The Legacy of Slavery in the Modern Death Penalty

There has been a glut of films in the last couple of years that deal with the issue of slavery as it was practiced in the United States of America before it was abolished in 1865. Django Unchained, Lincoln, and the forthcoming 12 Years A Slave all highlight and tackle various aspects of slavery, such as its brutality and its inherent racism.


The latter two films are generally classified as historical dramas. In The Guardian, for example, David Cox describes 12 Years a Slave as “a reminder that big-screen depictions of the wrongs once perpetrated on black people are in good supply these days”, and Catherine Shoard writes: “It’s bleak, barbaric and brutally unsparing about the part played by almost every white person in perpetuating injustice in 1840s America.


The inherent racism that underpinned slavery, though, is not confined to the 1800s, and Cox is mistaken when he writes that wrongs were “once perpetrated on black people.” The legacy of slavery is alive in the United States today, particularly rearing its head in the criminal justice system. Black people are more likely to be prosecuted for drug offences than their white counterparts, and research has consistently shown that your chances of being sentenced to death increase dramatically if you kill a white person rather than kill a black person. Studies have shown that a person is 97% more likely to face the death penalty if their victim is white, than if their victim is black. The implication is clear: the lives of black people are less important than the lives of white people, just as black people were considered unworthy of freedom in the 1800s. And when we recall that, in Virginia for example, black slaves could be executed for 66 offences while free white people could only be executed for one offence, the mark of slavery in the way that the death penalty is administered cannot be ignored. Racism has also led to the wrongful conviction of the innocent. Clarence Bradley, who spent 9 years on death row for a crime that he didn’t commit, is testament to this.


The traces of slavery in the contemporary death penalty do not stop with the racial disparities in the application of the death penalty. The very concept of executing a person cannot be divorced from the practice of lynchings that took place after the abolition of slavery and well into the twentieth century. Also, the death penalty is predominantly practiced in the Southern states of the US while the rest of America and the rest of the world are turning their backs on capital punishment. Likewise, slavery was described as a “peculiar institution” because it was peculiar to the Southern states of the USA.


Perhaps counter-intuitively, though, the links between slavery and the modern death penalty offer hope for death penalty abolitionists. The movement to abolish slavery eventually succeeded, and at the University of Birmingham we are researching what today’s death penalty abolitionists can learn from the strategies and tactics that their anti-slavery counterparts adopted and ensure that the death penalty goes the same way as slavery: towards abolition for good.


Dr Bharat Malkani, Birmingham Law School, University of Birmingham, UK.