Want to Abolish the Death Penalty? Start by Abolishing the Police

On June 16, 1944, the State of South Carolina executed George Stinney, a fourteen-year-old black boy who was convicted of murder by an all-white jury, following a sham trial.  Seventy years later, the State of Ohio executed Tamir Rice, a twelve-year-old black boy after no trial.  Twenty-four days after a white police officer executed Tamir, George was finally exonerated.  And so George and Tamir, although executed by different states, in different times, and in different ways, are bound together by their striking commonalities: they were both young, black boys who were executed by the State after doing no wrong.  George was executed via the post-trial mechanism, and Tamir was executed via the no-trial mechanism.

According to the Death Penalty Information Center, only 31 US states and the federal government have the death penalty on the books, with 19 states having done away with the practice.  In actuality, all 50 states administer the death penalty, and all but three states have executed at least one person thus far this year.

As of September 6th, 16 people have been executed via the post-trial execution mechanism, while at least 694 people have been executed via the no-trial execution mechanism—that is, via police execution.  It is important to highlight that this figure does not include those who have been killed by police using tasers, personal force, or another method.  Abolishing the death penalty, which is in essence a state-sanctioned execution, means looking beyond the kinds of executions that take place after “due process of law,” and beyond where legislative abolition, judicial abolition, or executive moratoria are likely to take us; in order to abolish the death penalty in any meaningful way, we must abolish the police.

At the outset, we should ask ourselves whether police themselves are constitutional, and look for guidance on what police abolition means from black activists, such as Derecka Purnell.  As another preliminary matter, we should also ask ourselves whether the death penalty in any form is conscionable.  Next, we should consider that there is little functional difference between when the police—state actors—kill people without due process, and when execution teams—also state actors—kill people with due process.  Both are forms of punishment administered by the state, and both are equally deadly, a point rendered painfully palpable by the executions of George and Tamir. From a constitutional perspective, the two should be indistinguishable.  When police kill, they administer the death penalty in a way that is always unconstitutional; however, different police killings are often times unconstitutional in different ways.

Some criminologists have noted the connection between the no-trial execution and the post-trial execution.  Lawrence Sherman, a renowned criminologist, noted in a 1980 Vanderbilt Law Review article, entitled “Execution Without Trial: Police Homicides and the Constitution,” that “[m]easured against well-established Supreme Court standards, police homicide clearly constitutes punishment.”  In his 2017 book When Police Kill, Franklin Zimring, another criminologist of at least equal renown, considered no-trial executions and post-trial executions in relation to one another “because these are the two most prominent types of deliberate killings by agencies of government in the United States.”  No-trial executions and post-trial executions are not only related to one another, they should be viewed as constitutionally indistinguishable: both are forms of punishment that require of a person the forfeiture of life. The main difference is that one happens with “due process of law” and the other does not.

The Fourteenth Amendment to the US Constitution requires that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law….”  When police execute a person, the State, through the police, deprives that person of life without due process of law (which, in the criminal law context, usually includes notice, a fair trial by jury, and the right to an attorney, among other things); on its face, this contravenes the strictures of the Fourteenth Amendment.  

Fundamentally, this is a question of what counts as due process of law.  Does ordering a person out of a car before summarily executing them, as was the case when a white East Pittsburgh police officer killed Antwon Rose II, a seventeen-year-old black boy, constitute due process?  The answer here is certainly no—Antwon was, in fact, afforded no procedural protections whatsoever before he was executed.  The next question is whether a police officer can ever administer a no-trial execution while comporting with due process standards, as outlined above in brief.  The answer here is, once again, surely no. That is to say that any time a police officer kills a person, they violate the Fourteenth Amendment’s prohibition on such deprivation of life.

Few observers seem to be discussing the ubiquitous no-trial execution as “the death penalty on the streets,” which is how constitutional scholar Jelani Jefferson Exum accurately described them in a 2015 Missouri Law Review article.  Although Exum’s article draws the connection between the post-trial death penalty and the no-trial death penalty, the article does not contemplate a death penalty-free future.  But even fewer observers are discussing, as Exum has, the Eighth Amendment in the context of no-trial executions. Whenever the police kill, it is unconstitutional according to the Fourteenth Amendment, as discussed above.  But what does the Eighth Amendment, which prohibits “cruel and unusual punishment,” have to say on the subject of no-trial executions?

The Supreme Court has interpreted the Eighth Amendment’s prohibition on cruel and unusual punishment to bar the imposition of the death penalty on certain classes of people, and has interpreted the same Amendment to bar the imposition of the death penalty where certain offenses were committed.  Perhaps the reason that few commentators have evaluated the no-trial execution in the Eighth Amendment context is because the Supreme Court does not consider no-trial executions to exist in the same category as post-trial executions. In the 1989 case Graham v. Connor, the Court indicated that the “Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”  Thus, the no-trial execution is not viewed by the Supreme Court as a punishment subject to the restrictions of the Eighth Amendment.  However, we need not dig into the technical minutia of Supreme Court precedent here; instead we shall apply such precedent vis-à-vis the Eighth Amendment to the no-trial execution.

Since Sherman published his article in 1980, police killings have, in a sense, grown more unconstitutional.  By 1980, such executions constituted a deprivation of life without due process of law, in violation of the plain text of the Fourteenth Amendment.  Since that time, the Supreme Court has carved out important categorical exceptions to the death penalty, pursuant to the Eighth Amendment, holding that the death penalty is not an appropriate punishment for certain categories of people and certain categories of offenses.  What follows is a brief summary of some important cases establishing such exceptions.

First, the categorical exceptions to the death penalty based on the personal characteristics of the accused.  In the 1986 case Ford v. Wainwright, the Supreme Court held that the Eighth Amendment prohibited the State from administering the death penalty to people with severe mental illnesses.  The Supreme Court held in the 2002 case Atkins v. Virginia that executing a person with an intellectual disability violates the Eighth Amendment.  Three years later, in the 2005 case Roper v. Simmons, the Court ruled that states could not execute a person who committed a death penalty-eligible offense before turning 18.

Next, the categorical exceptions based on offense.  In 1977, the Supreme Court held in the case Coker v. Georgia that the Eighth Amendment forbids the imposition of the death penalty for the rape of an adult woman.  Five years later, in the 1982 case Enmund v. Florida, the Court held that the death penalty could not be imposed where a homicide took place during the commission of a felony and the accused did not kill, attempt to kill, or intend to kill.  In 2008, the Court held in Kennedy v. Louisiana that the Eighth Amendment prohibits the imposition of the death penalty for any offense against an individual other than murder, including the rape of a child.

With the benefit of the above mentioned Supreme Court precedent, it becomes clear that police officers routinely violate the Eighth Amendment, in addition to violating the Fourteenth Amendment.  For instance, when the police kill a person under the age of 18, they violate the Eighth Amendment because the Supreme Court has held that the death penalty cannot be imposed on minors. When South Carolina executed George Stinney, in 1944, the Court had yet to hold that minors could not be executed as a matter of law; however, by the time Ohio executed Tamir Rice, Simmons had been the law of the land for almost a decade.

Likewise, when the police execute a person with an intellectual disability, they violate the Eighth Amendment, and the same is true when the police execute someone with a severe mental illness.  Similarly, when the police execute a person who has not committed a death penalty-eligible offense (that is, homicide), they also violate the Eighth Amendment.

With these arguments in mind, plaintiffs in civil rights lawsuits against police officers who have killed someone could plausibly add claims sounding in the Eighth and Fourteenth Amendments to complaints.  This would entail propounding either an Eighth Amendment claim under one of the above enumerated cases, such as Atkins, and/or a Fourteenth Amendment claim asserting that the deprivation of life came without the requisite due process of law, probably through the vehicle of Section 1983.  This is to say nothing of the likelihood of succeeding on these claims but, rather, is meant to encourage a reframing of the issue of no-trial executions, couching them in terms that are, perhaps, more commonsensical and compelling.

What is clear is that the death penalty is not only administered to death penalty-eligible individuals convicted of death penalty-eligible offenses: it is also administered to children, those with intellectual disabilities, those with severe mental health conditions, and those who have not committed a death-penalty eligible offense.  In each of these genres of exclusion, execution is not a penalty that states are authorized to mete out according to the Supreme Court, and yet, we have seen time and again that states do just that.

In 2018, the death penalty in any form should be considered unconscionable, regardless of the characteristics of those the government wishes to execute, and regardless of whether those the government wishes to execute were afforded due process protections.  If the unconscionability of no-trial executions is not enough, they are also unconstitutional according to current Supreme Court precedent with regard to the death penalty.

Even if one does not want to abolish the death penalty per se, the rule of law requires that states put an end to no-trial executions.  Consider this: how meaningful is Supreme Court precedent instituting categorical restrictions on the death penalty if states are free to execute people who fall into those categories anyway?  Put another way, what does Supreme Court precedent mean for people who fall into such categories and are nonetheless subject to no-trial executions?

Some people who accept the argument that no-trial executions should be constitutionally indistinguishable from post-trial executions will undoubtedly wonder why that necessitates the abolition of police—can’t we just reform the no-trial executions away?  The simple answer is in theory, yes but, in practice, almost certainly no. This is because radical change rarely comes about as the result of incremental reform. Previously introduced, woefully insufficient reforms also have a way of being reintroduced by police departments, as was the case with the NYPD’s use of “verbal judo,” as the political scientist Naomi Murakawa explained in a 2017 essay.  Years earlier, in a 1985 essay, criminologist Gregory H. Williams noted that “[a]s a general proposition, efforts to control the use of deadly force [by police] have not fared too well over time.”  This is a euphemistic way of saying that reform has not worked in the context of the no-trial execution. As long as the State, through the police, can administer no-trial executions, the people the Supreme Court has meant to protect from executions remain vulnerable.  In the final analysis, there is nothing in the history of policing in America that tells us that the police are amenable to meaningful reformation. Rachel Herzing, a black community organizer, has trenchantly described why any argument to the contrary suffers ineluctably from fundamental flaws.

In 2018, we can expect the State to execute more than 1,000 people within US borders, and the overwhelming majority of these people will be executed by police officers with no trial, no conviction, and no other procedural protection.  So long as the police are authorized to administer no-trial executions, people like Antwon Rose II remain vulnerable. This continued vulnerability was predicted by the execution of Tamir Rice, and the execution of George Stinney before him.  In order to abolish the death penalty in any meaningful way, we must first abolish the police. Up with the Simmons claims.  Down with the police.

Mike Banerjee

Michael Banerjee is a 3L. He is the editor-in-chief of the Harvard Journal on Racial and Ethnic Justice.

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