Hundreds of KU students, faculty and community members attended Ibram Kendi’s Thursday talk at the Lied Center where he spoke about systemic racism in our statewide and nationwide policies. There is plenty we can do to dismantle it, and that begins with abolishing the death penalty.
“There is no such thing as a nonracist or race-neutral policy,” Kendi says in his book, How to Be an Antiracist. “Every policy in every institution in every community in every nation is producing or sustaining either racial inequity or equity between racial groups.”
The death penalty, legal in 27 states, falls squarely within the former.
Since 1989, DNA evidence exonerated 375 wrongly convicted people, 69% of them belonging to minority groups. A 2006 study revealed that, as the defendant’s conformity with Black stereotypes increased, so did the probability of receiving a death penalty.
This racial disparity does not stop at crime; it extends to jury selection. According to a 2001 study, 25% of juries in death penalty cases lacked Black jurors, and 70% had two or fewer. Further, from 1977 to 2003, at least 20% of Black people executed were convicted by all-white juries.
Legally, the equal protection clause in the 14th amendment should prohibit states from implementing the death penalty when evidence of racial disparities exists.
Unfortunately, it is not that simple.
McCleskey v. Kemp (1987) rejected Georgia’s racial bias statistics, with Justice Lewis Powell affirming that a conscious discriminatory bias must accompany a discriminatory effect. In her book, The New Jim Crow, Michelle Alexander writes that the ruling effectively sanctified the judiciary from racial bias claims.
Many support the death penalty because of its longstanding tradition in American history. They are right; since 1700, more than 15,000 executions occurred. But, that does not mean that it should stay this way — or that it is constitutional.
The Eighth Amendment proclaims, “Nor cruel and unusual punishments [be] afflicted.” For originalists, the clause upholds capital punishment because the punishment coexisted with the ratification of the amendment.
Still, when jurisprudence belies our foundational values — justice, liberty and democracy — it is imperative to reexamine our jurisprudence.
In Glossip v. Gross(2015), Dr. David Lubarsky’s testimony affirms that midazolam, a sedative that states continue to use, does not render the procedure painless. The fear of pain is not unfounded; lethal injections are the most mishandled means of delivering the death penalty, with 7.12% of procedures botched.
The death row phenomenon further substantiates the practice’s cruelty. Nationally, the average time between sentencing and execution is 18.7 years, during which time an individual suffers perpetual uncertainty and solitary confinement.
These inhumane conditions lead to delusions, suicidal ideation and insanity, which transcends the prescribed severity of the death penalty and breaches one’s right to procedural due process within a reasonable time.
The biggest blow to originalists is the word “unusual.” When a practice falls out of favor, it becomes unusual, implying that the Founding Fathers’ broad construction purposed it to be dynamic and ever-changing.
“The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Chief Justice Earl Warren wrote for the Court in Trop v. Dulles(1958).
The death penalty is unusual locally and globally. While 27 states retain the death penalty de jure, three states enacted moratoriums, thereby illegitimating it in 26 states — a majority. Globally, 73.8% of countries abolished capital punishment.
In view of recent scholarship, it is absurd to retain this discriminatory and unjust institution.
“Being an antiracist requires persistent self-awareness, constant self-criticism, and regular self-examination,” Kendi said in his book.
Fortunately, more people realize the need to reevaluate their values and progress toward them.
According to the 2020 Gallup Annual Poll, 55% of Americans support capital punishment, the lowest figure since 1972. In another survey, given the choice between the death penalty and life sentence without parole, 52% of respondents opted for the latter.
We must revisit capital punishment in a new light, considering the consistency of the direction of the change. The Supreme Court should enact a nationwide moratorium, akin to the one Furman v. Georgia(1972) instated, to stop this ruinous custom with all deliberate speed. Then, either via an amendment or the Court, we will abolish it.
I enjoin you to call for your congressional representatives to cosponsor H.R.97, the Federal Death Penalty Abolition Act of 2021, and H.R.262, the Federal Death Penalty Prohibition Act, and for your state representative to pass a bill abolishing capital punishment statewide. Contact Kansas Governor Laura Kelley and urge her to enact a moratorium immediately.
Error-ridden and broken beyond repair, the death penalty cannot stand in a just society. It is a failed experiment with which we cannot tinker anymore.