If there’s a reason for the death penalty, it’s name is Dylann Roof.
It’s been six years since Roof, a white supremacist terrorist, murdered nine Black churchgoers at Mother Emanuel AME Church in Charleston, South Carolina. In 2017, he became the first person in the United States sentenced to death for a federal hate crime, and on Aug. 25 of this year, the Fourth U.S. Circuit Court of Appeals upheld that sentencing.
What the three judges of the court said in their unanimous ruling is undeniable: “No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.”
I agree wholeheartedly that he deserves the worst possible punishment. Where I struggle is our “just society’s” harshest penalty.
BREAKING: A federal appeals court has upheld the conviction and sentence of a man on federal death row for the racist slayings of nine members of a Black South Carolina congregation. A three-judge panel affirmed Dylann Roof's conviction and sentence. https://t.co/4TJzWeA60h— The Associated Press (@AP) August 25, 2021
A just society cannot impose a penalty as harsh as death, even for the worst of us – and Roof represents the worst of us. I can’t say confidently that Dylann Roof does not deserve death, but I can’t say we as a nation and society have a right to kill him, either.
Before continuing, I want to make clear that I could not make an infallible case against someone who wants to see Roof pay the ultimate price for his crimes, nor do I want to.
What I will do is argue that we have an obligation to seek an alternative to death at every turn. It’s a symbol of our government’s existing monopoly on violence, it's an affront to our values against cruelty and it's been ended once before. It should end again.
How Georgia ended the death penalty in America – then brought it back
People in America had been put to death for myriad reasons for centuries leading up to Furman v. Georgia in 1972, when it all came to a halt for a brief moment. The Supreme Court made a narrow 5-4 decision to invalidate all state government death penalty policies.
The majority’s arguments ranged from acknowledging what appeared to be a racial bias against Black defendants — more on this later — to Justices Marshall and Brennan’s belief that death as punishment was unconstitutional under any circumstances.
Obviously, this did not last. Four years later, they decided on another case from Georgia, the state versus Troy Leon Gregg, that if a separate trial to determine a death sentence was held after an initial establishment of guilt, then it did not necessarily violate a citizen’s right against cruel and unusual punishment.
Today, 27 states, the federal government and the American military all have legal capital punishment and use it to varying degrees.
As a result, 1,500 defendants have been killed since 1976. For four brief years, we turned the page. Now, it seems we’re back at the beginning of the book.
Cruel and unusual
Bryan Stevenson founded the Equal Justice Initiative in part to exonerate innocent death row prisoners, because the U.S. does not offer legal counsel to them like in other legal proceedings. According to EJI, for every ten people executed in America, one death row inmate has been discovered to be innocent and released.
Stevenson does not solely defend the innocent, however. EJI’s work supports a future of justice that is rehabilitative and uncruel. They provide legal counsel for death row prisoners, many of whom are poor, because the government refrains from offering attorneys to them. For the life of me, I cannot see how this is not a violation of the Sixth Amendment to the Constitution.
“I don’t think the question of capital punishment in this country can be answered by asking: ‘Do people deserve to die for the crimes they’ve committed?’” said Stevenson in a 2018 NowThis video. “I think the threshold question is: do we deserve to kill?”
One of the most recent executions by the federal government — Joe Biden has yet to oversee one as president — was that of Brandon Bernard in December 2020 under President Donald Trump. Bernard was involved in a double-murder in 1999, and maintained that while he made mistakes, he did not shoot anyone or even hold a gun.
Celebrities and public figures spreading awareness about death row inmates is not new, but Bernard’s case saw unprecedented attention as one of the first federal executions in the “lame-duck” session of a presidency in over 100 years.
Kim Kardashian, who met with Trump about granting clemency to Alice Johnson, also took up Bernard’s defense. “He was 18 at the time,” Kardashian wrote on Twitter. “He’s spent decades in prison [without] a write up, helping at-risk youth.”
#BrandonBernard should not be executed:— Kim Kardashian West (@KimKardashian) December 10, 2020
1. He was 18 at the time.
2. He was not the shooter.
3. The prosecutor and 5 of the jurors now support clemency.
4. He’s spent decades in prison w/out a write up, helping at risk youth.
5. There’s bipartisan support for his commutation. pic.twitter.com/18GugdtuOs
What’s truly haunting is that five jurors, all of whom previously sentenced him to death, came out to support a commutation of Bernard's sentence leading up to his execution. Information was allegedly withheld from them in his 2000 trial, and they changed their minds — too late.
Racial bias is obvious throughout our prisons and police departments, so it tracks that capital punishment is afflicted, as well. Katherine Beckett and Heather Evans studied the role of race in Washington state’s capital sentencing from 1981 to 2014 and found that, controlling for all other legal factors, Black defendants were four and a half times more likely to be sentenced to death as non-Black defendants.
Additionally, death notices were more likely to be filed for consideration for crimes with white victims than those with non-white victims. Washington's death penalty was abolished in part due to this research.
Georgia should be next — or should have abolished first. A 2019 study from the University of Denver found that “defendants convicted of killing white victims in Georgia are 17 times more likely to be executed than those convicted of murdering Black victims.”
America’s culture of justice is perhaps more defined by violence than any other democratic nation. Our police forces have morphed into paramilitaries with qualified immunity and “killology” training. As the authors of the DU study say, “death penalty has a race problem as it is that the race problems of America manifest themselves through [its] implementation.”
Stephen Greenwald has researched and worked in the field of death penalty cases for two decades, and sees the process as a defining mark of our harsh interpretation of justice.
In a country that houses nearly one quarter of the entire world’s imprisoned population, “having the death penalty … is the capstone to the criminal justice system,” says Greenwald. If we can abolish the death penalty, maybe we can retool the entire culture.
Sentencing reform could ensue, or maybe we could finally materially address the racist and violent outcomes of our militaristic policing of communities of color. Reforming capital punishment would not just save the lives of the innocent and the wrongly accused, but at its best could rethink how we dole out punishment in every phase of the justice system.
Proceduralism, barriers to legal counsel and racist and classist discrimination in our justice system make it so that we get this wrong sometimes. That we’ve ever gotten it wrong once should damn the whole system, and the highest court in the land ruled exactly that nearly fifty years ago.
It’s not enough that Dylann Roof deserving the harshest punishment is the right decision, which I know to be true. It’s that the same hand — our hand — that will give him lethal injection or pull the trigger in the firing squad could later be murdering the innocent and the repentant, just like he did.