Racial injustice has always cast a shadow over American criminal justice. In the context of capital punishment, racial disparities have been evident since colonial times. Black people have suffered not only disparate treatment as alleged perpetrators and victims of capital crimes under facially neutral capital statutes, but also explicit racial discrimination under antebellum capital statutes that varied in their application based on the racial status of victims and perpetrators. Following the Civil War, blacks suffered a lengthy era in which lynchings were common, followed by an era of so-called legal lynchings in the South, in which legal protections were minimal at best. Against this backdrop, it is unsurprising that the NAACP Legal Defense and Education Fund led the constitutional-litigation campaign against the death penalty in the 1960s and 1970s. What is surprising, however, is the Supreme Court’s avoidance of the race issue in its foundational constitutional cases. Despite the centrality of racial discrimination in litigants’ arguments, the Court consistently avoided direct engagement with the issue of racial discrimination in capital punishment. After surveying the centrality of race both to the history of capital punishment in America and to the litigants’ constitutional strategy, we document the Court’s strategies of avoidance. We then consider possible explanations for the Court’s silence and note some unanticipated consequences of the Court’s race-neutral approach to its constitutional regulation of capital punishment.
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