| Book Review | Law and History Review, 27.3

Book Review

Charles J. Ogletree, Jr., and Austin Sarat, From Lynch Mobs to the Killing State: Race and the Death Penalty in America, New York: New York University Press, 2006. Pp. 320. $76. (ISBN 978-0814740217).

Problems that plague us spawn questions that trouble us. How did we come to be in this seemingly intractable situation and how might we find a way out? For matters both entrenched and complex, such as those involving issues of race, answers are elusive, though the quest beckons with ever-increasing urgency. Stoking the hope that we can find a better path requires formulating questions carefully and searching earnestly for guidance. In short, the way out starts with a thorough assessment of the way in, the refusal to remain mired there, and the willingness to envision what has not yet been.

In this spirit, Professors Charles Ogletree, Jr., and Austin Sarat have brought us From Lynch Mobs to the Killing State: Race and the Death Penalty in America, an interdisciplinary anthology that asks us to consider what would need to change to sever the issue of race from the decision to impose the death penalty, to remove at last the color-coded meaning from the principle of equality before the law when what is being adjudicated is as ultimate as the worth of human lives and the use of state power to end them. Drawing from law, history, sociology, and political science, this insightful collection of essays confronts directly the death penalty's long-standing entanglement with race in America and views through many lenses the nature of their unique and intimate relationship. In the process, the reader's grasp of the evolution and implication of the racialized dynamic of crime and punishment grows and deepens.

As the book's evocative title suggests, the evident connection throughout American history between race and the death penalty gains additional traction in the era of lynching. While the introduction indicates that "the death penalty has its historical origins in lynching," it may be more apt to state that the cultural norms that brought us lynching also figure substantially in the administration of the death penalty, and that the origin story for each lies clearly in America's race-based system of chattel slavery. When the slave system, so influential in the building of the nation met its end, not by consensus but by force, the racial ideologies that had infused and justified that system for centuries invariably continued to flourish. Particularly in a newly destabilized Southern social structure, this deep-seated set of racialized beliefs sought alternate forms of expression. Like slavery, lynching revealed a brutal racial logic consistent with these beliefs. So too did state-imposed death. The power of Ogletree & Sarat's text rests in its illumination of the related but distinguishable methods employed across time to support the ideologies of racial hierarchy pervading our nation.

In part 1 of the text, entitled "The Meaning and Significance of Race in the Culture of Capital Punishment," Stuart Banner's essay, "Traces of Slavery: Race and the Death Penalty in Historical Perspective," hews closely to origins. Banner describes in considerable detail the system by which slaveholding states with large black populations enforced social control through the codification of race-specific definitions of capital crimes—in other words, crimes punishable by death only for blacks. After slavery's abolition, these formal inequalities were transformed into race-inflected capital punishment practices, including lynchings, sentencing discretion vested primarily in white jurors, and execution rituals (whether official or unofficial) staged to communicate reinforcement of the norms of white racial dominance.

Timothy V. Kaufman-Osborn supplements this analysis in "Capital Punishment as Legal Lynching?" offering a theoretical frame for understanding the similarities and distinctions between lynching and capital punishment. His essay suggests that through their use of racialized violence, both lynching and capital punishment reproduced the racial hierarchy that animated slavery, linking blackness with dangerousness, criminality, immorality, and inferiority. When developments in the twentieth century created the need to reform the capital punishment system in a manner that could mask those racial connotations even while generating them, capital punishment practices were malleable enough to accomplish these dual purposes. The process by which race-based practices continue to thrive in the contemporary system of capital punishment, while they "appear ... to disappear," are noted by Osborn, then elaborated in essays by Ogletree and renowned capital defense attorney Stephen Bright. Both Ogletree and Bright focus primarily on capital punishment's racially disparate effects, and the specific failures of courts and legislatures to ameliorate them, despite numerous opportunities to do so.

Social scientists Michael Radelet and Glenn Pierce add a chapter detailing their statistical analysis of the Illinois death penalty—influential in Governor George Ryan's 2003 decision to empty Illinois' death row—that documents what have become by now familiar findings: death sentences are imposed most frequently on those convicted of murdering white victims in nonurban areas. Professor Mona Lynch provides a helpful tour of social science research that explains why these racially disparate outcomes remain: because America's long-standing macro-ideologies of race reside in the psychological and cognitive microprocesses of capital jurors. Though they often operate beneath the conscious level, these stereotypes and ideologies are activated during a criminal trial, exacerbated by the process of jury selection and jury instruction, yet obscured by law's claim to evenhandedness and neutrality. Consequently, jurors in largely unwitting fashion render what Benjamin Fleury-Steiner calls "death in whiteface." This expression reverses the imagery of minstrelsy to portray a vivid picture of death sentences that are obtained when jurors don the ideologies of white racial dominance and make life/death decisions through the mechanism of racial stereotypes, such that "the death penalty invests in what the United States has struggled for centuries to overcome."

These varied yet complementary essays suggest certain modifications in death penalty law and procedure—often through critique of the remedies thus far foregone and the woefully inadequate steps undertaken—that hold potential to reduce the racialized use of the death penalty. A number of the authors praise recent events that have limited the scope of the death penalty and read signals that forecast a continuation of that trajectory. Yet the clarity of the text's message concerning the co-constitutive qualities of our historically grounded systems of race and death sentencing limits the likelihood that the two are truly separable. This creates a strong current of abolitionism that courses through the volume.

To understand the current death penalty system as a bequest of the slave system is to hear the echoes that are intentionally evoked by the term "abolitionism." The tightly braided histories of race and the death penalty render it difficult to imagine a capital punishment system so thoroughly reinvented that it did not make use of the narratives of race as the socially constructed determinants of dangerousness and criminality that underlie death penalty judgments. If we cannot foresee the time when we are no longer haunted by our past, then a timely and measured response to racial inequalities in death penalty decision making is indeed, as some of the authors explicitly state, the abolition of death as punishment.

Yet when Austin Sarat writes in the final chapter about the rhetoric of the "new abolitionism," he is not highlighting the overlapping concerns of the movement to abolish slavery and the movement to abolish the death penalty. He is comparing to its most recent incarnation the era of death penalty abolitionism that predates the Supreme Court's 1972 landmark decision in Furman v. Georgia, finding all state death penalty statutes unconstitutional. Between that era and the present, the rhetoric has changed from moral arguments against the death penalty grounded in concepts such as human dignity to arguments about the unfairness and fallibility of death penalty administration. While arguments about the unfairness produced by racism hold some prominence in the new abolitionism, Sarat observes that they have been moved from center stage by arguments about erroneous convictions and the specter of executing the innocent.

Noting these rhetorical trends, Sarat expresses concern that while new abolitionist arguments about racial disparities serve to problematize the role of race in the death penalty, they do not sufficiently reverse their gaze to problematize the role of the death penalty in constituting the meaning of race in America. At this deeper level of analysis, embracing the death penalty is understood not just as a reflection of racial dominance, but as a practice that produces and sustains it. Like lynching, death penalty practices take particular cultural forms and work in concert with other systemic social practices to maintain racial hierarchy. This multilayered analysis, Sarat suggests, may offer a conceptual mechanism broad enough to challenge not only capital punishment but all of our nation's mutually reinforcing practices that have given content to the nature and dynamics of race, devastating the lives of some in the interests of elevating the lives of others, and undermining the prospects for equality that we profess to hold dear.

Phyllis Goldfarb

George Washington University Law School

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