Welcome to what we expect will be a very interesting and productive discussion of Michael Cholbi and Alex Madva‘s, “Black Lives Matter and the Call for Death Penalty Abolition.” The paper is published in the most recent edition of Ethics and is available through open access here. Erin Kelly has kindly agreed to contribute a critical précis, and it appears immediately below. Please join in the discussion!
Erin Kelly writes:
Michael Cholbi and Alex Madva’s paper, “Black Lives Matter and the Call for Death Penalty Abolition,” argues that capital punishment wrongs black defendants and black communities, and that the proper remedy for this wrong is abolition of the death penalty. In developing this argument, they make an interesting case for understanding the racial wrongs of capital punishment in political terms—as instances of distributive injustice—rather than (simply) in terms of a failure to achieve retributive justice. I will explore both the nature of their claims about distributive justice and their criticism of retributive justice. I won’t address the case for abolition, which flows naturally from their conclusions about the harm done by the death penalty. Instead I will suggest, briefly, how their argument against the retributive theory could be stronger.
The authors argue that black communities suffer a distributive injustice. Specifically, racial bias and outright discrimination in American legal practices compromise the promise of equal status and equal protection under the law for African Americans. As the authors explain, this represents a harm to the black community, generally speaking, not just to some individual members. The harm the authors are particularly concerned with is related to the death penalty. Their claim is that the existence of the death penalty elicits race-based biases against black defendants and, more generally, against black people.
Empirical evidence supports the conclusion that murders are treated as more heinous when they are committed by blacks and/or against whites. Black defendants are more likely to receive the death penalty than defendants of other races or ethnicities, and defendants overall are more likely to receive the death penalty when their victims are white. Studies citied also show that these two effects interact: cases involving black defendants and white victims are treated the most punitively.
The authors hypothesize that the perception that murders committed by blacks and/or against whites are worse is influenced by the eligibility of defendants for the death penalty. The death penalty requires juries to consider whether some murders are worse—bad enough to receive the death penalty—and this task triggers racial bias regarding the moral status of these murders, or so the authors plausibly argue. Racial disparities in sentencing are not as starkly produced by the possibility of other harsh penalties, including life without parole. For example, one study found that mock jurors who were as likely to impose life without parole on whites as blacks were significantly more likely to impose death on blacks. Another study showed that whites are actually more, not less, likely to support the death penalty when informed about racial bias in capital sentencing. These studies cited by the authors suggest that the prospect of imposing death exacerbates racial bias in sentencing.
This raises a question about why this should be the case. The author’s propose an explanation. They point to anti-black stereotypes that include the belief that blacks are less sensitive to pain, that the family members of black murder victims are less worthy of sympathy, and that blacks are considered either ‘subhuman’ or ‘superhuman,’ in various contexts. The authors argue this: “These specific biases suggest that anti-Black biases are closely linked psychologically with the infliction of bodily violence, i.e., that Blacks are perceived to both suffer less harm from it and are more prone to inflict it. Although such biases are apt to exert some influence across a variety of contexts, e.g., in police officers’ split-second decisions to use force as well as clinicians’ deliberations about prescribing pain medication to Black patients, they are likely to be more salient in capital cases than in cases that do not involve murder or capital punishment.” This is a perceptive and interesting analysis of the impact of particular racialized social attitudes that are animated by the death penalty.
Still, evidence that “the death penalty arouses race-based biases that distort judgments regarding the justifiability of imposing death as a punishment” would not in itself show that the death penalty harms the black community. That requires a further step in the argument, a step the authors take. They argue that the racial bias that is elicited by the death penalty has consequences for how black defendants and black people are treated more generally. They argue that the death penalty elicits and aggravates racial bias that in turn influences “intuitive judgments of guilt, appraisals of incriminating evidence, charging decisions, assessments of the severity of pain and suffering, and general moral intuitions related to punitiveness and desert.” In other words, they argue, “the possibility of a capital sentence may function as a powerful contextual cue that both activates and amplifies the effects of specific anti-Black biases, and second, that the bias- amplifying power of capital contexts is not restricted to capital-sentencing contexts.” The “social meaning” of murder, which varies with the races of the people involved, influences how members of the black community are perceived more generally, at least in relation to criminal law. The bias that is elicited by the legal requirement that murders be “graded” for severity, loops back to reinforce more pervasive biases against black people as less worthy, insensitive to pain and loss, and dangerous, and this affects the likelihood of their being subjected to arrest, prosecution, conviction, and harsher sentences.
In short, the case the authors make, and the empirical findings on which it rests, support the conclusion that “capital punishment is not simply another manifestation of racial discrimination but a context that activates biases that make such discrimination more likely, with cascading effects downward into other aspects of the criminal justice system, such as conviction rates, police use of force, mistrust of criminal justice in Black communities, etc.” (28) These are concrete harms to the black community.
Indeed, some of the empirical findings referred to above suggest that part of the point of the criminal justice system is to intimidate African Americans. There is a long history, at the highest levels, of using the law to denigrate blacks to second-class citizenship, or worse. In the Dred Scott decision (1857), Supreme Court Justice Taney declared unapologetically that blacks in America “had no rights the white man was bound to respect.” 100 years later, the Supreme Court’s reversal, in the Brown decision, on the constitutionality of racial segregation in schools, resulted in its flabby requirement to desegregate “with all deliberate speed.” De facto racial segregation in schools is rampant to this day. The Supreme Court’s death penalty adjudication expresses the same lack of determination to eliminate racial injustice. Evidence for the racially uneven application of the death penalty, considered by the Furman Court in 1972, led to its formulation of facially race-neutral “guidelines” that opened the way for a reinstantiation of the death penalty, affirmed by the court in its 1976 Gregg decision. The predictable persistence of a racially-biased death penalty should be viewed as nothing less than an outcome willfully accepted by the courts.
Cholbi and Madva take a somewhat milder view of the criminal justice system and American society, arguing that failure to address the systematic wrongs done to Black Americans in the criminal justice system constitutes a form of societal or institutional recklessness. They argue that societal support for, or even mere toleration of the death penalty, displays unjustified risk-taking with regard to Black lives. The authors apply the concept of recklessness self-consciously. The legal concept of recklessness does not imply intentional harmdoing or knowledge that harm will in fact occur, though, unlike negligence, it does involve a conscious disregard of an unreasonable risk.
The authors unpack the recklessness claim along two lines. They point to reckless disregard for the impact of the death penalty on both the equal protection and equal status of blacks under law. The equal protection claim is less convincing since it seems to depend on the disputed notion that the death penalty has deterrent value. The authors claim, “Because would-be murderers are justified in believing that individuals who murder Blacks are likely to face lesser costs (the presumptively less severe punishments of prolonged or lifelong incarceration rather than execution) than they would for murdering individuals of other races, the law thus fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” To be clear, when aimed at the police, this claim is believable, since police officers risk no liability to capital punishment when, in their official capacity, they kill blacks. What is questionable is the broader claim the authors seem to have in mind: the deterrent value of the death penalty (vs. prolonged incarceration) when directed to ordinary white would-be murderers.
The idea that the death penalty further undermines the already unequal legal status of blacks is more obviously a serious concern. As the authors emphasize, blacks who are neither charged with nor victimized by murder are affected by how blacks accused of murder are treated by the legal system. (Note that in many states, over 90% of murders are death-penalty eligible.) The legal system’s treatment of the alleged “worst of the worst” affects how black defendants, more generally, will be treated by juries, police, and prosecutors. Blacks can expect to be regarded as less innocent, interactions with the police to be potentially very dangerous, and evidence or mere suspicions against them to be more vigorously pursued. The authors argue, plausibly, that this unequal treatment represents a demotion of legal status. They might have added that it also represents a diminishment of moral status.
These serious harms are missed by popular moral and legal theories whose treatment of matters of criminal justice has a retributive focus. Retributivists might believe that black defendants get more punishment than they deserve, or that white defendants get less punishment than they deserve. But retributivists neglect the social implications of sentencing practices, because those implications are not considered relevant to determining what an individual defendant deserves. The authors make this point, but do not otherwise criticize retributivism, except to express mild skepticism about notions of individual desert. Here I think the authors miss an opportunity to be more critical. A focus on retributive justice does not merely overlook distributive injustices. It obfuscates them. Its individualistic, character-oriented focus amounts to a form of racial bias that diverts attention from the state’s role in perpetuating systematic and institutional racial injustice.