The Death Penalty's Darkside: A Response to Phyllis Goldfarb's <em>Matters of Strata: Race, Gender, and Class Structures in Capital Cases</em>

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, several state court judges have risen to the occasion, calling out the impermissible taint of bias that colors the death penalty.

This Response suggests how the death penalty’s connection to slavery should inform death penalty jurisprudence and concludes with a discussion of the future of abolition, given a Supreme Court in flux.