"Good gracious! Anybody hurt?"
"No'm. Killed a nigger."
"Well, it's lucky; because sometimes people do get hurt."
--Mark Twain, The Adventures of Huckleberry Finn
On September 6, 1991, Donald (Peewee) Gaskins was executed in Columbia, South Carolina, for the 1982 hired murder of Rudolph Tyner, making Gaskins the first white in the U.S. since 1944 to be put to death for killing a black person (and the first in South Carolina since 1880). Gaskins had nine previous murder convictions, and he had confessed to shooting, stabbing, or drowning a total of 13 people, burying them in the backwoods. As chief defense lawyer David Bruck (now Susan Smith's attorney) commented at the time, "That's apparently the sort of criminal record a white man needs to be executed for the murder of a black." Tony Cimo, the white man who hired Gaskins for the killing, was sentenced to eight years. He served only six months and was immortalized soon thereafter in the CBS television movie Vengeance: The Tony Cimo Story.
Gaskin's story typifies the racial bias of America's judicial system, which turns death row into the second apartheid state even as the first disappears. The story may be familiar, but a few ghastly highlights bear repeating:
According to a 1979 Department of Justice study, between 1930 and 1969 405 of the 455 men executed for rape were black. Black men convicted of rape were seven times more likely to be executed than white men convicted of the same crime. The rape of a white woman by a black man was 18 times more likely to be punished by death than any other racial combination.
During World War II, when less than 10 percent of American troops were black, black men were almost four times more likely to be executed after court martial than their white counterparts.
According to the most recent edition of Death Row, USA, a quarterly publication from the NAACP Legal Defense and Education Fund, 40 percent of America's 3,009 death row inmates are black, even though blacks make up only 13 percent of the population. In Illinois, with a 15 percent black population, death row is 62 percent black.
Even F.W. de Klerk ultimately couldn't defend apartheid, yet every political candidate in America must profess unwavering support for the death penalty, despite its racist application, lest he or she be maligned as "soft on crime."
What, then, are we to make of South Africa's recent abolishment of the death penalty? Putting malice aside, the country's four-month-old Constitutional Court unanimously approved the measure as a necessary first step toward establishing an egalitarian society in which everyone is assured basic rights. "By committing ourselves to a society founded on the recognition of human rights," judge Arthur Chaskalson wrote, "we are required to value these rights (to life and dignity) above all others."
The decision was handed down June 6--in the same month President Clinton began airing a precampaign television commercial in which he proudly takes credit for expanding America's death penalty to include some 50 new offenses like drive-by murders and violence against "maritime navigation." Clinton's message is clear: he's protecting our rights by executing more of our dangerous criminals. Clinton's new crime bill expands the death penalty in a manner unprecedented by even his archconservative predecessors; aggressive promotion of the death penalty plays increasingly well in America.
The ironies are obvious and disturbing. South Africa, "founded on the recognition of human rights," finds capital punishment at odds with the individual's right to life and dignity, while the United States, founded on a guarantee of inalienable rights to life, liberty, and the pursuit of happiness, expands the death penalty as a necessary safeguard to civic harmony. South Africa, after suffering under decades of government-enforced racial oppression, determines that "[r]etribution cannot be accorded the same weight under our constitution as the right to life and dignity"; the United States, after its decades-long indictment of South Africa for its system of apartheid, continues to mete out the death penalty's retribution in a blatantly racist manner, all the while championing its imagined position as world leader in the protection of human rights. At least South Africa's National Party had the courage to put their cards on the table.
Like South Africa under apartheid rule, every branch of our government is complicit in continuing the racist tradition of capital punishment in America. Our judiciary not only hands down death sentences in a racially disproportionate way, but the Supreme Court has virtually guaranteed that no African-American defendant can ever hope to challenge the constitutionality of the practice. The Court's notorious 1987 ruling in McCleskey v. Kemp saw to that. Warren McCleskey had been sentenced to death for killing a white police officer during an armed robbery in Fulton County, Georgia. On appeal, his attorneys assembled one of the most comprehensive statistical analyses of racial disparity in capital sentencing, examining the cases of more than 2,000 Georgia defendants convicted of murder or voluntary manslaughter between 1973 and 1979. McCleskey's attorneys showed that 21 percent of black defendants were sentenced to death when their victims were white, while only 1 percent received the death penalty when their victims were black. Historically, supporters of the death penalty have argued that these numbers reflect that black-on-white crimes are typically more brutal than black-on-black crimes. But even after adjusting their study for 39 nonracial aggravating circumstances (such as whether the murder was committed during a robbery, there were multiple victims, or the defendant had a prior record) the attorneys showed that an African-American defendant was still 4.3 times more likely to receive the death penalty if his victim was white--and this in the very jurisdiction where McCleskey was sentenced.
In his opinion, Justice Lewis F. Powell Jr. wrote that such statistical evidence was not only insufficient to prove McCleskey's case but irrelevant. Powell didn't doubt the validity of the analysis, writing that he "assume[d] the study [was] statistically valid." But unless McCleskey could prove specific discriminatory acts by his prosecutor or judge, Powell contended, even the most convincing pattern of racism in Georgia's application of the death penalty was immaterial (despite the fact that such statistical evidence is routinely used in federal employment discrimination cases--a practice that the Supreme Court has specifically and unanimously endorsed). As one recent law journal commented, "The standard set by McCleskey for proving constitutional violations means that proof of racial discrimination in capital punishment is beyond the capacity of virtually all capital defendants."
In the wake of the judiciary's moral atrophy in McCleskey, it seemed as if our legislative branch might reform the death penalty, creaking toward a collective conscience like de Klerk's parliament in the waning days of his administration. The Racial Justice Act made it to the Senate floor the year after McCleskey was handed down. The bill read in part, "No person shall be put to death in the execution of a sentence imposed pursuant to any law if that person's death sentence furthers a racially discriminatory pattern." Hoping to circumvent McCleskey, the legislation went on to say, "To establish that a racially discriminatory pattern exists...ordinary methods of statistical proof shall suffice....It shall not be necessary to show discriminatory motive, intent, or purpose on the part of any individual or institution." The bill was defeated in the Senate by a vote of 52 to 35. Since then the legislation has been reintroduced and defeated several times. As Bruck wrote in The New Republic, "Racism in the use of the death penalty offends no political power blocs."
If the Supreme Court couldn't bring itself to entertain the notion of racism on death row, many legislators simply couldn't imagine capital punishment in this country without a racial bias. Voicing his opposition to the bill, Senator Charles Grassley of Iowa argued, "You cannot support the availability of capital punishment while supporting the Racial Justice Act." His words echoed that of Supreme Court justice John Paul Stevens in his dissenting opinion in McCleskey: "The Court's decision appears to be based on a fear that acceptance of McCleskey's claim would sound the death knell for capital punishment." Without its racist underpinnings, the death penalty might just dry up and blow away.
With the judiciary and legislative branches complicit in the continuation of a racist death penalty, the only remaining hope lies in the influence of the chief executive. De Klerk's administration, after all, outlawed apartheid. But considering the current political necessity of appearing to be "tough on crime," what other stance can we expect from Clinton besides the one he professes in his self-righteous television spot? In fact, it has been this stance in part that has helped secure his success as a "new" Democrat. After his 1980 defeat in the Arkansas gubernatorial election, when he and his administration were perceived as long-haired hippie liberals, Clinton adopted the more centrist position that won him reelection in 1982 and kept him in the governor's mansion for a decade. That position required him to start executing prisoners, or at least to manufacture the appearance of doing so. As attorney Jeff Rosenzweig told the New Yorker, "[W]hen (Clinton) came back in, he would set new execution dates at just about every stage, every tick in the process of a case, though the parties were nowhere near exhausting their remedies, and the execution dates were almost always stayed. But it enabled Clinton to say, 'Look, see how many executions I've ordered.'" By the time he had finished flexing his gubernatorial muscles in 1992, he had racked up nearly 70 execution dates--for 26 death row residents. In his most horrific display, Clinton, fresh from campainging for the New Hampshire primary, refused to stay the execution of Rickey Ray Rector, a black man with the mental capacity of a ten-year-old. Despite an international outcry, Clinton emerged from the episode without a political blemish. As political consultant David Garth then remarked, "He had someone put to death who had only part of a brain. You can't find them any tougher than that."
In 1935 the South African director of prisons determined that for certain crimes a minimum of six strokes was an effective punishment for whites, while a minimum of eight was needed for blacks. Our capital punishment system tells a similar story: blacks are inherently dangerous and unruly, needing extra manpower to keep them from overpowering us. It's a perverse fantasy encouraged in part by a long legal history of differential punishment for blacks and whites, reminiscent of apartheid-ruled South Africa. In antebellum Virginia, for example, some 68 offenses were considered capital crimes if committed by a slave but were only punishable by imprisonment--at most--if committed by a white person. We have inherited the perfect psychological setup for our acceptance of racism on death row. As South African death penalty abolitionist Etienne Mureinik has written, "Capital sentencing and racial prejudice, whether conscious or unconscious, intersect at the phenomenon of treating people as less than fully people....To decide that someone should die is to say that he or she should cease to be a person. It facilitates that decision if there is some psychological resource permitting the decisionmaker to see the victim in advance as less than fully a person. Racial prejudice, or growing up in a system built on racial prejudice, or even just living in one, are resources of that kind."
South Africa's Constitutional Court was inaugurated on Valentine's Day. The very first case it heard challenged the constitutionality of the death penalty. Supporters of capital punishment argued, like their American counterparts, that the threat of death acts as an important deterrent to violent criminals. In rejecting that argument, the court cited American studies that found that contention to be false. When the court handed down its ruling abolishing capital punishment, one of the loudest voices of opposition came from none other than de Klerk and the National Party, who vowed that chaos would reign and the ruling would be overturned.
Suddenly America finds itself philosophically aligned with the party that instituted apartheid. Furthermore, while South Africa falls in step with the international community by outlawing the death penalty, the United States falls farther behind its contemporaries. In fact the U.S. has turned 180 degrees from its former abolitionist stance. In 1968, when the United Nations called for countries to ensure the right of appeal and competent legal counsel in capital cases, the U.S. delegate touted the resolution as a critical step toward the abolition of the death penalty, even going so far as to state that the death penalty could no longer be justified. In 1972 the U.S. Supreme Court ruled that the death penalty was unconstituional. In 1976 the court reversed its position. Fourteen years later the U.S. delegate to the American Convention on Human Rights declared, "The United States does not support or seek abolition of the death penalty. In our view, imposition of the death penalty for very serious crimes after a fair trial with the full protections of due process, offered by an effective judiciary, is not a violation of fundamental human rights or of international law."
Currently 70 nations, including all of Western Europe, have abolished the death penalty (16 of these, including South Africa, retain it only for exceptional crimes such as treason during wartime). In carrying out its executions, America even refuses to adhere to the international humanitarian standard--outlined in the U.N.'s International Covenant on Civil and Political Rights--that prohibits the death penalty for those under the age of 18. Although the U.S. has signed the covenant a full 26 years after it was adopted and signed by more than 100 countries, it still refuses to abide by its terms. According to Amnesty International, only four nations in the world have executed juvenile offenders since 1990: Saudi Arabia, Pakistan, Yemen, and the U.S. Moreover, the U.S. has executed twice as many juveniles as the other three countries combined.
South Africa has taken another enlightened step forward while we continue to stumble along in the dark. In upholding the death penalty we count among our like-minded partners in crime such stalwart defenders of human rights as Iran, Iraq, Libya and China. For a nation founded on the rights of the individual, we find ourselves in questionable company.
Art accompanying story in printed newspaper (not available in this archive): illustration/Dorothy Perry.