Capital punishment remains a controversial, highly contested issue in our society despite the Supreme Court’s determination of its legality as a matter of constitutional law. Opponents of the death penalty argue against its application on a number of grounds – morality, economy, medical practicality, etc.; why did you decide to focus your recent research on the racial aspect of capital punishment?

Although my book Imprisoned by the Past: Warren McCleskey and the American Death Penalty covers the entire history of the U.S. capital punishment system, much of the book focuses on the racial aspect because race is so uniquely intertwined with our criminal justice system, the history of the death penalty, and the history of the United States. The evidence about how race affects who is sentenced to death highlights numerous other problems with the system too. Additionally, another reason the book centers on the theme of race is that I wanted to focus on the case of Warren McCleskey, one of the most important cases in U.S. history, as a turning point for the history of capital punishment.  And the key argument in his case focused on the role that race plays in capital sentencing. But his case also connected to other issues that the book explores, including systemic arbitrariness, innocence issues, the morality of killing prisoners, and the way society executes inmates.

In his dissent in a different death penalty case, Callins v. Collins (1994),1  Justice Blackmun asserted: “Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death can never be achieved without compromising an equally essential component of fundamental fairness – individualized sentencing.” In what ways is the death penalty administered in a racially discriminatory manner?

Justice Blackmun was making the point that the judgment of whether a person should live or die requires jurors to consider numerous factors in assessing the value of a human being’s life. But the problem is that this striving for fairness also allows jurors to consciously or subconsciously consider improper factors such as race. In Warren McCleskey’s case, his lawyers presented a sophisticated statistical analysis, known as “the Baldus Study,” which showed how race affects capital sentencing. In particular, the study found that jurors were significantly more likely to impose the death penalty when the victim was white than when the victim was African American.  Numerous studies have found similar results about how race affects the probability that a person is sentenced to death. Historically, states had criminal laws and procedures that were intentionally designed to treat whites and blacks in different ways, and that past is still present in the biases brought to the criminal justice system by the people who participate in that system. 

Your recent book, Imprisoned by the Past: Warren McCleskey and the American Death Penalty (2015), contextualizes the problem of such systemic racial discrimination. Why did you choose to research and write about McCleskey v. Kemp (1987)2  specifically? In what ways did the Court’s decision signal a departure from the ruling in Furman v. Georgia (1972),3  an earlier death penalty case?

When I decided to write a book that covered the history of the death penalty in the United States, I soon realized that the McCleskey v. Kemp decision was perfect for tying together the past, present, and future. The Court’s reasoning in the case illustrates how the criminal justice system and the United States in general have failed to adequately grapple with our history of racial discrimination. Additionally, the case is a major turning point for the death penalty abolition movement and for those in the legal system.  When attorneys began attacking the death penalty on constitutional grounds and found some success with Furman, many continued to expect the U.S. Supreme Court to eventually end capital punishment in America. Once the Court decided McCleskey, though, everyone realized that in the immediate future the Court was not going to stop executions. This realization after McCleskey affected politicians, activists, attorneys, judges, and others in the way they viewed capital punishment.

And even after Furman and McCleskey, the Supreme Court continues to play an important role in the way the death penalty is used?

Yes, that’s true. In the book I devote a chapter to the direction the Supreme Court has taken in recent years after McCleskey v. Kemp, and the Court will continue to do what Justice Blackmun called “tinkering” with the death penalty. For example, even though states began adopting lethal injection as an execution method back in 1977, the Supreme Court this year heard oral arguments about lethal injection procedures as states still struggle with the procedures.  Similarly, the Supreme Court was recently asked to consider United States v. Umaña, a Confrontation Clause case where a defendant is challenging the reliability of hearsay evidence presented to the sentencing jury. The Court has accepted review in Hurst v. Florida to evaluate the way defendants get the death penalty in Florida. We have been trying to make improvements to the death penalty for hundreds of years, but we still cannot get it right.

There is a quote by Clarence Darrow that states: “The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment.”4  Darrow’s prediction seems accurate in that the legality and enforcement of capital punishment varies widely across the United States. Why has the administration of the death penalty changed so significantly in recent years?

In Clarence Darrow’s lifetime, he witnessed a period where several states abolished capital punishment, and we are currently in a similar abolition period. We have yet to see if our current period of abolition will be more lasting than the one Darrow saw in the early 1900s. But I think it is different. I explain in Imprisoned by the Past that recent changes, and in particular the fact that several states have abolished the death penalty in the last decade, occurred partly because of Warren McCleskey’s case. The Court’s decision and the evidence presented by McCleskey’s lawyers profoundly impacted the modern death penalty. There are additional reasons discussed in the book, such as discoveries of innocent people on death row and such as politicians and judges educating the public about the problems with our capital punishment system.

Does a defendant’s “indigent” status increase his or her probability of receiving the death penalty? If so, how could this be remedied?

As in many areas of life, money makes a difference in the criminal justice system and in the capital punishment process, where cases are complex and expensive. One way to start to improve the system is to ensure all regions of a state have quality public defender systems where the attorneys are paid well and not overworked with a large number of cases. But even with many outstanding capital defense attorneys across the country, states often fail to provide adequate funding for investigation and experts.  One of the reasons that some states have recently abolished the death penalty is because legislators recognized that even though capital cases cost much more than non-capital murder cases, mistakes are still made. So, these states concluded that the best remedy for the errors and the expense was to get rid of the death penalty.

Does the legacy of racial discrimination in the application of the death penalty shape our current enforcement of capital punishment? How does the ongoing discussion about race and capital punishment inform our understanding of recent cases like that of Trayvon Martin, Eric Garner, Michael Brown, and Freddie Gray?

Since the Baldus Study in McCleskey’s case showed that one’s risk of getting the death penalty is affected by the race of the victim, numerous studies continue to make similar findings about how race affects the capital punishment system. Some states, like North Carolina, have struggled with the question of whether to have a law to try to address the role that race plays in capital sentencing. But the problem persists. And as we have seen by the recent treatment of the men you mention, race continues to affect both the legal system and law enforcement. The title for my book comes from a dissenting opinion by Justice Brennan in McCleskey’s case where he said that we as a country remain “imprisoned by the past” if we refuse to acknowledge racial discrimination’s influence on the present. The majority of Supreme Court justices in McCleskey’s case made the mistake of not fully recognizing how our past history affects us today. Similarly, when we discuss what happened to people like Trayvon Martin, Eric Garner, Michael Brown, and Freddie Gray – as well as when we consider the disproportionate number of African-Americans in jail and prison -- it is essential that lawmakers understand how these issues are connected to America’s long history of mistreating African-Americans. Such an understanding is the first step of a necessary journey the country must take toward addressing the present and preparing for the future.

Jeffrey L. Kirchmeier is a Professor of Law at City University of New York School of Law.  He is the author of the new book Imprisoned by the Past: Warren McCleskey and the American Death Penalty (Oxford University Press 2015), which chronicles the history of the U.S. death penalty and that history’s connection to a landmark Supreme Court case on race and capital punishment. His other writings include law review articles about criminal procedure, constitutional law, and the death penalty. 

Additionally, he has supervised and helped train capital defense attorneys throughout Arizona and was the editor of a quarterly legal publication on death penalty law. Professor Kirchmeier is a member (and former Chair) of the Capital Punishment Committee of the New York City Bar Association.

Interview by Katherine Lugo