Workers Vanguard No. 952
12 February 2010
Capital Punishment and the Capitalist State
Abolish the Racist Death Penalty!
In 1976, the American Law Institute provided the U.S. Supreme Court with the “intellectual framework” to restart the state’s machinery of death—which had been idled since 1967 and officially put on hold by a 1972 Supreme Court decision. Over three decades later, in the fall of 2009, the Institute, in the words of the New York Times (2 January), “pronounced its project a failure and walked away from it.” This “project,” as it is so benignly called, provided judges, prosecutors and law professors with a “learned” rationale for the state-sanctioned murder of close to 1,200 people and for the continued incarceration in death row dungeons of more than 3,000 others, the majority of them black and Latino.
A study by the Institute discovered, as if it were news, that “capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.”
Racial disparities? Raw racism has been at the core of the death penalty in the U.S. since the days of slavery. In 1986, a suit was brought before the Supreme Court by black Georgia death row prisoner Warren McCleskey. Drawing on an authoritative statistical study by law professor David Baldus, McCleskey’s lawyers provided raw figures showing, among other evidence of racial disparities, that black people in Georgia convicted of killing whites were sentenced to death 22 times more frequently than those convicted of killing blacks. In rejecting McCleskey’s appeal in 1987, the Supreme Court openly acknowledged that to accept his premise would throw “into serious question the principles that underlie our entire criminal justice system.”
Incompetent, underpaid defense attorneys? Nothing new here. A study of death penalty cases in Texas, the kill-capital of the U.S., showed that one-quarter of those sentenced to death were represented by attorneys who had at some time been “reprimanded, placed on probation, suspended or banned from practicing law by the State Bar.” Innocence? That was ruled out by the Supreme Court’s 1993 Herrera decision, which held that executing an innocent man was not unconstitutional.
The decision of the American Law Institute to “walk away from”—but not oppose—the death penalty reflects increasing exposure of blatant frame-ups of the innocent and the barbarism of the state’s executioners. Since the death penalty was reinstated in 1976, more than 130 of those sentenced to die at the hands of the state have been exonerated, over one-third of them in the past ten years. In 2000, after 13 Illinois death row prisoners were found to have been falsely convicted, Republican governor George Ryan first called a moratorium on executions and then commuted the death sentences of Illinois’ death row inmates. (Having faced blowback for this decent act, Ryan was sentenced in 2006 to six-and-a-half years in prison on mail and tax fraud and other charges.) Public exposure of grisly torture in death chambers—California executioners digging into the arms of Stanley Tookie Williams to find a vein for lethal injection or Florida death row inmate Angel Nieves Diaz writhing in agony as he was shot up with two doses of poisonous chemicals before dying—led to further temporary moratoriums in other states. The purpose was to allow the capitalist state time to find a more “humane” means of killing.
As Marxists, we oppose the death penalty on principle—for the guilty as well as the innocent. We do not accord the state the right to determine who lives and who dies. We welcome any measure against the death penalty or that curtails the reach of the state’s killing machine. But we also understand that this will not fundamentally change the violently racist and oppressive nature of capitalist class rule. It won’t change the reality of cops in the inner cities gunning down black and Latino youth who have been written off as permanent “outlaws” by the rulers of this society. Nor will it alter the slower death of the growing ranks of poor and unemployed from homelessness, disease and poverty. We seek to arm the working class with the understanding that it will take nothing short of a proletarian socialist revolution to sweep away the barbaric institutions of the capitalist state, which—with the cops, courts, prisons and military at its core—is nothing other than an apparatus of organized violence for the repression of workers and the oppressed in defense of the power and profits of the capitalist rulers.
Down With Capitalist Repression!
The decline of death sentences and executions at the state level has not done anything to lessen the commitment of the executive power of U.S. imperialism, now headed by Barack Obama, to the death penalty. In fact, the number of federal prisoners on death row continues to grow. Against complaints of trying Khalid Shaikh Mohammed, the purported mastermind of the September 11 attacks on the World Trade Center and Pentagon, in New York City, Obama declared: “I don’t think it would be offensive at all when he’s convicted and when the death penalty is applied to him” (Daily News, 18 November 2009).
Nor has the Supreme Court been the least bit deterred from pushing to execute the innocent. On January 19, the court vacated a 2001 decision by federal district court judge William Yohn that overturned the death sentence against Mumia Abu-Jamal and virtually wrote the script for its reinstatement by the Third Circuit Court of Appeals. Mumia is an innocent man who was framed up and falsely convicted for the 1981 killing of a Philadelphia cop. The capitalist rulers want to kill or entomb Mumia for life because they see in this eloquent journalist, MOVE supporter and former Black Panther Party spokesman the spectre of black revolt, of defiant opposition to their system of racist capitalist injustice. Free Mumia now!
Every court before which Mumia’s case has been brought has rejected the mountains of evidence of his innocence and the equally voluminous evidence that the cops, prosecution and judges conspired in framing him up. The reformists and liberals who for years have looked to these same courts for “justice” now turn to the Obama administration and Attorney General Eric Holder. Socialist Action leader Jeff Mackler put it baldly: “Today, having exhausted most all legal remedies, Mumia’s supporters are engaged in an important campaign to demand a Justice Department civil rights investigation into charges presented by his supporters that demonstrate illegal collusion between Pennsylvania prosecutors and the judiciary (Socialist Action, November 2009).
This hat-in-hand appeal to America’s top cop and the Commander-in-Chief of U.S. imperialism is a savage indictment of the reformists’ belief in the “democracy” of the capitalist state. Obama’s open support for the death penalty won him the backing of right-wing radio broadcaster Michael Smerconish, who has stood at the head of the crusade for Mumia’s death. Obama’s election was aimed at giving a face-lift to U.S. imperialism, and the message to black people is to shut up and eat it because the coming to power of America’s first black president shows that there is equality for those who “earn it.”
The Death Penalty in America: The Lynch Rope Made Legal
Opponents of the death penalty often point to the fact that nearly every other advanced industrialized country has abolished capital punishment. Outside of Japan, no other major capitalist power has the death penalty as part of its criminal code. But that doesn’t stop these countries’ rulers from deploying other means of brutal repression and death at the hands of their cops and other state forces.
Historically, capital punishment is a barbaric relic of ancient religious codes of retributive justice. But its endurance in the U.S. is rooted in the origins of American capitalism, which was built on the backs of black slaves. Under the Slave Codes, slaves were killed with impunity for “crimes” ranging from insolence toward whites to rebellion against the slave masters. It took a bloody Civil War to smash slavery. Only after that revolutionary victory were the freed black slaves recognized as persons, with full rights as citizens. In the ensuing period of Radical Reconstruction, the most democratic period in American history, more blacks per capita held political office than at any other time. But the promise of freedom for which 200,000 black troops fought so courageously was betrayed by the Northern capitalists.
All remaining Union troops were withdrawn from the South by 1877, and shortly thereafter a rigid system of legal segregation called Jim Crow was imposed and maintained by Klan terror and police-state repression. At the heart of the Jim Crow system was the lynch mob, whose purpose was to enforce the subjugation of black people through terror and murder. Although the number of those so hideously put to death will never be known, the Tuskegee Institute estimates that nearly 5,000 lynchings took place between 1882 and 1968. By the 1930s, extralegal lynchings were increasingly supplanted by legal lynching. From 1930 to 1967, more than two-thirds of those executed were black.
In an article titled “Black Man’s Burden: Race and the Death Penalty in America” (Oregon Law Review, Spring 2002), Charles Ogletree rightly argued that “the racially disproportionate application of the death penalty can be seen as being in historical continuity with the long and sordid history of lynching in this country.” Pointing to the fact that the Southern states that account for more than 90 percent of all executions today significantly overlap with those with the greatest number of lynchings and other extralegal terror during the Jim Crow period, he concluded: “Given the many similarities between the illegal but often officially sanctioned practice of lynching, and the current imposition of the death penalty, it seems at times that the only difference between lynching and capital punishment is the gloss of legality and procedural regularity that the latter enjoys.”
In 1967 executions were put on hold; five years later the Supreme Court ruled that the death penalty was “wanton and freakish” and ordered states to rewrite their laws. This ruling came in the context of the tumultuous civil rights struggles, growing mass protests against U.S. imperialism’s dirty and losing war against the Vietnamese workers and peasants and, in 1970, a mounting strike wave. On the world stage, the images of black protesters demanding basic equality being viciously attacked by racist cops and mobs were an embarrassment to U.S. imperialism and its posturing as the champion of “democracy” in the Cold War, particularly in competition with the Soviet Union in the Third World. In this context, America’s rulers judged that it was time to refurbish their much-tarnished “land of liberty” credentials.
But this was a brief and unusual moment in U.S. history, a period when the capitalist rulers were trying to contain, co-opt and eventually destroy the mass civil rights movement and the burgeoning radicalization centered on the Vietnam War. And they succeeded. After the 1973 U.S. withdrawal from Vietnam, the antiwar movement disappeared. The civil rights movement, whose leaders banked on the courts and the Democratic Party for redress, was broken when it confronted the vicious segregation of blacks in Northern ghettos, which was based not on Jim Crow law but on the reality of American capitalism. Most of the more radical black militants who opposed the policies of the civil rights leaders were either cut down by the FBI’s COINTELPRO operation or co-opted into the Democratic Party.
By 1976, when the death penalty was reinstated, the winds of reaction against 1960s liberalism and particularly black rights were blowing hot. Busing for school integration was defeated through a combination of racist mobs in the streets and liberals in Congress. The nomination of “born again” Baptist Jimmy Carter to head the Democratic Party ticket in the 1976 elections was not accidental—Carter openly proclaimed the virtues of “ethnic purity.” A year later, the ten-year moratorium on the death penalty ended with the execution of Gary Gilmore. The racist “war on crime,” which was kicked off in the 1970s by Republican Richard Nixon, was augmented in the 1980s by the “war on drugs” under Ronald Reagan, with the support of leading black Democratic spokesmen such as Jesse Jackson and Al Sharpton. This racist war led to a massive increase in black incarceration, with the U.S. now housing 2.3 million prisoners, the largest prison population in the world. One of every three black males born today can expect time in jail.
At the same time, as industry was being decimated in the late 1970s and ’80s, the prison population grew by a million—one place for every job lost on the assembly line. The lives of the majority of the black population, which once supplied a “reserve army of labor” for American capitalism, were now deemed by the rulers to be irrelevant to production for profit, while social programs seen as benefiting the ghetto and barrio poor were slashed, culminating in Democratic Party president Bill Clinton ending “welfare as we know it” in 1996.
That same year, Bill Clinton gave a major boost to the death penalty. His Antiterrorism and Effective Death Penalty Act gutted the habeas corpus right of state prisoners to have federal courts review their convictions and vastly expanded the federal death penalty, giving a green light to the execution machinery to go full speed ahead. And, indeed, the assembly line of death was kicked into high gear, reaching a high of 98 executions in 1999.
Written in this history, in the negative, is the fundamental truth of Karl Marx’s statement at the time of the Civil War: “Labor cannot emancipate itself in the white skin where in the black it is branded.” Fomenting racial and ethnic hatreds has long served America’s capitalist rulers in ratcheting up the exploitation of the working class as a whole, keeping the workers divided and obscuring the fundamental class nature of the capitalist system of exploitation. Writing off the lives of the ghetto poor as worthless is aimed at exalting those who will work at any wages and under any conditions. The results can be seen in the trail of broken unions, the slashing of wages, the increasing speedup and the general deterioration of living conditions for most working people. In all this, the rulers have been ably assisted by the pro-capitalist trade-union bureaucrats, whose policies of class peace and promotion of the capitalist Democratic Party as a “friend of labor” have sapped the fighting strength of the unions.
The death penalty stands at the pinnacle of the American capitalist state’s arsenal of repression. While the face of death row may now be mainly black and Latino, fighters for labor’s cause have also been targeted for death by the capitalist state: the Haymarket anarchists, abolitionists and labor organizers who fought for the eight-hour day, in 1877; IWW organizer Joe Hill in 1915; anarchist workers Sacco and Vanzetti in 1927. This does not include the hundreds of working-class fighters who have died at the hands of the strikebreaking cops and scabs. But it was out of such struggles that the industrial unions in this country were forged in the 1930s, bringing into their ranks as militant fighters masses of black workers. Breaking the chains forged by the trade-union misleaders that have shackled the working class to the class enemy means fighting to build a new class-struggle leadership. It will be out of hard-fought class battles that the vital instrument for getting rid of this decaying system of exploitation, racial oppression and death will be forged—a multiracial workers party to lead the fight for a socialist America. Such a party must be rooted in the understanding that the fight for black freedom is central to the struggle for the emancipation of the proletariat.
Abolish the Death Penalty Everywhere!
More than 150 years ago, Karl Marx attacked the London Times for upholding capital punishment as a necessary defense of “civilization”:
“It would be very difficult, if not altogether impossible, to establish any principle upon which the justice or expediency of capital punishment could be founded, in a society glorying in its civilization. Punishment in general has been defended as a means either of ameliorating or of intimidating. Now what right have you to punish me for the amelioration or intimidation of others?... Now, what a state of society is that, which knows of no better instrument for its own defense than the hangman, and which proclaims through the ‘leading journal of the world’ its own brutality as eternal law?”
—“Capital Punishment” (January 1853)
When capital punishment was reintroduced in the U.S., amid an anti-crime hysteria, we noted in “Abolish the Death Penalty” (WV No. 117, 9 July 1976): “The Marxist attitude toward crime and punishment is that we are against it
. Socialists do not proceed from the standpoint of punishing the offenders. Such a vindictive penal attitude is fundamentally a religious rather than a materialist conception of social relations.” Marxists fight for the creation of an international socialist society based on material abundance. Only then will the material conditions exist for the eradication of crime—which is born of deprivation and otherwise is a small-time reflection of the theft and terror on which capitalism is based—and for eradication of the need for a repressive state apparatus. Such a society cannot come into being without the victory of socialist revolutions internationally, especially in the advanced capitalist countries.
Today, the Chinese bureaucratically deformed workers state leads the world in executions. This is one of the hideous expressions of Stalinist rule—not only in China but also in North Korea, Vietnam and Cuba—which is based on the reactionary utopia of building “socialism in one country”—i.e., opposition to the struggle for international socialist revolution. A brittle caste that parasitically sits atop the workers state, the Stalinist bureaucracy uses the death penalty and other forms of repression to maintain social order. We fight for the unconditional military defense of the Chinese deformed workers state. But the fact that 1,700 human lives were snuffed out through capital punishment last year in China only underlines the need for a proletarian political revolution to overthrow the ruling bureaucracy and establish working-class soviet democracy, based on the program of proletarian revolutionary internationalism.
The “Budget” of Crime and Punishment
In the U.S., public support for the death penalty has been shaken, falling from a high of 80 percent in 1994 to 65 percent today. States like New Jersey and, more recently, New Mexico have abolished the death penalty, as juries have become increasingly reluctant to impose a death sentence. Here the calculus of state-sanctioned killing runs up against the worst economic crisis since the Great Depression. A 2009 year-end report by the Death Penalty Information Center noted: “The costs of the death penalty became an increasingly important issue as states faced severe budget deficits. High expenses with no measurable benefit were frequently cited in legislative debates about the death penalty.” The report also cited the increasing introduction of life-without-parole sentences—which the Dallas Morning News gleefully, and correctly, called “death by prison”—as a central factor in the decline of death sentences to their lowest in a decade.
Pointing to New Mexico Democratic Party governor Bill Richardson’s statement that cost of the death penalty was “a valid reason” for its repeal, an article by the reformist Workers World Party (WWP) notes: “One way to save hundreds of millions every year is to end the very expensive and wasteful death penalty and use those millions for job programs, education and health care. Every cost study in the U.S. shows that the death penalty is far more costly than life in prison” (Workers World, 13 January). That WWP advises the capitalist rulers on reducing the overhead of state repression and death is simply one of the more outrageous expressions of “money for jobs, not prisons” reformism.
While the price of death at the hands of the state may be a factor in curtailing its present use, sectors of the bourgeoisie have also been screaming over the inordinate costs of the bloated prison system. Yet even in the context of a declining crime rate, and with no immediate prospect of upheavals in the inner cities, they continue to throw more people behind bars and keep them there. A recent article in the New York Times (30 January) noted that despite a New York State law liberalizing the release of old or sick inmates who are physically incapable of committing a violent crime, few have been let go even though each inmate costs the state $150,000 a year.
Nor do the rulers tinker lightly with their machinery of death. The Workers World article, titled “Death Penalty Changes Spur Optimism,” points to the recent Supreme Court decision granting a new evidentiary hearing for Georgia death row prisoner Troy Davis. This was a real victory. Davis, a black man falsely accused of killing an off-duty cop, has three times come within hours of being executed despite the fact that seven of the nine witnesses who testified he was the killer have since recanted.
The sanctimonious declaration by Supreme Court Justice Paul Stevens that “the substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing” may sound enlightened. But one need only look to the fact that a few months later the Court ruled against the appeal of Kevin Cooper despite overwhelming evidence of his innocence, including a 103-page statement by five judges in California’s Ninth Circuit Court of Appeals. This was quickly followed by the Supreme Court’s move to have a death sentence reinstated against black political prisoner Mumia Abu-Jamal.
Reformists like WWP seek to tinker with capitalism because they imbue this system of exploitation and oppression with inherent democracy and rationality. Marxists, whether on the question of the death penalty, life in prison or imprisonment in general, do not offer advice on how to administer the capitalist state. We are opposed to the bourgeoisie’s entire machinery of repression, including the vast enhancement of repressive tools adopted under the “war on terror,” which has been wholeheartedly embraced by the Obama White House. Following the first U.S. execution since 1967, we wrote in “State Butchers Gilmore” (WV No. 141, 21 January 1977):
“The reinstitution of the death penalty is not just another legal argument lost before an increasingly reactionary Supreme Court. It is one among many proofs of the failure of capitalism in its death agony to fulfill its promise of a decent life
. Only the victorious proletarian revolution that overthrows the bourgeois state will abolish the death penalty for good and smash the prisons, in the course of rooting out the whole vicious cycle of crime, punishment and repression caused by capitalism.”