Racial Discrimination and the Death Penalty

New Yorker

"In 1972, the Supreme Court struck down capital punishment, in Furman v. Georgia, leading to a four-year moratorium on the penalty in the United States, thanks to a winning strategy devised by the Inc. Fund lawyers. They argued that, despite declining public support for the death penalty, states were keeping it so that they could impose it on marginal groups, including the poor and the powerless as well as blacks.

Five years later, in Coker v. Georgia, the Court decided that “the sentence of death for the crime of rape is grossly disproportionate and excessive punishment, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” The Inc. Fund was lead counsel. (The Court struck down capital punishment for rape of adult women in that case. In 2008, it ruled that capital punishment for child rape is unconstitutional.) The opinion for the Court did not mention race or racial discrimination, even though, of the four hundred and fifty-five men executed for rape between 1930 and 1967, four hundred and five were black, and almost all had been convicted of raping white women. It also took no notice of a brief by Ruth Bader Ginsburg—filed on behalf of the American Civil Liberties Union, the National Organization for Women Legal Defense and Education Fund, and other groups—arguing that punishing rape with death was tied to Southern traditions that “valued white women according to their purity and chastity and assigned them exclusively to white men.” The Court avoided addressing the racial disparity in capital rape cases, and it avoided addressing the racial disparity in capital cases in general. That did not make the problem of racial discrimination go away."