A Stretch Too Far: Flaws in Comparing Slavery and the Death Penalty

Michael Conklin

 

INTRODUCTION

The impacts of racial discrimination on the use of the death penalty in the United States has been a frequent subject of study and debate. While much has been written regarding how slavery and racial biases have influenced the death penalty, the relationship between the abolition movements fighting to end slavery and the death penalty remains less explored. In his book, Slavery and the Death Penalty: A Study in Abolition, Bharat Malkani explores the similarities and differences between the two movements.[1] This Article provides an overview of the book’s analysis of the two movements and discusses some of the book’s shortcomings, including its false equivalence on the issue of dignity, its factual inaccuracies, and its lack of discussion addressing counterarguments.

COMPARISONS

While the relationship between the federal government and the states has certainly evolved throughout the course of U.S. history, the slavery abolitionist movement of the early 1800s and the death penalty abolitionist movement of the twenty-first century have both operated under the complexity of nonuniform legal status amongst the states.[2] With this, abolitionists and anti-abolitionists alike can draw comparisons between the two different systems.  Principles of state sovereignty allowed states to become “laboratories” for both the slavery and death penalty abolitionist movements. Abolitionists under both movements can and have drawn on the successes and failures of particular state laws.  Problems can arise, however, when different state systems are in conflict. For example, free states and slavery abolitionists refused to help slaveholders capture escaped slaves. By thwarting attempts to reclaim escaped slaves, abolitionists spotlighted the conflict between state laws, which in turn fostered legal claims for the courts to resolve. Likewise, authorities in non-death penalty states have refused to hand over suspects to death penalty states unless that state assures the death penalty would not be sought.[3] Death penalty abolitionists may highlight discrepancies in state law to promote more litigation, and in turn, transform death penalty law.

 

Both slavery and the death penalty are expressly mentioned in the Constitution.[4] This provides comparable challenges to both abolitionist groups who attempt to use the courts to end the practices. The Supreme Court exhibited great hesitance to declare slavery unconstitutional as it played such a significant role in the Constitution. While abolitionists could spotlight slavery using the courts, the drastic constitutional changes they requested ultimately needed to come from the legislature. Justice Scalia once said, “It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”[5] This sentiment, made during a discussion about the death penalty, highlights the Court’s responsibility of applying the Constitution, not amending it. However, this is certainly not the view of every Justice currently on the Court. Justice Ginsburg has stated that if she had been on the Court for Furman v. Georgia, she “wouldn’t have given us the death penalty back four years later.”[6] Since a constitutional amendment was required for abolitionists to see the change they were seeking, a constitutional amendment may also be required for death penalty abolitionists to likewise see the change they are seeking.

A.    Unintended Consequences

The slavery and death penalty abolitionist movements have both resulted in unintended consequences. For example, a sharp increase in the death penalty against blacks followed the abolition of slavery.[7] After all, when slavery was legal, many people in power had a financial interest in not killing slave labor. Malkani and other death penalty abolitionists fear that abolishing the death penalty will likewise result in an unintended consequence, namely the increased use of, and entrenchment in, life without parole (LWOP). The concern is not just that LWOP is inhumane but that it offers less protections for the convicted—such as automatic appeals—when compared to the death penalty.

The fugitive slave saga and access to lethal injection drugs are additional unintended consequences that exemplify the parallels between slavery and death penalty abolitionist movements. In his analysis of unintended consequences, Malkani explains:

Just as antebellum abolitionists frustrated the intended outcome of Prigg v. Pennsylvania [8] by disassociating themselves from slavery and thus preventing slave owners and their agents from recapturing escaped slaves, so today’s abolitionists have frustrated the intended outcome of Baze v. Rees [9] by encouraging disassociation from capital punishment and thus preventing executions from proceeding.[10]

But the unintended consequences did not always work in the favor of the abolitionists as in the two previous examples. When fugitive slaves were harbored in free states, this had the unintended consequence of emboldening the pro-slavery lobby and, for a time, made matters worse.[11] Likewise, anti-death penalty actions aimed at reducing access to lethal injection drugs have caused some states to turn to alternative, untested drug protocols that increase the risk of a painful death.[12] Justice Alito even referred to the result of these abolitionist tactics as part of a “guerilla war”[13] where the abolitionists are to blame for these new, potentially painful executions. [14]

B.    Spokespeople for the Cause

Due to the nature of slavery and capital punishment, there are similar issues regarding effective spokespeople for each cause. First, the direct beneficiaries of death penalty and slavery abolition are in captivity and therefore have limited ability to participate in the movement. Second, even employing people who are no longer held captive, such as escaped slaves and death row exonerees can present common ethical issues because it can be harmful for them to relive the traumatic experience. Finally, activists disagree about what extent these free and exonerated people should be utilized for the cause. Some activists believe free and exonerated individuals should be limited to simply reciting facts, leaving the philosophical arguments to those who are more articulate.[15] Other activists have expressed concern that escaped slaves and death row exonerees may not be viewed sympathetically by those not already on board with the movement.[16] Ultimately, each movement faces the problem of finding persuasive spokespeople to advocate for their respective causes.  

Malkani describes how both slavery and death penalty proponents have attempted to legitimize the practices by implementing protections to create a “veneer of acceptability.”[17] For example, “slaves were to be counted as persons for the purposes of the Electoral College, and were indeed referred to as ‘persons’ throughout the text of the US Constitution.”[18] Likewise, proponents of the death penalty hide the “racialized system of degradation . . . by the occasional sentencing to death of a white person, or the sentencing to death of a person accused of killing a black person.”[19] According to Malkani, these safeguards are not implemented because the proponents care about the humanity of slaves or those who are executed.[20] Rather, they are implemented in a cunning attempt to legitimize a dehumanizing practice.[21]

C.    Proposed Alternatives

Both abolitionist movements have dealt with the issue of proposed alternatives. The colonization of Liberia was proposed as an alternative to slavery, while LWOP is a commonly proposed alternative to the death penalty. Malkani makes perfectly clear that in his personal opinion neither colonization nor LWOP were suitable alternatives because they are both rooted in the same philosophy of the initial problem: the subjugation and dehumanizing of certain individuals.[22] But not every abolitionist agrees. In 1990, the director of the ACLU National Capital Punishment Project stated that they would “acquiesce” to LWOP as an alternative to the death penalty.[23] Additionally, a former Death Penalty Information Center executive director said, “[LWOP is] a practical alternative to the death penalty that the public may be willing to accept. Having a stated alternative that sounds tough makes a big difference.”[24] Even though Malkani personally opposes LWOP as an alternative to the death penalty, he recognizes that “the availability of LWOP enables political leaders to further the anti-death penalty cause.”[25]

Likewise, many slavery abolitionists supported colonization as a way to “[meet] proponents of slavery and racial prejudice half way.”[26] The American Colonization Society dominated abolitionist discourse in the early 1800s.[27] Even “the Great Emancipator” Abraham Lincoln supported the colonization of blacks to the Caribbean and Central America.[28] In both slavery and death penalty movements, some abolitionists refuse to compromise out of principle, while others implement a more pragmatic, lesser-of-two-evils approach.

DIFFERENCES

The starkest difference between slavery and capital punishment is found in the level of culpability. Slaves were blameless in their circumstance. Executed inmates, however, are not. They are convicted of a capital offense by a unanimous, twelve-person jury based on the highest legal burden: beyond a reasonable doubt. These inmates then spend years exhausting all avenues of appeal. This level of culpability presents challenges for death penalty abolitionists as they attempt to draw sympathy for those on death row. While slavery abolitionists faced distinct challenges in gaining sympathy, they did not have to confront the extreme levels of culpability that death penalty abolitionists are attempting to confront today.

There is also a significant difference in the sheer scale of slavery in America when compared to the modern death penalty. In 1860, over twelve percent of the United States population was slaves.[29] In 2016, only 0.00000006% of the population was executed.[30] It is easy to see how the fewer people affected by an issue, the harder it is to gain advocates for that issue. The death penalty does not even make the list of the top forty-six most important problems in America.[31]

Many slavery abolitionists supported a more pragmatic-based “gradualism,” such as that promoted by the Pennsylvania Abolition Society. They proposed legislation that would only allow for the freedom of those born after March 1, 1780.[32] While death penalty abolitionists debate suitable alternatives to the death penalty, there is no real debate as to how quickly they want the death penalty abolished.

Criticism of Slavery and the Death Penalty: A Study in Abolition

A.    Dignity

Malkani compares slavery to the death penalty on dignity grounds. He admits that the Constitution makes no reference to the word “dignity” and that “the idea of dignity is jurisprudentially and philosophically fraught . . . .”[33] Nevertheless, Malkani discusses the issue of dignity at length. Given the amorphous nature of dignity, his entire section on this issue reads more like a subjective opinion on art than a factual comparison. It would have been just as enlightening for Malkani to state that he personally does not like either slavery or the death penalty and present this as another similarity.

The discussion on dignity lacks any significant recognition or analysis of potential criticism. For example, Malkani does not explore the relationship between dignity and the proportionality of punishment—a central counterargument to his position.  It could be argued that protecting a criminal from a proportionate punishment denies him his autonomy and therefore is undignified. Likewise, the dignity of murder victims whose attacker was not given a just punishment calls into question dignified treatments as well. Finally, the issue of dignity necessitates an assessment of proportionality of the punishment to the crime. Executing someone for a misdemeanor is clearly undignified; however, it is far less clear whether executing Timothy McVeigh is undignified. Malkani does not interact with notions of proportionality and other counterarguments and the result is an oversimplified and one-sided assessment of the issue.

Malkani’s unbalanced discussion on dignity attempts to equate the lack of dignity afforded to slaves to the lack of dignity afforded to inmates on death row. However, it appears the vast majority of slavery abolitionists did not agree with Malkani that the death penalty is equally undignified. In 1886, when slavery had been abolished for over 20 years, only one state, Wisconsin, did not have the death penalty. And this was the death penalty as practiced in the 1800s.[34] Our modern-day death penalty offers far more protections for the accused. Even the ACLU did not oppose the death penalty for its first forty-three years because it maintained it was not a civil rights issue.[35] Therefore, Malkani’s position that slavery and the death penalty are equally undignified was not shared by many slavery abolitionists.

Malkani’s claim that the death penalty and slavery are equally inhumane would lead to peculiar outcomes if consistently held. Suppose Malkani was given the choice between the inhumanity of executing a convicted murderer who exhausted all appeals or the inhumanity of imposing a lifetime of slavery on an innocent person. Would Malkani really be unable to differentiate between the two?

B.    Willie Horton

Malkani’s analysis of capital punishment as a deterrent mechanism is flawed because he bases his understanding on factually unsound narratives. The prime example is Malkani’s reading of the Willie Horton incident, which he describes in a highly misleading fashion.[36] Malkani states that “voters were told that [Massachusetts Governor Michael] Dukakis was to blame for the escape of a black prisoner named Willie Horton, who went on to rape and murder a white woman.”[37] Malkani then quotes author Michelle Alexander, who says the Willie Horton advertisement was “Bush’s most famous racial appeal.”[38]

Stating that “voters were told” that Dukakis was to blame for Horton’s release implies that Dukakis was not to blame. However, it was Dukakis who vetoed a bill that would exclude first-degree murderers from Massachusetts’s furlough program.[39] Dukakis claimed the bill would “cut the heart out of efforts at inmate rehabilitation.”[40] Therefore, in a very real sense, Dukakis—through his veto—is to blame for the release of Willie Horton.

Another inaccuracy from Malkani’s coverage of the Willie Horton incident is his claim that Horton “escape[d]” from prison. In reality, Horton was intentionally given an unsupervised weekend furlough from prison (although he did stay out longer than he was supposed to). Further, the famous 1988 Willie Horton campaign advertisement was not “Bush’s most famous racial appeal.” The ad was not even run by the Bush campaign—it was an independent expenditure by the National Security Political Action Committee.[41] Finally, in a comparatively minor inaccuracy, Willie Horton did not “[go] on to rape and murder . . . .” Rather, he tortured and raped a couple.[42] Neither were killed.[43]

This misrepresentation of the facts of the Willie Horton case—whether intentional or accidental—seems to inform Malkani’s understanding of capital punishment as a deterrence. He states that there is a “lack of any reliable empirical research that demonstrates that the death penalty deters potential offenders . . . .”[44] Although not explicitly addressed in the book, this statement evinces a sense of oversight regarding arbitrarily distinguishing between deterrence and incapacity—a common abolitionist tactic. Under this view, an executed murderer is not “deterred” from committing future crimes; rather, he is “incapacitated.” This allows the abolitionist to disregard how executed individuals can no longer commit crimes and instead focus solely on the uncertain deterrent effects the death penalty has on other potential criminals. It is unlikely that the couple Willie Horton raped and tortured would find this distinction to be a meaningful one.

C.    LWOP as Alternative

Throughout the book, Malkani rejects LWOP as a suitable alternative to the death penalty. While criticizing LWOP is easy, presenting a suitable alternative is far more difficult. This is likely why Malkani does much of the former and none of the latter. Additionally, as is common in this book, there is no interaction with potential criticism. For example, the logic employed by LWOP abolitionists, if consistently applied elsewhere, leads to major problems. If LWOP is so abhorrent, then other punishments that are the functional equivalent would also need to be abolished. For example, giving long sentences to older defendants would also need to be banned because such defendants would be likely to die in prison. Implementing legislation to account for life expectancy would pose many problems. Perhaps Malkani would support the implementation of a scale where judges cannot sentence defendants to more than, say, 80% of their remaining average life expectancy. Due to discrepancies in life expectancies this would result in a number of issues, such as a sixty-year-old African-American male receiving far less punishment than a sixty-year-old white female for committing the same crime.[45] Also, people who have already exceeded their average life expectancies would be immune from imprisonment. For these reasons, perhaps Malkani’s decision to not address LWOP alternatives was an intentional, strategic one.

D.   Miscellaneous

Malkani claims the Gallup death penalty poll shows “41% of Americans expressly oppose capital punishment.”[46] He uses this deceptive premise to argue that 41% of Americans expressly oppose capital punishment. This is misleading because this poll asks, “Are you in favor of the death penalty for a person convicted of murder?”[47] This phrasing implies that an affirmative answer supports the death penalty for every convicted murderer, including those convicted of third-degree murder. This is the equivalent of asking, “Are you in favor of thirty-year prison sentences for a person convicted of larceny?” And, if ninety percent of people respond, “No,” claiming that ninety percent of Americans expressly oppose thirty-year sentences as an option for larceny.

The book avoids discussing the comparative role religion has played in both abolitionist movements.[48] This is unfortunate, as religious beliefs have played a significant role on both sides of the slavery and death penalty debate.[49] And as with the Constitution, slavery and the death penalty are both explicitly mentioned in the Bible.[50] Further, Malkani fails to discuss the significant role new communications technologies have played in the death penalty abolition movement—namely, the impacts increased accessibility to mass-produced books had on slavery and the impacts social media has had on the death penalty.

Malkani appears to make the common, popular-level mistake of conflating innocence with wrongful conviction. The following quote from the book illustrates this error: “[The conference] propelled the issue of innocence towards the forefront of anti-death penalty discourses. At the time of the conference, seventy-four people had been exonerated from death rows across America.”[51]  This statement implies that each person exonerated was innocent, which is not necessarily the case. With the discussion of innocence, it is interesting to note that the author never attempts to provide a single example of an innocent person executed.

Malkani promotes the notion that the death penalty “diminishes us by damaging our democracy, legitimating vengeance, intensifying racial divisions, and distracting us from the challenges [that America faces].”[52] But he provides no evidence to support this claim. After all, if this claim is correct, America would have been more democratic, less vengeful, and less racist in the 1970s (during the death-penalty moratorium) than in the 1990s (when the death penalty sharply increased). Malkani provides no evidence that this is the case.

E.    Significance of Similarities

As addressed in this article, there are some interesting similarities between the two abolitionist movements, but for the most part this is more a function of how they are both abolitionist movements and nothing more. Therefore, most of the similarities are fairly mundane, given that abolitionist movements by their very nature are expected to have much in common.

To illustrate the lack of uniqueness in similarities between slavery and death penalty abolitionist movements, one might compare another abolitionist movement, the pro-life movement. As an abolitionist movement, it too has many similarities to the anti-slavery movement. They both bring up issues of race, strategic issues such as gradualism, the use of violence, state’s rights, philosophical issues of personhood, and the level of culpability of those who maintain neutrality. Additionally, Malkani’s use of the phrase “machinery of death”[53] to cast the death penalty in a negative light is evocative of the pro-life movement’s use of “culture of death” to refer to a society that allows abortion.

For the most part, Malkani does not use the similarities he mentions to lead up to a more profound insight, such as what the anti-death penalty movement can learn from the slavery abolition movement or why he believes the anti-death penalty movement will prevail in the end.

Furthermore, slavery is commonly recognized as America’s most evil act and therefore is frequently utilized as a catch-all comparison to any modern action that someone wants to cast in a negative light. Animal rights activists, those attempting to repeal the Affordable Care Act, proponents of lower taxes, and gun control advocates have all compared their efforts to those of slavery abolitionists (and their opponents to pro-slavery activists). It is unclear how effective these modern-day comparisons to slavery are. Reducing slavery analogies to essentially “things I also don’t like” runs the risk of alienating those on the other side of the issue who the activist should be trying to persuade—to say nothing of diminishing the experience of those who suffered through literal slavery.

Malkani’s selective use of comparisons and refusal to address counterarguments suggests that the primary purpose of comparing the death penalty to slavery is to simply make the death penalty look bad and therefore promote the anti-death penalty agenda. The tactic of comparing a controversial current issue with a settled issue from the past is certainly permissible and can be effective, but when masked as a comparative-historical analysis, it comes across as disingenuous.

CONCLUSION

Malkani’s book provides a unique analysis of the similarities between the slavery abolitionist movement and the death penalty-abolitionist movement. Discussing these issues from the perspective of abolition, as opposed to the establishment and perpetuation of slavery and the death penalty, allows the reader to explore these often discussed issues from a new perspective. Malkani aptly demonstrates the similarities between the movements, especially when it comes to analyzing the unintended consequences caused by both movements; however, the book is not without its flaws. When moving beyond the historical similarities between the movements, Malkani relies on false equivalences to compare slavery and the death penalty and too often fails to address potential criticisms of his position. The book also contains some unfortunate factual misrepresentations. Despite these flaws, the book is an interesting and unique addition to the slavery–death penalty conversation.

[1] Bharat Malkani, Slavery and the Death Penalty: A Study in Abolition (Routledge ed.) (2018).

[2] Id. at 186–202.

[3] Id. at 186.

[4] See e.g., U.S. Const. art. I, §2; U.S. Const. amend. V.

[5] Glossip v. Gross, 135 S. Ct. 2726, 2747 (2015) (Scalia, J., concurring).

[6] Death Penalty Information Center, Statements on the Death Penalty by Supreme Court Justices, https://deathpenaltyinfo.org/statements-death-penalty-supreme-court-justices (last visited May 4, 2019).

[7] Malkani, supra note 2, at 32.

[8] 41 U.S. 539 (1842) (overturning the conviction of a slavecatcher by holding that the federal Fugitive Slave Act prevented a Pennsylvania state law that prohibited the removal of blacks from the free state of Pennsylvania into slavery).

[9] 553 U.S. 35 (2008) (holding that the standard three-drug cocktail for lethal injection did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment).

[10] Malkani, supra note 2, at 201.

[11] Id. at 202.

[12] In 2016, Oklahoma amended its state constitution to make executions immune from legal challenges in state court. Id. at 202–03; In 2014 Tennessee introduced a law that mandated the use of the electric chair if lethal injection drugs were unavailable. Id. at 203; In 2015 Utah enacted a similar law that would allow the use of a firing squad if lethal injection drugs were unavailable. Id. Drug shortages have also resulted in states passing “secrecy” statutes to conceal the source of lethal injection drugs.

[13] Transcript of Oral Argument at 14, Glossip v. Gross, 135 S. Ct. 2726 (No. 14-7955).

[14] Id.

[15] Malkani, supra note 2, at 148–49.

[16] Id.

[17] Id. at 94.

[18] Id.

[19] Id. at 95.

[20] Id. at 94.

[21] Id. at 94–95.

[22] Id. at 162–69.

[23] Id. at 166.

[24] Id. at 169.

[25] Id. at 166–67.

[26] Id. at 165.

[27] Id. at 164.

[28] Id.

[29] Id. at 9.

[30] Twenty executions for 325 million population.

[31] Most Important Problem, Gallup Poll, https://news.gallup.com/poll/1675/most-important-problem.aspx (last visited April 27, 2019).

[32] Malkani, supra note 2, at 80.

[33] Id. at 84. However, in Malkani’s defense, Supreme Court Justices have, at times, used dignity grounds in capital punishment decisions. Bharat Malkani, Dignity and the Death Penalty in the United States Supreme Court, Bharat Malkani 44 Hastings Const. L.Q. 145, 147 (2017).

[34] Ron T. Stansfield, The Abolition of Capital Punishment in the United States: 1846-2012, YouTube (Oct. 22, 2012), https://www.youtube.com/watch?v=35w-QunAxEs.  

[35] Malkani, supra note 2, at 43.

[36] While serving LWOP, Willie Horton was given a weekend furlough where he committed assault, armed robbery and rape. His furlough became the subject of great controversy during Michael Dukakis’s 1988 presidential campaign.

[37] Malkani, supra note 2, at 66.

[38] Id.

[39] Ross Douthat, Prisons of Our Own Making, N.Y. Times (Dec. 13, 2009), https://www.nytimes.com/2009/12/14/opinion/14douthat.html.

[40] Id.

[41] Charles R. Babcock, FEC Split over Horton Ad Investigation, Wash. Post (Jan. 16, 1992), https://www.washingtonpost.com/archive/politics/1992/01/16/fec-split-over-horton-ad-investigation/9f3da950-bb98-4339-91fd-4080e365837a.

[42] Peter Baker, Bush Made Willie Horton an Issue in 1988, and the Racial Scars are Still Fresh, NY Times (Dec. 3, 2018) https://www.nytimes.com/2018/12/03/us/politics/bush-willie-horton.html.

[43] Id.

[44] Malkani, supra note 2, at 127.

[45] This would be due to the drastic differences in average life expectancy.

[46] Malkani, supra note 2, at 6.

[47] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx (last visited Dec. 26, 2018).

[48] Malkani does acknowledge the significance religion played in slavery abolition but explains ignoring the topic by saying, “Religion might motivate people to oppose slavery or the death penalty, and it might drive people to the radical position, but it does not in and of itself tell us much about the nature or normativity of radical abolitionism.” Malkani, supra note 2, at 15.

[49] J. Albert Harrill, The Use of the New Testament in the American Slave Controversy: A Case History in the Hermeneutical Tension Between Biblical Criticism and Christian Moral Debate, 10 Religion & American Culture 149 (2018); Harold G. Grasmick et al., Religion, Punitive Justice, and Support for the Death Penalty, 10 Justice Quarterly 289 (1993).

[50] See e.g., Genesis 9:6; Ephesians 6:5.

[51] Malkani, supra note 2, at 142.

[52] Id. at 99.

[53] Id. at 194.