Curtis Flowers has been tried for the same quadruple-homicide in Mississippi six times. Each trial has resulted in either a conviction (and death sentence) or mistrial. And each conviction was eventually thrown out on appeal, due to continued misconduct by district attorney Doug Evans. Even still, Flowers spent most of his life on death row until charges against him were finally dropped in 2020. And there is real reason to believe that Flowers would still be on death row if not for a popular podcast that exposed the paper-thin case against him. Both key witnesses against Flowers have recanted their testimonies. Odell Hallman said he gave false testimony in exchange for leniency on his own crimes. Clemmie Fleming said that she has always been unsure about her own testimony, but worried that she would face retribution if she didn’t go along with the prosecution.
Flowers isn’t alone. A pair of intellectually disabled Black brothers were coerced into confessing to a rape-murder and spent nearly thirty-one years in prison (one brother on death row) before DNA evidence exonerated them. All told, 185 death row inmates have been exonerated since 1973.
In some ways, these are the lucky ones. Ledell Lee was executed for murder by the State of Arkansas in 2017. New DNA evidence suggests that Lee, who always maintained his innocence, was not the killer. Lee is one of many. There is reason to believe at least 1500 innocent people have been executed in the United States since 1976. Elementary civics classes suggest that the American justice system is designed with the belief that it is better to let ten guilty men go free than to imprison one innocent man. The realities of capital punishment betray that ideal.
Of course, not all death row inmates are innocent. In Texas, Quintin Jones took full responsibility for killing his great-aunt when he was a twenty-year-old drug addict in 1999. But that didn’t mean he deserved to be killed on May 19. Jones had been a model inmate for twenty-one years. Even family members of his victim begged for his sentence to be commuted to life in prison. That represents one of the many injustices of capital punishment: the decades-long process means that the person being killed- even if indeed guilty- may be an entirely different person from the one convicted. That long process is theoretically designed to provide ample opportunities for defendants to exonerate themselves, but the Ledell Lee case is one of many that prove this to be a fantasy.
Capital punishment is not a matter of punishment fitting the crime. It’s punishment for being prosecuted in the wrong county or wrong state. You may notice that all the above-mentioned cases are in Southern states. That’s not a coincidence. As Supreme Court Justice Stephen Breyer once wrote:
“Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide. And in 2012, just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences nationwide.”
In fact, a map from the Death Penalty Information Center shows that the counties Black defendants are sentenced to death in closely mirrors where Black Americans were lynched in the Jim Crow era.
The fact is, the death penalty is a proven institution of racism. Killers of white people are more likely to be executed than killers of Black people. Hispanic defendants are more likely to be sentenced to death than white defendants. Black jurors are more likely to be struck from juries. This was a hallmark tactic of district attorney Doug Evans as he prosecuted Curtis Flowers, who is Black.
Capital punishment is discriminatory in other ways, as well. All convicts executed last year either had a mental or emotional disability, or were under the age of twenty-one when the crime in question was committed. Right now, a Florida prosecutor is seeking the death penalty for an intellectually disabled man in a case that seems to lack irrefutable evidence.
You may have noticed that in the case of those innocent North Carolina brothers, they were convicted of the same crime, but only one was sentenced to death. That is a common occurrence. The Death Penalty Information Center shows that those executed last year often had co-defendants who were no less guilty but given less severe sentences.
Taken together, there is simply no way to interpret these facts as products of a well-functioning punitive practice. The death penalty is not a punishment, it’s a cruel lottery.
Defenders of the death penalty, ignoring the randomness of its enforcement, will claim that it acts as a deterrent. Any rational person wouldn’t engage in behavior that could lead to them being executed. But heinous crimes are inherently irrational, and the truth is that it’s hard to imagine a crime that could possibly be deterred by threat of death that wouldn’t also be deterred by threat of life in prison. The ACLU reports that most capital murders are acts of passion, committed without consideration of consequences.
Unfortunately, some states seem addicted to the death penalty. A shortage of drugs used in lethal injections has arisen because more and more pharmaceutical companies are reluctant to sell their products as lethal weapons. So legislators in South Carolina, desperate to continue executions, voted to bring back the firing squad- a horrifying reminder that some lawmakers just want to kill people.
Capital punishment in the twenty-first century is a predominantly Southern practice, but progress is being made. As The New South Rising wrote late last year, the 2020 election brought a new wave of reform prosecutors to the South. Candidates in Austin, New Orleans, Atlanta, and Athens were all elected on pledges that they would not seek the death penalty in any cases. In March, Virginia became the first Southern state to abolish the death penalty.
Still, we have a long way to go. All Southerners now face an imperative to seek out candidates in prosecutorial and legislative elections who will actively oppose continuing the pattern of injustice that is capital punishment.
This is how the New South rises.