The Future of Death
This piece is from May 15, 2018, at the American University of Paris.
If there has ever been a time to challenge controversial laws, it is now. Whether it is Brexit, nuclear bombs, or gun violence, millennials are questioning the laws that are shaping their futures. On Thursday, March 15th, Carol Steiker, a Harvard Law professor, discussed one of these important issues at the American University of Paris: capital punishment. Steiker, who is a specialist in the field of criminal justice, is very well acquainted with the death penalty. Having worked on numerous cases involving capital punishment, Steiker portrays her passionate debate on the abolishment of this law. In her discussion at AUP, Steiker emphasizes the importance of understanding both the problems, as well as the history of the death penalty, before we can make any impactful changes.
Steiker has been involved with the death penalty for a long time and has shared her many insights on the death penalty through classes, articles, and novels. With her newest book, Courting Death: The Supreme Court and Capital Punishment, History, Law, and Society professor Michelle Kuo, took the opportunity to invite Steiker and allow the AUP community to examine the future of the death penalty. It examines how it is possible that the United States, a country that is considered to be a world leader and superpower, was ranked in the top five countries in the world with the highest deaths from capital punishment in 2015.
The discussion on Thursday night covered the history of the U.S. death penalty and how the United States has ended up at the top of the Amnesty International’s Death Sentences and Executions 2015. While in 2016 the U.S. had 8 fewer executions and fell to the 7th position on Amnesty International’s list, it is still significant to notice that the United States is the only “western” country that still has the death penalty, and actively uses it.
Steiker, who is an advocate of abolishing the death penalty told the Harvard Law Today that “criminal justice was a great engine of American inequality.” The death penalty has been an active component of U.S. history, as it has been around since 1608 when a man by the name of Captain Kendall was executed for being a spy for the Spanish.
The death penalty in the United States was largely influenced by the British colonization, but quickly developed a course of its own, one in which racism was a key issue. By 1612, the death penalty could be given for any crime ranging from trading with Native Americans, to stealing grapes. By the early 19th century, some states had started to abolish the death penalty, and some had limited the death penalty to acts treason or murder and those executions no longer took place in public. However, there were also many states that started to add to the list of crimes to be executed for, and many had to do with discrimination and slavery.
As slavery became a common practice in the United States throughout the 18th and 19th centuries, the crimes for which individuals could receive the death penalty increased in states that had not limited or abolished the death penalty. When at AUP, Steiker stated that before the American Civil War, there were 66 laws for slaves, and only four laws for others, that would result in the death penalty. This was deeply rooted in the racial issues that were happening in the United States.
The U.S. realized the negative impact of the death penalty on society, but decided that the death penalty was better than lynchings — a practice that was happening more and more. The period between 1890 and 1910 was considered a lynching-craze, in which “more people were lynched than there were executed in the past 50 years (1968–2018)” says Steiker. At what point have the American peoples had of enough of the atrocities they commit to their own people?
By 1931, the Constitutional Court formed the opinion that for court cases regarding the death penalty both parties must have a lawyer present. The Constitutional Court made this change to the constitution due to the case of the Scottsboro Boys in Alabama, the case of nine African American boys aged 13–19, who were convicted of raping two white women. All but the youngest received capital punishment. By 2013 all of the nine boys were pardoned. It was recognized that if an individual or group was going to be convicted and receive the death penalty, that they should at least have a lawyer present, who can argue their case. What was interesting about the Constitutional Court making this change, was that it was the first time that there was an alteration in the Constitution. By 1963, 30 years later, the Constitution included that all cases must have a lawyer present. Yet capital punishment was still a part of the U.S. Constitution.
Fast forward ten years and the United States becomes one of the countries that has abolished the death penalty. From 1972 to 1976 capital punishment was abolished all throughout the United States. The reason that the Constitutional Court made the official decision of abolishing it, was due to the lack of cases where individuals were tried and convicted. All over the U.S., the crime rate went down: “in 1965 there was one execution, in 1966 there were two executions, 1967: zero, 1968: zero, 1969: zero, 1970: zero, 1971: zero, 1972: zero” says Steiker. This caused for the Supreme Court to banish the death penalty — the death penalty had become so rare, that it was not doing anything for society.
The abolishment of the death penalty in the United States came at a very tricky time, as the U.S. was about a decade into what would become a three-decade long crime wave. Homicide rates rose, crime was a huge issue, as well as terrorism, which wore the face of hijacking. Due to the presence of this crime wave, within a four-year time period, 35 different states and governments passed capital statutes, that would reinstate the death penalty in their state. The popular demand for the death penalty caused the Constitutional Court to reinstate it in 1976. The reinstating of the death penalty had better guidelines and was discrete about when and how to apply the capital punishment. The guidelines were to establish a more discrete manner of picking and choosing who should receive the death penalty.
Post-1976 is considered to be the time of modern capital punishment. Immediately after the reinstatement of the death penalty, the U.S. seemed to stabilize itself in the face of crime and the execution rate started to decline. Since 1976, the number of executions and individuals put on death row in the United States has fluctuated up and down, with a current low of 20 executions in 2016. The official statistics of 2017 have not yet been published, and the international community is unsure of what to expect, especially with the constant radical changes being made in the Trump administration.