scott.

Which brings us to the present case of Dylann S. Roof. Mr. Roof, as will be remembered, murdered nine members of the Emanuel Church in Charleston, South Carolina, last June 17. South Carolina, where the Civil War began, is a death penalty state, and its Attorney General, Scarlett Wilson, announced last summer that she would seek capital punishment for Roof. This set off some controversy, since survivors of the massacre and several families of the deceased had indicated their spiritual forgiveness of Roof, and pleaded for a noncapital trial. Now, U.S. Attorney General Loretta Lynch has declared that the federal government, too, will seek the death penalty under its own jurisdiction. In short, the case of Tsarnaev is being replayed, with the difference that, this time, both judicial parties are competing to put Dylann Roof to death.

Ms. Lynch has stated that she was “compelled” to seek the death penalty because Roof had failed to show remorse for his crime. Of course, nothing whatever compelled to her to interfere in a case that had already produced an indictment from a competent state jurisdiction that sought exactly the same result she now demands. I suppose, too, that it is gratifying to know that the U.S. Attorney General is such an expert searcher of souls that she can not only read Roof’s heart as it stands today but as it will in the many decades of life that would presumably await him were his life to be spared. She clearly knows this, or claims to know it, better than the parties who sat eye to eye with Roof before his rampage, who saw him conduct it and experienced the mortal terror of being subjected to it, but who judge him nonetheless by the hope and charity of their faith, and the belief that the possibility of redemption should be denied to no one.

It is because we all must die, with whatever sins grave and small lie on our heads, that we should deny no one, whatever his or her crime, the full opportunity to repent and seek forgiveness. This would be absolutely so even if we had a justice system that was impeccably fair and proof against error, Instead of one horrendously biased and so prone to error that two-thirds of all capital sentences are overturned on appeal, though often not for decades (and some not in time). Abolition, then, must be our cause. The rest of the Western world has learned to live without inflicting death on its citizens. Our very history, and the gross defects of our present society, make it all the more imperative for us to join the civilized consensus, and end capital punishment for good and all.

About Robert Zaller 53 Articles
Dr. Robert Zaller is an American author, playwright, and professor of history at Drexel University. An authority on British political history and constitutional thought, he writes extensively on politics, modern literature, film, music and art. He has been a Guggenheim fellow and a fellow of the Royal Historical Society.

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