Justice from Within: The Death Penalty and a New Vision for Criminal Justice through a Racial Justice Lens

Editors’ note: This article is part of our ongoing Equity, Diversity, and Inclusion (EDI) Project in collaboration between NPQ and the Young Nonprofit Professionals Network.

While the death penalty is defended as a helpful response to murder victims’ families, in reality it marginalizes and often inflicts additional harm on certain groups through disparities in its application. Crime survivors of color, in particular, are adversely affected by the disparities, and they have been left out of policy debates about crime and punishment even though people of color are more likely than white people to be victims of serious violence. As a young nonprofit professional, I join a new generation of advocates pushing the broader criminal justice reform movement to approach its work through the lens of racial justice.

For twenty-seven years, Equal Justice USA (EJUSA)—the organization for which I work—has focused on the criminal justice system’s failures through the lens of capital punishment, and as a result it has become a nationally recognized leader in state campaigns to repeal the death penalty. However, the death penalty repeal movement has not always prioritized the call for racial justice and equity. Recognizing this, over the past decade EJUSA has expanded its work beyond the death penalty and developed a broader vision focused on building a justice system that works for everyone impacted by violence. This vision rejects the false dichotomy between victim and offender, both of whom are all too often caught up in cycles of trauma and violence; it prioritizes solutions that address this trauma for all who endure it; it elevates restorative justice over retribution; and it requires a direct confrontation of the system’s racial disparities. Advocating for a reimagined justice system has required that EJUSA look within and explore race, racism, and the needs of communities of color at individual and group as well as structural levels to enable a meaningful process for transformation.

The Death Penalty—A Microcosm of a Broken Criminal Justice System

For years, lawmakers on both the right and left came together to voice support for the death penalty. Doing so was an easy way to appeal to voters—especially during the 1990s, when political rhetoric vis-à-vis crime focused on fearmongering and support for the death penalty peaked at 80 percent.¹ Their purported solution to crime, however, lacked any merit from a public safety perspective. This attraction to empty solutions that failed to address the causes of crime influenced approaches to a wide range of criminal justice policies, not just the death penalty.

As a nation, we are now digging ourselves out of decades of devastation wrought by those empty solutions, as incarceration has ballooned. A close analysis of the death penalty proves instructive here, for in many ways capital punishment is a microcosm of the larger criminal justice system’s failures.

A shrinking number of public officials have steadfastly defended the death penalty, despite mounting evidence of its ineffectiveness as a public policy. The deterrence argument—that the death penalty saves lives—provided a basis for supporting the death penalty. For example, an influential study in 1975 by Isaac Ehrlich made the case that the death penalty has a strong curbing effect.² But Ehrlich’s and other studies purporting to find a deterrent effect for the death penalty have not held up under scrutiny. A 2012 report by the National Research Council examined numerous studies regarding the death penalty and deterrence, and concluded that there is no credible evidence to establish that the death penalty impacts crime rates one way or the other.³

In fact, the death penalty not only does not save lives, it also puts lives at risk. Advances in technology such as DNA testing have revealed to the public that the criminal justice system is far from perfect. Since 1973, 159 individuals in the United States have been wrongfully convicted, sentenced to death, and later exonerated.⁴

Such an imperfect system comes with a high price tag. Study after study has found that states spend millions of dollars more on death penalty cases than on life sentences, due to the lengthy trials and complex jury selection, sentencing, and appeals processes of capital cases.⁵ Indeed, the death penalty comes with high costs—both human and fiscal—and without demonstrable benefits.

Despite its problems, the death penalty has endured for decades. But in an environment of greater interest in criminal justice reform, the death penalty appears to be losing its grip. The number of death sentences and executions has decreased, and seven states in the past decade have repealed the death penalty.⁶ Increasingly, the public and lawmakers alike are questioning this broken policy alongside other criminal justice policies needing reform.

Slavery, Lynching, and Debates over the Death Penalty

Beyond the death penalty’s threat to innocent life, its high cost, and its lack of deterrence, it results in persistent racial bias. This problem has plagued the death penalty in America since its inception. An analysis of the death penalty’s application throughout history reveals clearly its role as a tool of racial oppression.

In his work detailing the history of the death penalty in America, Stuart Banner details how fear over slaves revolting resulted in a proliferation of laws outlining capital crimes specifically for this class of people. The state of Virginia, for instance, worried that slaves would try to poison their masters, and made preparing or administering medicine by a slave a capital offense. In Georgia, striking whites twice—or once, if it left a bruise—constituted a capital offense.⁷

The end of slavery did not mark an end to the death penalty’s racial bias. During the Jim Crow era, the practice of lynching terrorized African Americans in the South. As some authorities intervened to stop lynching because of the criticism it generated, executions came to stand in its place as a way to inflict violence on African Americans with impunity.⁸

The execution of George Stinney Jr., in 1944, illustrates this harsh reality. Posthumously exonerated in 2014, Stinney was the youngest individual executed in the United States in the twentieth century. An all-white jury convicted the fourteen-year-old African American for the murder of two white girls after a two-hour trial and ten minutes of deliberation; he was executed less than three months later.⁹

Today, race continues to play a significant role in who is executed. When a victim is white, the odds are much greater that the case will end in an execution than if the victim is Black.¹⁰ Such a justice system implies that the lives of Black victims matter less than other lives.

These racial disparities are entrenched and well known, but there has been reluctance to incorporate this message into anti–death penalty campaigns. Studies of the anti–death penalty movement by both Herbert Haines and Sandra Jones found wariness among some activists to bring focused attention on the death penalty’s racial bias.¹¹ One worry is that such a message may alienate moderate whites from supporting efforts to limit or end the death penalty. Pollsters have repeatedly told criminal justice reformers over many decades that campaigns cannot win if they highlight messages about race.

There are dangers in excluding an analysis of racial bias, however. The racial disparities in the criminal justice system remain a shameful injustice, and it will be far more difficult to address these disparities if we continue to ignore them in the very campaigns that should be designed to fight them. Furthermore, coalitions working against the death penalty may weaken themselves by not emphasizing a racial justice lens in their work. EJUSA’s successful death penalty repeal campaigns in Maryland, Delaware, and Connecticut demonstrate the power that can be generated by multiracial coalitions that adopt racial justice messages.

Case Study: Mobilizing Survivors of Color in the Connecticut Anti–Death Penalty Campaign

In a recent campaign in Connecticut, Equal Justice USA saw up close the power that communities of color have exercised in eliminating broken yet entrenched criminal justice policies. An article by Dr. Khalilah Brown-Dean and Dr. Ben Jones documents the lead role that communities of color, especially those impacted by violence, played in ending Connecticut’s death penalty.¹²

Connecticut had a death penalty that, like in most states, suffered from racial bias. A study found Connecticut’s implementation of capital punishment to be infected with arbitrariness and racial bias, as minority defendants convicted of murdering white victims faced a much higher likelihood of being sentenced to death than others.¹³ However, there was strong resistance to ending the death penalty. In fact, a 2007 triple homicide in Cheshire, Connecticut garnered national media attention and spurred calls for the death penalty. The narrative of the sole survivor, a wealthy white man, emerged, and with it media stories of his quest to seek the death penalty for the person who killed his loved ones.

Initially lost in these discussions over the death penalty were the implications of applying the death penalty to some murders and not others. When a state uses the death penalty for what it deems the “most heinous murders,” it necessarily sends the message that there are other murders not as heinous—a message that many families of murder victims in Connecticut found to be deeply offensive. It also creates a false narrative that all crime survivors want harsh punishment for the responsible party, and that without it cannot heal. In fact, there is evidence to the contrary. In the first ever national survey of crime survivors, the Alliance for Safety and Justice found that survivors prefer investments in rehabilitation to costly punishment.¹⁴

Victoria Coward of New Haven, whose son, Tyler, was murdered the same year as the triple homicide, worked with EJUSA to call attention to the misplaced priorities embodied by the death penalty. The accused in both cases were processed in the same court, but Tyler Coward’s murderer was offered—and took—a plea deal. Victoria Coward stated: “If we are serious about helping surviving victims—all of us—we need to see the bigger picture. The bigger picture is that the death penalty is given in fewer than 1 percent of cases, yet it sucks up millions and millions of dollars that could be put toward crime prevention or victims’ services. What I wouldn’t give for a tiny slice of those millions to give my grieving daughters some professional help to process the death of their brother.”¹⁵

Murder victims’ families need support, but they don’t receive it through the state seeking the death penalty. Instead, the death penalty often inflicts further harm by perpetuating racial biases, wasting limited resources, and forcing murder victims’ families to endure a painful and prolonged legal process. Motivated by these concerns, 179 Connecticut murder victims’ family members came together with EJUSA to create a sign-on letter calling on Connecticut lawmakers to end the death penalty.¹⁶

Throughout the 2012 legislative session, local, state, and national leaders of the NAACP joined these calls for an end to the death penalty, citing its persistent racial bias in Connecticut and across the country.¹⁷ Their mobilization efforts came on the heels of the 2011 execution in Georgia of Troy Davis, an African American executed on highly questionable evidence.¹⁸ The NAACP lost the national battle, but in response it renewed its commitment to ending the death penalty. The NAACP worked with EJUSA in making Connecticut its first priority.

Connecticut lawmakers responded to these calls for action and repealed the death penalty in 2012, often citing racial justice concerns and those of murder victims’ families when explaining their rationale for doing so.¹⁹ Bringing attention to the death penalty’s racial bias did not hinder efforts to end it, but were in fact key to realizing this goal.

The Centrality of Crime Victims in Redefining the Justice System

In the current justice system, crime victims are heavily used as a means for the system to justify itself; these victims are largely white and middle class. Theirs are the crimes that law enforcement agencies invest their time in solving and prosecuting. When policies are enacted “for the victims,” it is primarily white and middle-class victims who capture public sympathy.²⁰

The success of the Connecticut campaign to repeal the death penalty mirrors several successful campaigns in the criminal justice reform movement that have raised up the voices of diverse crime survivors.²¹ When crime survivors are at the center of discussions about the justice system, new opportunities for action emerge.

A recent report by a team that included Shari Silberstein, EJUSA’s executive director, makes this point. Bridging the Divide: A new paradigm for addressing safety, crime and victimization calls for a justice system that doesn’t pit the needs of different criminal justice stakeholders against each other. The report, the culmination of two years of dialogue between criminal justice reform advocates and victim advocates, highlights common ground around the need for systems of accountability that are fair and equitable; resources and support to keep communities safe; and greater support for the survivors on whose behalf justice is served.²²

The pain and suffering of crime victims of any background merit respect and attention. This general principle would strike few as controversial, but what many miss is that people of color are more likely than white people to be crime victims. In communities of color, victims and offenders often come from the same neighborhoods and even families. Moreover, many offenders have histories of victimization that went unaddressed and may have contributed to later harmful behavior.²³

The vast majority of survivors’ needs—counseling to cope with trauma, medical care, financial assistance for lost wages, funeral expenses, time off from work, and more—are purported to be handled by money from the Crime Victims Fund, established by the Victims of Crime Act (VOCA). However, crime survivors of color have the least amount of access to victim services and compensation. There is still tremendous work to be done to increase access for crime survivors of color and to lift their voices within the broader criminal justice reform movement. The growing national interest in criminal justice reform presents a tremendous opportunity to develop new tools and responses to violence—ones that honor the needs of the community and ultimately keep communities safe. These tools include public health programs that reduce violence, restorative justice practices, the expansion of victim services, and many other innovative, evidence-based solutions that address safety and rehabilitation holistically.

Looking Within: Organizations Adopting a Racial Justice Lens

EJUSA has pointed out that the broader anti–death penalty movement has been slow to incorporate conversations of race, racism, and the needs of communities of color within its call for change. However, over time there have been meaningful strides within a largely white, middle-class nonprofit community to take on broader criminal justice reform using a racial justice lens. EJUSA’s own work in the Connecticut campaign stands as a powerful example of how a racial justice framework can be applied to effectively win a campaign. This example has been shared with many organizations to highlight what is possible when a communications strategy skillfully foregrounds the voices of survivors of color.

As a nonprofit professional of color working among predominantly white staff at EJUSA, I believe there is tremendous opportunity for my organization to take ownership of and expand its racial justice framework so that it not only becomes part of organizational culture but also provides a way of looking at new opportunities for action within the larger movement.

Over the course of eleven years of work in diversity training and management, I have observed many well-meaning mistakes made by organizations in an effort to expand racial justice work. Often, when largely white organizations begin to take on operating within a racial justice framework, there is a call for dialogue among staff. Diversity trainers are hired, often to educate white advocates about their privilege. Little discussion is focused on the needs and/or heterogeneity of staff of color: nonprofit professionals of color are either heavily utilized to share their own stories of “difference” or kept protected from such requests of disclosure by keeping conversations relatively superficial.

As EJUSA expands its racial justice work and increases racial diversity among staff, we are learning to harvest new insights and practices. I provide a number of these practices below for other organizations that are interested in adopting a racial justice framework:

1. Define what racial justice means for your organization. Racial justice can be enacted on an individual, interpersonal, and structural level. Some argue that organizations are not sufficiently addressing racial justice unless actions are taken on all levels, while others believe that any action that addresses racial inequity is meaningful work.
2. Build alliances with organizations striving for racial justice. This includes organizations led by people of color as well as organizations that are led by white allies. Explore how each organization can support and learn from one another.
3. Assess the capacity of your organization to absorb new knowledge, behaviors, and new hires. It is hardest to change staff culture when staff are overextended and unable to process organizational change. While directives from senior leadership may initiate change, staff buy-in creates an open environment for real change to take root.
4. Invest in ongoing consultation services to bring a racial justice paradigm into your organization. This investment goes beyond one-time training. Vet consultants to ensure they are a good fit for your organization—fit is critically important to the success of a consulting relationship.
5. Don’t assume that all people of color believe in a racial justice framework. This doesn’t make their perspective any less valuable—it highlights the danger in tokenizing staff of color instead of honoring differing perspectives.
6. Have a discussion about the role of personal and/or emotional disclosure within staff meetings or within organizational culture generally. If your organization has not created space to share personal experiences before, then conversations about race and racism should not be the first in which personal experiences are shared.
7. Make sure there is a clearly designated team within the organization responsible for keeping track of the process. This is critical in ensuring that people of color are not tacitly expected to bear the responsibility of driving conversations about race.
8. Provide regular (i.e., monthly) opportunities for affinity groups (organized by race or other categories) and for whole staff groups to reflect and share observations, challenges, successes, and feedback about the process of change. Begin with the history of the organization and any past oversights surrounding issues of race, without ascribing blame. By addressing past missteps and successes, leaders model open communication and opportunities for growth and improvement.

…

Equal Justice USA has evolved over the course of its twenty-seven-year history. As a single-issue organization focused on repealing the death penalty, EJUSA, like the larger anti–death penalty movement, did not always prioritize conversations about racial justice—despite clear evidence that the death penalty’s application is racially biased and historically situated. Within the last ten years, EJUSA has made a commitment to exploring race, and has demonstrated that campaigns become stronger when they include not only the voices of crime survivors generally but also the voices of communities of color specifically. Now, the organization has taken another step and has expanded its mission to continue to support the needs of crime survivors and address untreated trauma within communities of color—using a racial justice framework. For our organization to adopt this framework, it requires staff to look within and explore new practices that will allow an open staff environment for change. As a nonprofit professional of color, I support these efforts as part of a team, and look forward to their implications for our expanded mission. The movement grows exponentially when we do the hard work of addressing areas of weakness and identifying opportunities to be shaped by the needs of those with whom we most want to serve.

Notes

1. See “Death Penalty,” Gallup.com, accessed October 30, 2015.
2. Isaac Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” The American Economic Review 65, no. 3 (June 1975): 397–417.
3. National Research Council, Deterrence and the Death Penalty, Committee of Deterrence and Death Penalty, eds. Daniel S. Nagin and John V. Pepper, Committee on Law and Justice, Division of Behavioral and Social Sciences and Education (Washington, DC: The National Academies Press, 2012).
4. Death Penalty Information Center, The Innocence List, accessed August 29, 2017.
5. Maurice Chammah, “Six Reasons the Death Penalty is Becoming More Expensive,” The Marshall Project, December 17, 2014.
6. Death Penalty Information Center, States With and Without the Death Penalty, as of November 9, 2016. Equal Justice USA has been instrumental in death-penalty repeal efforts in the past decade. More information can be found at ejusa.org/about-us.
7. Stuart Banner, The Death Penalty: An American History (Cambridge: Harvard University Press, 2002), 9.
8. See Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror, report summary (Montgomery, AL: Equal Justice Initiative, 2015): 4, 6.
9. Lindsey Bever, “It took 10 minutes to convict 14-year-old George Stinney Jr. It took 70 years after his execution to exonerate him,” Washington Post, December 18, 2014.
10. Frank R. Baumgartner, Amanda J. Grigg, and Alisa Mastro, “#BlackLivesDon’tMatter: race-of-victim effects in US executions, 1976–2013,” Politics, Groups, and Identities 3, no. 2 (2015): 209–21.
11. Herbert H. Haines, Against the Death Penalty: The Anti–Death Penalty Movement in America, 1972–1994 (New York: Oxford University Press, 1996); and Sandra J. Jones, Coalition Building in the Anti–Death Penalty Movement: Privileged Morality, Race Realities (Lanham, MD: Lexington Books, 2010).
12. Khalilah Brown-Dean and Ben Jones, “Building authentic power: a study of the campaign to repeal Connecticut’s death penalty,” Politics, Groups, and Identities 5, no. 2 (2017): 321–42.
13. Lincoln Caplan, “The Random Horror of the Death Penalty,” New York Times, January 7, 2012.
14. Crime Survivors Speak: The First-Ever National Survey Of Victims’ Views On Safety And Justice (Oakland, CA: Alliance for Safety and Justice, August 2016).
15. Victoria Coward, “Murder Victim’s Mother Suggests the Big Picture Is More Important,” Op-Ed, Connecticut News Junkie, May 13, 2011.
16. Terrance Pitts, “Why Connecticut Might End the Death Penalty,” Voices, Open Society Foundations, April 9, 2012. Jordan Fenster and Register Staff, “Families of slaying victims rally against death penalty in Connecticut,” New Haven Register, February 29, 2012.
17. “NAACP Calls for an End to the Death Penalty on One Year Anniversary of Troy Davis’s Execution,” National Association for the Advancement of Colored People, September 20, 2012, accessed August 15, 2017 [broken link]; and “Connecticut House, Senate Vote to End Death Penalty,” National Association for the Advancement of Colored People, accessed August 15, 2017 [broken link].
18. “Significant Doubts About Troy Davis’ Guilt: A Case For Clemency,” National Association for the Advancement of Colored People, accessed August 15, 2017.
19. Brown-Dean and Jones, “Building authentic power.”
20. Lisa L. Miller, “The Invisible Black Victim: How American Federalism Perpetuates Racial Inequality in Criminal Justice,” Law and Society Review 44, no. 3-4 (September/December 2010): 805–42.
21. Paige St. John, “47 backers put a new face on victims of crime,” Los Angeles Times, April 20, 2015.
22. Pat Clark et al., Bridging the Divide: a new paradigm for addressing safety, crime, and victimization (Santa Cruz, CA: Fund for Nonviolence, 2014).
23. Carla Murphy, “Criminals, Victims and the Black Men Left Behind,” Colorlines, August 4, 2014.