Jim Acker, O'Leary Professor in UAlbany's School of Criminal Justice, is an expert on the history of capital punishment in the United States, as seen through UAlbany's National Death Penalty Archive. Here, he explains why U.S. Supreme Court may be poised to reshape the legal landscape around the death penalty, including how we define cruelty, and what it might take to finally remove race and class from the calculus of who is sentenced to death.
In addition to capital punishment, Jim Acker has extensively studied wrongful convictions — that is, those moments when our justice system fails the accused in the worst imaginable way.
It’s a phenomenon inseparable from the death penalty debate because it represents a nightmare scenario: a life wrongfully taken as punishment for a crime the person did not commit.
These issues converged in the infamous 1931 Scottsboro Boys case, which Jim analyzed in his 2008 book Scottsboro and its Legacy: The cases that challenged American legal and Social Justice.
Like so much to do with capital punishment and justice in America, the Scottsboro Boys case —in which nine Black teenagers were accused of raping two white women on a train in Alabama —was inseparable from the racial socioeconomic context in which it happened. It’s also an example of a time when the legal system ultimately spared the defendants from death but not the other devastating consequences of wrongful conviction, including lengthy imprisonments.
We asked Jim about the case in part of our conversation that didn’t make the final edit. Here’s what he had to say.
Host: Did the Scottsboro Boys case change your understanding of capital punishment? Or did it more or less reaffirm what you already understood about the social, racial, socioeconomic forces that impact how the death penalty has been implemented in the United States?
Jim Acker: They were sentenced to death in circumstances that can only be described as reflecting the social and racial prejudices of the time. It reaffirmed the ugliness of some of the aspects of the death penalty in terms of preying on African-Americans who had no fair chance in the Alabama courts at the time.
A New York lawyer actually got involved in the case after the first convictions were overturned, and Sam Liebowitz did a tremendous job, but it was hopeless. He was in front of the same kind of jurors in the same system.
Host: And they were nearly lynched before even getting into a courtroom when they were arrested, right?
JA: This is a classic case of wrongful convictions. The rapes never happened. The complaining witnesses lied, I think, pure and simple. But the rapes supposedly happened on a train that was going through northern Alabama, and word was given to the next train station down the way that this allegedly had happened.
So there was a huge crowd that rousted all the African-Americans off the train. This is the start of the depression, people riding the rails. There were these nine guys, four of them knew one another, the rest didn't. They were just on the train. They all got rounded up and hog tied. They got taken to a jail in Scottsboro, Alabama. Crowds gathered. The governor had to call out the National Guard. Yeah, it could have resulted in a lynching. As it was, it turned into a so-called legal lynching because the trials were a sham and there was no justice in the state of Alabama at the time. The U.S. Supreme Court twice had to overturn convictions of the Scottsboro boys, and while eventually none of them were executed, many of them spent years and years in prison.
Visit the National Death Penalty Archive in UAlbany’s M.E. Grenander Special Collections and Archives
That landmark 1972 case that Jim mentioned a few times, Furman v. Georgia? Here’s more background from Harvard Law School.
Read more of Jim’s take on the Hamm v. Smith case recently before the U.S. Supreme Court in his commentary published in the (Albany, N.Y.) Times Union.
And here’s an explainer on how the court dispatched the Hamm case in June without taking up the underlying issue, which could upend a quarter-century of settled law on whether executing people with intellectual disabilities constitutes cruel and unusual punishment.
Guerrero v. Johnson is the next case the Supreme Court will hear in its coming session regarding defendants claiming an intellectual disability.
Audio editing and production by Scott Freedman
Photos by Mario Sotomayor
Hosted and written byJordan Carleo-Evangelist
[0:01] Host: Welcome to The Short Version, the UAlbany podcast that tackles big ideas, big questions and big news in less time than it takes to cross the Academic Podium. I'm Jordan Carleo-Evangelist in UAlbany's Office of Communications and Marketing.
[0:17] James Acker: We have this slogan chiseled over the Supreme Court building that says equal justice under law. So what do we do if these aspirations of equality and justice are in conflict? Do we have to choose? Should we insist on having both?
[0:38] Host: America has a long and contentious relationship with capital punishment. Since colonial times, the debate over the death penalty has forced us to confront deeply challenging questions. Under what circumstances can or should we trust the government to take a life as punishment for a crime? What is owed to murder victims and their survivors? What if errors lead to executions of the innocent?
To understand how all this moral and procedural complexity plays out in real life, you need to understand the checks and balances built into America's sometimes messy system of government. When it comes to this most final punishment, we mostly leave it to 50 different states to decide what to do. Congress and state legislatures pass laws allowing juries to impose death or not. The president and governor sign or veto them. Prosecutors, juries, and trial judges make charging decisions, weigh the evidence, and balance the rights of the accused versus the interests of society and the authority of the state.
Appellate courts all the way up to the US Supreme Court then intervene, or don't, to ensure the death penalty is used justly and equitably. Yet the record shows that capital punishment has often been neither. You see, the story of the death penalty in the United States is also the story of racial, economic, and geographic disparities.
To Jim Acker, a death penalty scholar and O'Leary Professor in UAlbany’s School of Criminal Justice, these truths are inescapable. And they are laid bare in UAlbany's National Death Penalty Archive, a trove of records that chronicle thousands of executions dating back to the 1600s. Jim and colleagues have spent decades mining the archive for what it can tell us about what the Supreme Court once called our "evolving standards of decency."
The insights gleaned from the archive are significant today, as several pending court cases could herald major shifts in decades of legal precedent on capital punishment.
Could the Supreme Court, for instance, reopen the door to executing people with intellectual disabilities, or juvenile offenders? Will crimes other than murder, like child sexual assault, be allowed to be punished by death?
We talked to Jim about all that, about the study of human behavior and how we punish it, and what it might take to banish once and for all, the shadows of race and class from decisions about who we sentence to die.
Here's our conversation.
[3:12] Host: Before you got to law school, you did undergraduate work in, I think, psychology and sociology. Those are disciplines that look at human cognition, human behavior. What was the progression from that to law school?
[3:25] JA: I actually began a doctoral program in psychology after I graduated from my undergraduate years at Indiana University. I was fascinated by social psychology and individual decision making, small group decision making. That kind of got me interested in juries. Criminal justice is in part a discipline that builds on the social sciences. In part, it requires an understanding of human behavior, why people commit crimes. But beyond that, what do we do? How do we prevent? How do we respond? What's our policing, our correctional system and the underbelly or the overlay, however you might think a bit about the law, which defines crimes and then defines punishments.
[4:13] Host: Specifically, how did you end up interested in the death penalty?
[4:16] JA: I started law school in the early-to mid-1970s. And my favorite subjects turned out to be constitutional law and criminal law, criminal procedure. And right about that time, the Supreme Court had decided this landmark death penalty case, Furman v. Georgia — a 1972 decision which essentially terminated the death penalty in the United States for a four-year period. And reading that opinion in law school was eye-opening. At the time, it was, I think, one of the longest opinions ever written by the Supreme Court. It's something like 248 pages. And the perspectives that were delivered in this case were just fascinating. It impressed me that the law builds on so much history, politics, sociology, empiricism, morals, philosophy, everything. I began practicing law in North Carolina in 1976. And as a very young lawyer, I got appointed to represent an individual charged with first-degree murder. So now these theoretical matters surrounding the death penalty really hit home.
Here a man's life is theoretically in my hands. The case eventually went away. The prosecution didn't have much. So I never really got to a capital trial. But as I practiced law in North Carolina for about four years, and at that point I decided, “Yeah, I'm really not cut out to be a lawyer.” I wanted a more theoretical dimension of thinking about the law. So I packed my bags and I came to the University at Albany to pursue a PhD in criminal justice. And that allowed me to keep building on my interest on how society deals with people that are charged with committing very serious crimes. And again, how we should respond and why.
[6:25] Host: This notion that even what we consider to be a crime is socially constructed. We decide this behavior is allowed, this behavior is not allowed. This behavior is not allowed, and it's a capital offense. This behavior is not.
[6:39] JA: I teach a 200-level Intro to Law and Criminal Justice here at the University. And very early in the semester, I come out with a profound sounding statement that once upon a time there was no crime, which is true. But it's also true that from time immemorial, people have been committing acts of violence and have been interrupting other people's property interests. We just didn't have a name for it. And crime evolved as a social construct where private individuals had to do something when their ox got stolen or injured by somebody else. So the government comes and says certain conduct not only represents harms between and involving individuals, but to society. It was a breach of the king's peace. So the king, the crown, the sovereign became a party formally to harms that once upon a time were confined to individuals. So what we call a crime is a social construct and now it's a legal construct.
Lots of social wrongs do cause harms, but we don't call them criminal. It has to involve some more fundamental breach.
[7:56] Host: There is no greater punishment that a government can mete out than to take the life of someone convicted of committing a crime. And yet it's one of those things, at least in the United States, where it's essentially up to 50 different collections of people to decide whether they'll allow it, in what context it will be allowed, and how you will do it.
[8:26] JA: Our Constitution, which is the supreme law of the land, when we start to talk about the death penalty, we most closely focus on the Eighth Amendment, which prohibits cruel and unusual punishment. So the states obviously must abide by federal constitutional strictures, including the cruel and unusual punishment clause. But so long as they confine themselves to what the Constitution permits, they have every opportunity to say, "We want to punish murder with death or we don't." And nowadays in this country, there is this diversity with respect to capital punishment. I think there are 27 states that authorize capital punishment, 23 that don't, including New York.
[9:17] Host: Let's talk about New York. We do not have the death penalty in New York via state law. The Legislature passed the law implementing the death penalty. And then the Court of Appeals invalidated parts of the procedure for implementing that law. Can you talk a little bit about why we don't have it today?
[9:37] JA: New York has a long history of implementing capital punishment. I think if we go back to colonial times, New York still ranks maybe second in terms of the number of people who have been lawfully executed. By the mid 1960s, the death penalty was very much in decline. Furman versus Georgia in 1972, the Supreme Court decision said, "You can't do it this way." New York, like many other states, re-implemented the death penalty, but New York did it wrong. In response to Furman, New York returned to a system of mandatory capital punishment. If anybody convicted of first degree murder automatically got the death penalty. Well, in 1976, the Supreme Court said, no, you have to give individual consideration to each and every case. You can't, before the fact, mandate death. And that began a two decade long song and dance between the legislature and governors. Every year from 1977 up until 1994, the New York Legislature would reenact a death penalty law.
And first, Gov. Carey, and then Gov. Mario Cuomo, would veto the law. George Pataki takes office in 1995 and had promised to bring the death penalty back. So the Legislature enacted a death penalty law. Governor Pataki did not veto it. It went into effect in 1995 and remained in effect until about 2004. The Legislature got it wrong again in terms of the procedures that they designed for juries to sentence people to death. And there's not been sufficient enthusiasm among the Assembly and Senate here in New York to try to cure that procedural defect. So there's no viable death penalty in New York at the state level. The death penalty historically and today has primarily been implemented by southern states. I might just amplify that race forever in this country has been inseparable from the administration of capital punishment with revised death penalty laws that the Supreme Court approved in 1976.
The laws looked promising on paper, not so much in practice. In 1987, the Supreme Court was confronted with very persuasive empirical study of how the death penalty was administered in the state of Georgia. And the study demonstrated that if you kill a white person, you are over four times more likely to be prosecuted, convicted, and sentenced to death than if you kill a black person for everything else is the same. The system was treating the murder of a white as a much more serious offense than the murder of a black person.
[12:52] Host: So if laws cannot solve it, we're talking essentially then a manifestation of society, right? Is the problem of race and the death penalty solvable if we can't legislate or through jurisprudence fix the laws that govern capital punishment to make it equitable?
[13:17] JA: This is so complicated because the legal system is part of a larger social system and political system. And what we see in society generally is going to find its way one way or another into the legal system and into the courtroom. But here's where there is some hope. I think if the racial aspects of the death penalty are going to be eliminated as our society becomes more pluralistic, prosecutors respond to community sentiment, media attention, what makes the headlines? Who becomes a prosecutor? That's one part of the system. And then we get to the jurors who are going to be asked to make these life-or-death decisions. And as we get more heterogeneous citizens in the jury box, it's going to be a more diversified set of attitudes and views about whether this penalty is appropriate. If there's hope, I think it will be consistent with broader social attitudes about race and opportunities to participate in the positions of authority.
[14:36] Host: We have here at the disposal of policymakers, legislators, folks who are interested in this issue, scholars, the National Death Penalty Archive at the University of Albany. What can you tell me about what's in that archive, how it came to be here, and why it's useful for people who are thinking critically about the death penalty, either from a policy perspective or a scholarly perspective?
[14:59] JA: We have a National Death Penalty Archive here that we believe represents the largest collection of historical materials about capital punishment in the country. It came to the University about a quarter of a century ago. Another individual at the School of Criminal Justice, Dr. Charles Lanier, and I had been doing a lot of death penalty work together. We learned that a researcher at Southern Methodist University who'd been following the death penalty for years was looking for a place to house all of the research that he'd been compiling. And one thing led to another and we said, "Well, maybe we could persuade the library here to begin an archival collection." So we've worked with the Grenander Special Collections people here at the University at Albany and built on that beginning and now have acquired some extraordinary and unique resources. I think one of the biggest and most widely used collections in the National Death Penalty Archive are the Espy Execution Records.
Watt Espy lived in a small town in Alabama and devoted his life to going around the country and collecting information about executions that date back to the 1700s. So he found 16,000 executions carried out. And in the National Death Penalty Archive, we have Watt Espy's records. They're handwritten notes. They're typewritten notes. There are court documents that show who has been executed for what in all of the states for well over 200 years. It's a remarkable collection that's accessible to people interested in the history of executions. And we were speaking about juries. We have files from the Capital Jury Project. They interviewed people from multiple states who were actual jurors in death penalty cases. Half of the cases that they focused on ended in a death sentence, half ended in a life sentence. And they asked these jurors, "How did you arrive at these decisions?" And probably to nobody's great surprise, once again, the law on the books and the way the law gets administered, there's something of a disconnect.
The National Death Penalty Archive is here. It provides an abundance of opportunity for people who are interested in history or any aspects of the death penalty, and we hope people will come and use them.
[17:52] Host: So you wrote recently about the Hamm v. Smith case in the Supreme Court, which could have, but didn't, roll back the prohibition on instituting capital punishment on someone with a cognitive impairment. But we've also spoken about what was a general movement away from the death penalty throughout the 20th century in the United States. It seems like things are shifting back.
[18:19] JA: The Supreme Court ruled in 2002 that the Eighth Amendment prohibits the execution of people who are intellectually disabled. What I found interesting among other things about Hamm v. Smith is that beneath the challenge that the Supreme Court had agreed to decide, which was a rather narrow question about intellectual disability's definition, multiple attorneys general from something like 17-19 states asked the court to rethink its entire approach to interpreting the Eighth Amendment. The Eighth Amendment for years has involved applying what the courts called the “evolving standards of decency that mark the progress of a maturing society.” Now that sounds like a bunch of buzzwords, but it's not. Cruelty is a concept that takes different definition as society changes. This notion of the Constitution taking note of social developments, like what is our cultural understanding of the concept of cruelty, is in considerable tension with the views of some justices getting more and more traction in the Supreme Court about so-called originalism. What was the meaning of these words when the Constitution was ratified back in the late 18th century?
So it was an invitation for the court to reject its traditional understanding of how to interpret the Eighth Amendment and to go back to a time when it was perfectly permissible to execute people who had intellectual disabilities. And that's what is interesting to me in part about a Hamm v. Smith case. And this Supreme Court seems more and more inclined toward a conservative interpretation of the Eighth Amendment, among other things, that may again broaden the application of the death penalty. There are changes in the wind.
[20:41] Host: That was Jim Acker, O'Leary Professor of criminal justice at UAlbany, discussing the past and future of the death penalty in the United States.
We have an important update to our conversation. Shortly after we spoke to Jim, the U.S. Supreme Court agreed to hear a case this fall that will examine the process by which defendants who claim to be intellectually disabled are allowed to challenge their death sentences as our understanding and definition of intellectual disabilities changes. As Jim said, stay tuned.
To learn more about the National Death Penalty Archive at UAlbany and Jim's scholarship on wrongful convictions, including the infamous Scottsboro Boys case, be sure to check out the Longer Version in our show notes.
The Short Version would not be possible without contributions from many people, including this week audio production and editing from Scott Freedman in UAlbany's Digital Media Studio, deep inside the Podium tunnels.
We'll be back next week with another quick conversation about something interesting. I'm Jordan Carleo-Evangelist here at the University at Albany, and this has been The Short Version.