Racism and Retrenchment in Capital Sentencing: Judicial and Congressional Haste toward the Ultimate Injustice


This Article is based upon remarks presented to an audience comprised of a number of lawyers and an even larger number of non-lawyer political and social activists. The objective of the presentation was to inform, to generate discussion, and to provoke responsive action among those persons concerned with the socially harmful policies of the conservative United States Supreme Court as it proceeds forward through the 1990s. In the past several years, the Court has consistently demonstrated its hostility to the rights of people of color. In preparing to address this forum, I deemed it important that social and political activists (and others given to careful thought on such subjects) be aware of the Court’s general trend to defer issues, previously afforded constitutional scrutiny, to the legislatures of the states and to Congress. If, as the Court claims, it is a “national consensus” which guides the Court in upholding death penalty statutes and sentences, then the public needs to know how to raise its voice on the issue. In response to the Court’s acceptance of racial discrimination in the criminal justice system as inevitable, those unwilling to tolerate racism as a permanent part of the American fabric must effectively channel their demands for change. Otherwise the “national consensus,” held so sacred by the Court, will continue to be reached through political deal making between the Court and Congress and significant issues will remain shielded from truly public debate.

This Article explores the decision currently facing citizens of our society: whether they will permit their states to use the ultimate sanction – death – when it cannot be guaranteed that the penalty will be applied without regard to the race of the victims or the defendants. The Article also discusses Congress’ impending decision of whether to curtail further access to post-conviction appellate review for death-row prisoners. Such action has been demanded by the Reagan and Bush Administrations and engineered by the Supreme Court, yet Congress has made no guarantee of competent legal representation at the trial, appellate, or post-conviction stages.

The efforts by the Court and its conservative allies in Congress and the Administration to eliminate human rights for the poor and people of color threaten to stamp out the gains borne of decades of struggle. This essay is intended to reach those who might apply their energies to stopping this rollback of human rights. It attempts to be practical, explanatory, somewhat rhetorical, and nondoctrinal (except to the extent augmented by footnotes). The remarks here do not attempt to expand death penalty jurisprudence, but rather to translate it, so that theory may be transformed into action.

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