Death penalty

The death penalty is the state’s most irreversible punishment: a sentence that turns a criminal judgment into a legally sanctioned killing. In the book, it is both a legal institution and a measure of how fear, racial hierarchy, unequal access to counsel, and ideas about victims shape American justice. Its harms appear not only in executions, but also in the long wait on death row, the wrongful convictions that bring people close to death, and the permanent judgments imposed on children. The cases considered here repeatedly unsettle the claim that the system can reliably identify who deserves to die.

A Punishment Shaped by History and Race

The book connects modern capital punishment to a much longer history of racial control. After slavery, Southern laws and institutions worked to restore white supremacy and regulate intimate relationships across racial lines. Anti-miscegenation statutes criminalized interracial sex and marriage; for more than a century, law-enforcement officials in many Southern communities treated the punishment of Black men who had been intimate with white women as part of their duty. The racial fear surrounding Walter McMillian and Karen Kelly belonged to this history, not merely to a private scandal. The preoccupation with Black men and white women endured as part of a system that had also used racial-integrity laws to reinforce hierarchy and justify coercive policies against poor and minority women.

The book also places the death penalty in the aftermath of Reconstruction and the racial terror that followed it. The collapse of federal protection in the 1870s brought the loss of Black voting rights and the rapid return of white supremacy in Alabama. Later, racial terror, including lynching, helped shape the modern death penalty. The book argues that speedy legal executions partly redirected the violence of lynching while reassuring white Southerners that Black men would still face the ultimate punishment. In this account, the movement from mob violence to state execution did not erase racial power; it changed the form through which that power was exercised.

Racial inequality persisted in the people who controlled prosecution and jury selection. In 1987, all forty elected district attorneys in Alabama were white, despite sixteen majority-Black counties. In Monroe County, which was 40 percent Black, prosecutors had often been able to strike Black residents from serious-felony juries. Constitutional rulings against exclusion did not quickly end the practice: discretionary peremptory strikes remained difficult to challenge, and for decades the evidentiary standard was so demanding that no challenge had succeeded. Batson v. Kentucky, decided in 1986, made challenges to discriminatory strikes more direct, but the book notes that it also forced prosecutors to seek more creative ways of excluding Black jurors. For a Black defendant facing a capital trial, the composition of the jury could shape whether the community’s doubts about guilt or punishment ever entered the courtroom.

The Reach of Death Sentences

When Bryan Stevenson first visited death row in December 1983, the United States was entering a sharp expansion of imprisonment and extreme punishment. In the period described by the book, the prison population had grown from 300,000 in the early 1970s to 2.3 million, while nearly six million people were on probation or parole. Hundreds of people had been executed by shooting, hanging, gassing, electrocution, or lethal injection, and thousands more awaited execution. These figures place capital punishment within a punitive system that also sent children to adult prisons and imposed sentences designed to end any possibility of return.

The death penalty’s reach extended to children. Alabama had more juveniles sentenced to death per capita than any other state or country, and many of Stevenson’s clients had been sentenced for crimes they were accused of committing at sixteen or seventeen. The law governing children varied by age: the Supreme Court of the United States had upheld the juvenile death penalty in 1989, while a ruling the previous year barred execution for children younger than fifteen. The case of George Stinney shows what that power meant in practice. At fourteen, he was tried before an all-white jury after a trial lasting only a few hours; the jury deliberated for ten minutes. His court-appointed lawyer called no witnesses, and the prosecution relied on a sheriff’s account of an alleged confession. Sentenced to death, Stinney was executed in the electric chair in South Carolina. At five feet two inches and ninety-two pounds, he was too small for the electrodes to fit properly, so prison staff placed a Bible under him. He died without family or people of color present in the execution room. Years later, a deathbed confession by another man was rumored, and efforts to exonerate Stinney began.

The book distinguishes death sentences from life imprisonment without parole but treats both as part of a system that can declare a child permanently beyond change. It describes a late-twentieth-century panic about supposed juvenile super-predators that prompted nearly every state to expand adult prosecution of children. Some states lowered or eliminated minimum ages, and mandatory-transfer rules removed discretion to keep children in juvenile court. The predictions behind the panic proved false: juvenile crime declined after 1994, and a 2001 federal report called the theory a myth. Yet the legal barriers facing people sentenced as children remained formidable. In later litigation, advocates emphasized developmental differences and focused on particularly young children and on children serving life without parole for non-homicide offenses. That argument drew a comparison with the death penalty: both a death sentence and a sentence requiring a person to die in prison can function as an irreversible judgment on an entire life, even when the person is still a child with a capacity to change.

Error, Appeals, and Unequal Protection

The danger of an irreversible sentence is magnified when the process used to impose it is unreliable. Walter McMillian’s case brings together disputed testimony, racial exclusion, and judicial power. On appeal, Stevenson challenged the lack of credible corroboration for Ralph Myers’s testimony, argued that Alabama law did not permit the state to rely solely on an accomplice’s account, and raised prosecutorial misconduct, discriminatory jury selection, and a change of venue. He also challenged Judge Robert E. Lee Key’s decision to override the jury’s sentence of life imprisonment and impose death. The Alabama Court of Criminal Appeals rejected every argument and affirmed the conviction and death sentence. Stevenson considered the result a severe failure of justice, even though a life sentence would still have left an innocent man imprisoned without parole.

The book shows both the possibility and the limits of appellate correction. In the early 1990s, Stevenson’s organization won reversals in four death-penalty cases in 1990, four more in 1991, and relief for another eight death-row prisoners by the end of 1992. Courts sometimes complained about having to order new trials or grant relief, yet continued to do so. Those successes did not make relief certain for McMillian; they made the fight possible. Wrongful convictions had already led to dozens of releases from death row. The Death Penalty Information Center counted McMillian as the fiftieth person exonerated in the modern era, but his case drew more attention than earlier exonerations. His release became a counternarrative to claims that the system was fair and reliable, particularly as the country’s executions accelerated.

Victims’ rights, too, appear in the book as unevenly distributed. After the Supreme Court expanded victims’ formal roles in criminal proceedings, states funded advocacy groups, included advocates on parole boards, and gave victim services a larger place in prosecutors’ offices. But the status of a victim could also reinforce unequal treatment. In McCleskey v. Kemp, research showed that in Georgia defendants were eleven times more likely to receive the death penalty when their victims were white rather than Black; similar patterns appeared in other states studied. In Alabama, although 65 percent of homicide victims were Black, nearly 80 percent of people on death row had been convicted of crimes against white victims, with Black-defendant and white-victim pairings increasing the likelihood of a death sentence further. Poor and minority victims could themselves be neglected by police and prosecutors, excluded from decisions about plea bargains and sentences, or overlooked when incarcerated relatives complicated their claims to attention. The expansion of victim participation therefore did not ensure equal concern for all victims.

Execution and Its Procedures

As states moved away from hanging, firing squads, gas chambers, and electrocution, lethal injection became the most common method of execution, widely presented as more controlled and serene. The book records growing questions about whether it was actually painless or effective. In a 2004 case, David Nelson, who was in his sixties and had compromised veins after earlier drug addiction, could not be given an intravenous line by correctional staff. Alabama planned to have untrained staff make a two-inch incision in his arm or groin to find a vein. Because the procedure would be performed without anesthesia, Stevenson argued that it would cause needless pain. The Supreme Court of the United States unanimously ruled that condemned prisoners could use civil-rights actions to challenge allegedly unconstitutional execution methods. Nelson received relief from the planned procedure but died of natural causes the following year.

The human stakes of execution emerge especially sharply in Stevenson’s account of Jimmy Dill, a man with intellectual and speech disabilities. On the night of Dill’s execution, he struggled to speak and to thank Stevenson while guards made noise behind him. Stevenson reflected that Dill might not have been convicted of capital murder if he had had a competent lawyer, or sentenced to death if someone had investigated his past. Although the Supreme Court had prohibited execution of people with intellectual disabilities, Stevenson believed that Alabama did not honestly assess disability in condemned prisoners. The difficulty Dill had expressing himself did not make the crime disappear; it made the distance between the person and the state’s final judgment impossible to ignore. His impending execution sharpened the book’s question of whether a society should answer human brokenness with another irreversible act of violence.

Changing Rates and the Moral Challenge

The national execution rate rose even as doubts about wrongful convictions gained visibility. Thirty-eight people were executed in the United States in 1992, the largest annual total since the modern death-penalty era began in 1976; by 1999, the number had reached ninety-eight. Later, the trend turned. By 2010, annual executions had fallen to less than half the 1999 total, and several states abolished the death penalty. Alabama moved against the national direction: its death-sentencing rate fell from its late-1990s peak but remained the highest in the country, and by the end of 2009 it had the nation’s highest execution rate per capita. In 2009, executions of Jimmy Callahan, Danny Bradley, Max Payne, Jack Trawick, and Willie McNair reflected the relentless pace facing those who tried to stop them.

Walter McMillian’s release altered his own view of capital punishment. Before confronting it through his case, he had not given the issue much thought. Afterward, he spoke against it and remained troubled by the men he had left on death row, whom he regarded as friends. His public appearances and testimony helped make an exoneration difficult to fit inside official claims of reliability. For Stevenson, the issue reached beyond the individual innocence claim: the death penalty exposed how poverty, race, inadequate legal help, disability, and procedural rules could converge in a sentence that could never be undone.

The book’s final moral challenge is not that violent crime or victims’ suffering should be minimized. It is that suffering cannot justify making other people suffer in the name of justice, especially when the system has repeatedly shown that it can be wrong and that its protections are distributed unequally. Execution becomes a test of whether the state can recognize vulnerability and human change, or instead treats a person as no more than the worst act attributed to them. The exonerations, the children condemned to die, the unequal patterns tied to victims’ race, and the procedures devised to kill all make the same question harder to evade: whether the authority to execute can be reconciled with a justice system that is fallible, racially unequal, and capable of learning too late that it has condemned the wrong person.