Fifty years ago, the United States Supreme Court brought a halt to capital punishment when it handed down its ruling in the landmark case of Furman v. Georgia. But rather than a full and final attack on the death penalty itself, the court only struck down the death penalty statutes that were in effect at that time.
The rejected laws left the decision of whether someone convicted of a capital crime should receive a death sentence to the untrammeled discretion of judges or juries. The court focused on the procedures used in these decisions, and it put the issue of race and racial prejudice at the center of death penalty jurisprudence. The 5–4 majority found that those procedures violated the Constitution’s ban on cruel and unusual punishment and the guarantee of equal protection of the law.
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Three justices, William Douglas, Thurgood Marshall, and William Brennan, said that they created an unacceptable risk of arbitrariness and discrimination. They emphasized that the mere possibility that race might play a role in capital sentencing was enough to render it constitutionally unacceptable.
Looking back a half-century later, Furman’s insistence that the nation confront the linkage of race and capital punishment seems both noble and naïve.
Its nobility lies in its commitment to ensuring that if America was to retain capital punishment, it would have to figure out ways of guaranteeing fairness in death sentencing and ridding it of the taint of racial prejudice.
Its naïveté lies in its belief that death sentencing could ever be purged of arbitrariness and discrimination.
Fifty years ago, America’s death penalty was haunted by what sociologist David Garland calls “the specter of lynching,” with its inexorable linkage of race and death. Little has happened since Furman to change that.
Despite numerous efforts to address racism in death sentencing, the problems that Furman identified continue to plague America’s death penalty. What has changed is the court itself: The current Supreme Court seems largely untroubled by that the risk of discrimination in death sentences and is much less willing to acknowledge and address it than it was when Furman was decided.
Today the death penalty, like lynching, remains a tool of populist justice, often targeting innocent people and applied disproportionately in cases involving the death of a white victim.
According to an NAACP report, “Lynching is the public killing of an individual who has not received any due process.” While its origins can be traced to the Revolutionary War era, and while not all of its victims were Black, lynching flourished in the aftermath of the Civil War as a tool of racial repression. In that period, lynching was extralegal, arbitrary, and racist.
“These executions,” the NAACP continues, “were often carried out by lawless mobs, though police officers did participate, under the pretext of justice. … A typical lynching involved a criminal accusation, an arrest, and the assembly of a mob, followed by seizure, physical torment, and murder of the victim.”
The NAACP estimates that from 1882 to 1968, 4,743 lynchings occurred in the U.S. Furman was a step toward acknowledging the legacy of lynching and initiating a process through which the Supreme Court tried, for a brief period of time, to rid capital punishment of the taint of racism.
As Garland notes, in Furman the Supreme Court agreed that the states’ death penalty process was “often summary, arbitrary, and perhaps even racist, but it insisted on drawing a distinction. Legal lynching was illegal, even unconstitutional, but its constitutional flaws went to procedure and not to substance.”
Two justices, Marshall and Brennan, declared the death penalty cruel and unusual under all circumstances. But the other justices in the majority held out hope of reform.
Many commentators and anti–death penalty activists expected that the death penalty would not be revived after Furman. But instead, in the wake of Furman, a dramatic backlash occurred. In the years immediately after the decision, 35 state legislatures reenacted death penalty laws designed to cure the problems identified by the Supreme Court. Some eliminated discretionary death sentences altogether, and others limited that discretion.
Four years after Furman, the Supreme Court struck down mandatory death sentencing statutes, but in Gregg v. Georgia, it approved laws that limited and “guided” sentencing discretion. In that case, Justice Potter Stewart confidently proclaimed that racial discrimination in death sentencing would be cured by such guided discretion laws. They ensured, he said, that “no longer can a jury wantonly and freakishly impose the death sentence.”
But neither guided discretion statutes nor Stewart’s confidence could change the reality on the ground. And in 1987, the Supreme Court was again confronted with a challenge to the legacy of lynching in America’s death penalty.
That case, McCleskey v. Kemp, was based on an extensive empirical analysis by David Baldus of death sentences imposed under Georgia’s guided discretion statutes. The Baldus study showed that people accused of murdering a white victim in the state of Georgia were more than 4.3 times as likely to get a death sentence as those whose victims were persons of color.
The court accepted the validity of the Baldus study, but surprisingly turned its back on the legacy of Furman. It held that proving that there was a risk of discrimination in death sentencing was not enough. Because the defendant “could not prove that purposeful discrimination” existed in his trial, there was no constitutional violation.
Twenty years after McCleskey, Anthony Amsterdam, a law professor at New York University, called it “the Dred Scott decision of our time.” “It is,” he said, “a declaration that African-American life has no value which white men are bound to respect.”
Since McCleskey, racism and the legacy of lynching have remained troublingly present in the death penalty system. Numerous studies have replicated Baldus’ conclusion in other jurisdictions, and new evidence has emerged that racial bias is present elsewhere in the system, including in decisions about which death row prisoners are actually executed. Despite Furman’s and Gregg’s efforts to purge race and racism from America’s death penalty, 42 percent of those executed since 1977 have been persons of color. And 75 percent of the executions carried out since then have been for murders of white people.
A 2020 Death Penalty Information Center report found that since executions resumed, “295 Black defendants were executed for killing a white victim, but only 21 white defendants were executed for killing a Black victim even though Black people are disproportionately the victims of crime.” And today, 82 percent of those on this nation’s death rows were convicted in cases involving white victims.
These figures suggest that what Garland calls “the social dynamics and distribution” of America’s death penalty still resembles lynching. “The death penalty,” Garland notes, “continues to be concentrated in the South … continues to target blacks whose victims were white … (and) continues to produce false accusations and impose unwarranted punishments.”
It is the false accusations, the unwarranted punishments, and the hypersensitivity to cases where a white person has been harmed that make the death penalty system so uncannily replicate the logic of lynching.
As law professor Scott Phillips rightly observes, “It’s not necessarily that the death penalty has a race problem. It’s more that the United States has a race problem that happens to infect the death penalty.”
Only by going beyond Furman and ending the death penalty can this country reckon with lynching’s troubling legacy.
