Lynch Mobs
From Lynch Mobs to the Killing State, Edited by Charles J. Ogletree, Jr. and Austin Sarat, New York University Press, New York, 2006. 278 pages, $75 (cloth), $22.00 (paper.)
Review by Heidi Boghosian
Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.
Billie Holiday gave voice to Abel Meeropol’s 1937 poem “Strange Fruit,” which beautifully evoked the hideous imagery of lynchings. Perhaps no other work of art expressed the horrors of racism in the United States.
Seven decades after “Strange Fruit” was written, two social commentators have rendered an equally powerful work on the modern-day counterpart of lynching—capital punishment. Those who would proclaim lynching merely a shameful part of our past need only read From Lynch Mobs to the Killing State to realize that lynching –albeit in a more sanitized form that our society finds justifiable—remains a reprehensible part of our present.
Charles Ogletree and Austin Sarat have assembled an elegant compendium of essays written by sociologists, historians, criminologists, and lawyers. The essays starkly reveal how this country’s death penalty has its roots in lynchings, and how it operates to sustain a racist agenda.
The death penalty evolved from lynching when courts stepped in to sentence those whom angry mobs would hang, writes Timothy Kaufman-Osborne, who has authored a book on the transition, From Noose to Needle: Capital Punishment and the Late Liberal State. Purportedly race-neutral, the practice of capital punishment has nonetheless well-served the perpetuation of racial categories. Due process concerns ostensibly differentiate the death penalty from lynching, but they also serve to mask how the state persists in perpetuating racial differences. Lynch Mob’s co-editor and contributor, Charles Ogletree, agrees that current practices fail to counteract age-old discriminatory impulses.
Two contributors to the book—Glenn Pierce and Michael Radelet—have analyzed legal and extralegal factors in Illinois’ death penalty system and found what noted researcher David Baldus has exposed in his studies: blacks have a higher conviction rate for killing whites than for killing blacks and are less than half as likely to receive a death sentence for killing blacks. Despite these statistics, initially presented in the 1987 case of McCleskey v. Kemp, all attempts to create systemic remedies have met only with opposition by legislators and others.
Another contributor to From Lynch Mobs to the Killing State, Stuart Banner, who has written a history of capital punishment in this country (reviewed in the June 2003 issue of The Federal Lawyer), explains how the close connection between race and capital punishment led to the temporary abolition of the death penalty in 1972, with the Supreme Court’s decision in Furman v. Georgia. Constitutional challenges to the death penalty were an outgrowth of the Civil Rights movement, and were led by Civil Rights organizations such as the NAACP. Such challenges were based on racial discrimination; undoubtedly slavery and the Jim Crow era that followed account for the continuing racial disparity in the imposition of the death penalty.
Racial stereotyping often takes place subconsciously and can hide under legal formalities, writes Mona Lynch. She cites four elements of the system that allow room for such subconscious racism: (1) the jury selection process in capital cases, which excludes opponents of the death penalty; (2) the fact that capital trials often involve violence and criminal conduct that feeds into cultural stereotypes; (3) confusing sentencing guidelines, which allow racism to flourish; and (4) the effect of racism generally on jurors’ perception of mitigating evidence presented in the sentencing phase. Lynch writes, “The influence of empathy is likely magnified in cases where a White is victimized by a non-White—where, all other things being equal, the highest relative percentage of death sentences are found—when jurors may extend feelings of empathy for the victim but not for the defendant.”
The essay by Austin Sarat, Lynch Mob’s co-editor, gets to the heart of the matter in recognizing that the issue of race is undeniably divisive and discomforting in public discourse. He writes that the past three decades—from Furman v. Georgia in 1992 to Governor George Ryan’s historic mass commutation of Illinois death sentences in 2000—have witnessed both continuity and change in the role that race plays in the rhetoric of the movement to abolish the death penalty. Race, Sarat explains, is conceptualized as a matter of discrimination and unfair outcome in individual cases. This paradigm neglects the deeper links between the death penalty and our racially organized society. Governor Ryan, for example, focused on the wrongful convictions, at the expense of race, to justify his commutations.
Arguing that it is wrong to kill the innocent transcends the ideological divides that accompany discourse about race and shift the focus away from the awkwardness of such discourse. Sarat provides an overview of this shift, in which the scandal of innocent people being sentenced to death comes together with science in the form of DNA testing. Racial discrimination in capital punishment simply cannot compete with this combination. Sarat believes that new abolitionists “must resist that temptation to further marginalize the discourse of race in their rhetoric and politics.” He argues that race and capital punishment are “deeply entangled,” and that we should no longer ignore the persistence of racial prejudice in all stages of the process, “[f]from the racial profiling that occurs before an arrest, to the prosecutorial decision of whether to seek the death penalty, to the peremptory challenges of jurors, to the final decision of whether to impose the death penalty.”
Public officials and judges admit that discrimination existed until the 1970s. but they seem to think that it somehow suddenly ended at that time, writes Steven Bright of the Southern Center for Human Rights. Courts and legislatures perform a disservice by substituting an idea of what criminal justice should look like for the reality of what is. In reality, the justice systems in this country are frequently plagued by a lack of funding, overall neglect, and personnel who are ill-equipped to fulfill their responsibilities. Yet, Bright notes, “Courts have been increasingly hostile to challenges to the exclusion of minorities from state judicial systems, even when it is apparent that the minority vote has been diluted in order to preserve a primarily white judiciary.” Courts lose respect and credibility when they refuse to acknowledge and remedy racial discrimination that is evident to all others.
And so the legacy of lynching flourishes in the modern criminal justice system. Benjamin Fleury-Steiner, who teaches sociology and criminal justice, rightfully applies the label of “apartheid practice” to this current form of official lynching (pointing out that we saw “the entrenched racial apartheid in America’s cities” in our response to the devastation of Hurricane Katrina.). He writes: “Official lynchings are realized in death penalty jurors’ performances of the ‘criminal black,’ ‘illegal alien’ and ‘white trash’ minstrels. The 985 lives lost to official lynchings in the United States since the practice resumed in 1976 symbolize a much broader and enduring culture of American apartheid.” Fleury-Steiner suggests that the political and legal elites must honestly acknowledge the failure of the capital punishment system. Citing recent positive Supreme Court decisions that present a “grammar of justice,” Fleury-Steiner says that if the high court were to abolish state killings, it would show the world that the high court does not fear “too much justice,” borrowing Justice William Brennan’s words in his McCleskey dissent. Abolition is the clear next step if the Court and the state legislators are committed to human rights.