Death penalties are discriminatory and unconstitutional


Julia Baron, Jenny Ries

Fast forward nearly 200 years, and the federal government is still sanctioning the execution of a disproportionate number of Black men.

2,550 inmates in the United States currently sit on death row, according to the Death Penalty Information Center. This number went down by 13 last year, as former President Trump ended an unofficial 17-year moratorium on federal executions in the final six months of his presidency. Waiting for procedures, appeals, and requests, these thousands of inmates are usually held in prison for years anticipating their legal murder by their own government. Followed by China, Iran, Saudi Arabia, Iraq, and Egypt, the United States executes the 6th largest number of their own citizens each year, according to the BBC. A gruesome, unconstitutional, and discriminatory procedure, the death penalty must be abolished immediately, as it violates the 8th amendment of the Constitution, is too obsolete for a criminal justice system permeated with wrongful convictions, and egregiously discriminates against BIPOC.

Going back to the era of slavery in the United States, executions were committed as a strategy to discourage possible slave rebellions and to control Black populations from becoming too large or powerful. This wasn’t just the policy of some slaveholders; the federal government stimulated the murder of enslaved people by monetarily compensating slave owners for the act, arguing that it resulted in a financial loss for their plantation. With this policy and the law’s horrific racial prejudice, racism was etched into the practice of execution.

Fast forward nearly 200 years, and the federal government is still sanctioning the execution of a disproportionate number of Black men. While there are no longer Black Codes, the Death Penalty Information Center reported in October of 2020 that 41.6% of the current death row inmates are Black, while the US Census reports that they only comprise 13.4% of the US population. This is in sharp contrast to white citizens, who make up 76.3% of the population, and only 42.15% of inmates on death row. A large part of this racial discrepancy is due to who decides on the sentence: a jury. Juries are usually the ones to impose a death sentence, per the 6th Amendment’s guarantee of an “impartial jury.” The keyword here is impartial, which is meant to be guaranteed through the randomness of jury selection but is often disrupted by a prosecutor’s ability to remove individual jurors. Due to this ability, with often little pushback from the judge, the New York Times reports that juries end up being made up of a disproportionate number of white people, even in counties with high percentages of people of color. This lack of Black representation in juries deciding the fate of Black defendants is key in their unjust sentencing. A comprehensive study done on the impact of a jury’s race on criminal cases by the Quarterly Journal of Economics finds that “conviction rates for black and white defendants are similar when there is at least some representation of blacks in the jury pool, but in the absence of such representation, black defendants are substantially more likely to be convicted.”

Not only is the death penalty rooted and upheld in white supremacy, but it is inherently in violation of the constitution. The 8th amendment, passed in 1791, protects citizens against the infliction of “cruel or unusual punishments.” Even if it could be argued that a peaceful execution wouldn’t constitute a “cruel or unusual punishment,” the means by which the killing is completed would. In Elizabeth Bruenig’s article The Man I Saw Them Kill, published in the New York Times, she details witnessing the execution of 56-year-old Alfred Bourgeois in a chilling and shocking reflection. It took more than 20 minutes for Bourgeois to die, gasping for air as pentobarbital was shot through his veins, following his last words: “I did not commit this crime.”

Bourgeois’s haunting final words leads to possibly the most gruesome aspect of the death penalty: wrongful convictions. According to the Death Penalty Information Center, 170 victims of execution have been exonerated after their death just since 1973. That is 170 innocent lives taken from the government. If exonerations had come while these people had been serving life sentences, even if they would have sat in prison for years for a crime they didn’t commit, they could have gotten some semblance of justice, been able to see their friends and family again, and even, most crucially, received the rightful validation of their innocence. The death penalty carries no such insurance, and a wrongful execution is an unforgivable mistake that cannot be undone.

This story was originally printed in the February print edition.