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The 10 women and two men recommended the death penalty for all 18 counts that carried that as a possible sentence.

Roof will become the first federal hate crime defendant to be sentenced to death, a Justice Department spokesman said.

Judge Richard Gergel will formally sentence Roof on Wednesday at 9:30 a.m. ET. Roof, who represented himself during the penalty phase, told Gergel he wanted to file a motion for new lawyers. Gergel said Roof can argue that on Wednesday but he is not inclined to let that happen.

A group of defense attorneys and others who worked on Roof's behalf issued a statement, saying the death penalty decision means the case will not be over for a "very long time."

"We are sorry that, despite our best efforts, the legal proceedings have shed so little light on the reasons for this tragedy," the statement said.

The jurors did not look at Roof when they came in with the verdict. Several looked in the direction of the victims' families.

It was very quiet in the courtroom. There was no sound coming from the many family members.

Roof, who was facing away from the media, did not appear to show any reaction to the verdict.

Some of the people in the gallery were dabbing their eyes. Several relatives of those killed gently put their arms around each other.

"Today we had justice for my sister (Cynthia Hurd)," Melvin Graham told reporters. "This is a very hollow victory, because my sister is still gone. I wish that this verdict could have brought her back. But what it can do is just send a message to those who feel the way he feels that this community will not tolerate it."

Graham said he just wants mass killings to stop.

"Every time I hear about a shooting I want to cry," he said. "We have to stand together."

Roof's family said they will always love him.

"We will struggle as long as we live to understand why he committed this horrible attack, which caused so much pain to so many good people," they added. "We wish to express the grief we feel for the victims of his crimes, and our sympathy to the many families he has hurt."

The judge, who is bound by the jury's decision, complimented the jurors and said they did a magnificent job.

Prosecutors called the decision a result of hard work and said it was a "fair and just process."

US Attorney Beth Drake said Roof failed at his attempt to split people by race.

"Contrary to Roof's desire to sow the seeds of hate, his acts did not tear this community apart," she said. "Instead of agitating racial tensions as he had hoped, Roof's deadly attack inside Mother Emanuel became an attack on all of us, and the community stood in solidarity."

Roof: I had no choice

Before the jury deliberated his fate for three hours, Roof told the jury he still feels he had no choice but to kill nine people at the Emanuel African Methodist Episcopal Church in June 2015.

"In my confession to the FBI I told them that I had to do it, and obviously that's not really true. ... I didn't have to do anything," Roof said as he made his own five-minute closing argument in the penalty phase of his federal trial. "But what I meant when I said that was, I felt like I had to do it, and I still do feel like I had to do it."

But he also had suggested he'd like to be spared.

"From what I've been told, I have a right to ask you to give me a life sentence, but I'm not sure what good that will do anyway," Roof said. "But what I will say is only one of you has to disagree with the other jurors."

His statement followed a prosecutor's impassioned, two-hour argumentin a Charleston courtroom urging jurorsto give Roof the death penalty instead of their other option, life in prison without possibility of parole.

Jurors convicted Roof, an avowed white supremacist, last month of federal murder and hate crimes charges.

The prosecution and defense rested in the penalty phase on Monday, bringing to a close days of heartbreaking testimony from family and friends of victims who were killed.

Prosecutors argued that he's a calculating killer who deserves the death penalty because of his motive, his lack of remorse and the shooting's impact on the victims' families.

Prosecutor reminds jurors of gruesome details

In his closing argument Tuesday morning, Assistant US Attorney Jay Richardson described the lives of all nine victims, cited Roof's "racist hatred" and reminded the jurors of the testimony and evidence that convicted him:

* Roof was at the church three previous times to scout his target.

* He sat with the group for 40 minutes before shooting.

* He pulled the trigger "more than 75 times ... reloading seven times" as he stood over his victims, shooting them repeatedly.

* He "showed not one ounce of remorse."

* Richardson referred to what Roof had told investigators in a recorded interview: That "somebody had to do it," in part because "black people are killing white people every day."

"Those are the words of an extraordinary racist who believed it was justified," Richardson said.

Roof's jailhouse journal

Earlier in the penalty phase, prosecutors presented evidence that included chilling writings from a jailhouse journal Roof wrote after the attack.

"I would like to make it crystal clear. I do not regret what I did," Roof wrote in the journal. "I am not sorry. I have not shed a tear for the innocent people I killed."

Friends and relatives of victims slain in the shooting gave emotional testimony in court before Tuesday, some of them sobbing on the stand.

As they made their case, prosecutors played haunting recordings of the victims preaching, praying and singing.

Facing the death penalty

Roof is also set to be tried on state murder charges, and prosecutors have said they'll also seek the death penalty in that case.

Serial killer Gary Lee Sampson was the last person to get a federal death sentence. He's one of 63 federal prisoners, including Boston Marathon bomber Dzhokhar Tsarnaev, awaiting execution, according to the Death Penalty Information Center, a Washington-based nonprofit.

Only three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium:

* Oklahoma City bomber Timothy McVeigh on June 11, 2001, six years after he killed 168 people.

* Juan Raul Garza on June 19, 2001, eight years after he was convicted of running a marijuana drug ring and killing three people.

* Louis Jones on March 18, 2003, eight years after he kidnapped and murdered 19-year-old Army Pvt. Tracie McBride.

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dylann roof jury: death penalty for charleston church shooter - cnn

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Khushbu Shah, Jason Hanna, Catherine E. Shoichet and Martin Savidge, CNN

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Dylann Roof jury: Death penalty for Charleston church shooter

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The 10 women and two men recommended the death penalty for all 18 counts that carried that as a possible sentence. Roof will become the first federal hate crime defendant to be sentenced to death, a Justice Department spokesman said. Judge Richard Gergel will formally sentence Roof on Wednesday at 9:30 a.m.

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People continued to be sentenced to death and executed for offences that do not meet the "most serious crimes" threshold of "intentional killing" as set out in international law and standards.

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Timeline

1920s - 1940s - American abolition movement loses support.

- 1970 Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials.

- 1989 Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

1998 - Karla Faye Tucker and Judi Buenoano executed.

- 2002 Ring v. Arizona. A death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury.

- 2002 Atkins v. Virginia. the execution of "mentally retarded" defendants violates the Eighth Amendment's ban on cruel and unusual punishment.

June 2004 - New York's death penalty law declared unconstitutional by the state's high court.

March 2005 - In Roper V. Simmons, the United States Supreme Court ruled that the death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment.

- June 2008 Kennedy v. Louisiana. Capital punishment cannot apply to those convicted of child rape where no death occurs.

Introduction to the Death Penalty
Early Death Penalty Laws
The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.

In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the following century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. This trend would not last, for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been executed. Some common methods of execution at that time were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Executions were carried out for such capital offenses as marrying a Jew, not confessing to a crime, and treason.

The number of capital crimes in Britain continued to rise throughout the next two centuries. By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many juries would not convict defendants if the offense was not serious. This lead to reforms of Britain's death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the 222 crimes punishable by death. (Randa, 1997)
The Death Penalty in America
Britain influenced America's use of the death penalty more than any other country. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain. In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians.

Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father, or denying the "true God," were punishable by death. (Randa, 1997)

The Abolitionist Movement
Colonial Times
The abolitionist movement finds its roots in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria's 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. (Schabas 1997)

American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia's death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.

Also influenced was Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society. Rush challenged the belief that the death penalty serves as a deterrent. In fact, Rush was an early believer in the "brutalization effect." He held that having a death penalty actually increased criminal conduct. Rush gained the support of Benjamin Franklin and Philadelphia Attorney General William Bradford. Bradford, who would later become the U.S. Attorney General, led Pennsylvania to become the first state to consider degrees of murder based on culpability. In 1794, Pennsylvania repealed the death penalty for all offenses except first degree murder. (Bohm, 1999; Randa, 1997; and Schabas, 1997)
Nineteenth Century
In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the northeast. In the early part of the century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carrying them out in correctional facilities.

In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit. (Bohm, 1999 and Schabas, 1997).

Although some U.S. states began abolishing the death penalty, most states held onto capital punishment. Some states made more crimes capital offenses, especially for offenses committed by slaves. In 1838, in an effort to make the death penalty more palatable to the public, some states began passing laws against mandatory death sentencing instead enacting discretionary death penalty statutes. The 1838 enactment of discretionary death penalty statutes in Tennessee, and later in Alabama, were seen as a great reform. This introduction of sentencing discretion in the capital process was perceived as a victory for abolitionists because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws had been abolished by 1963. (Bohm, 1999)

During the Civil War, opposition to the death penalty waned, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. The electric chair was introduced at the end of the century. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted this execution method. (Randa, 1997)
Early and Mid-Twentieth Century
Although some states abolished the death penalty in the mid-Nineteenth Century, it was actually the first half of the Twentieth Century that marked the beginning of the "Progressive Period" of reform in the United States. From 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official. However, this reform was short-lived. There was a frenzied atmosphere in the U.S., as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. As a result, five of the six abolitionist states reinstated their death penalty by 1920. (Bedau, 1997 and Bohm, 1999)

In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas chamber was constructed. (Bohm, 1999)

From the 1920s to the 1940s, there was a resurgence in the use of the death penalty. This was due, in part, to the writings of criminologists, who argued that the death penalty was a necessary social measure. In the United States, Americans were suffering through Prohibition and the Great Depression. There were more executions in the 1930s than in any other decade in American history, an average of 167 per year. (Bohm, 1999 and Schabas, 1997)

In the 1950s, public sentiment began to turn away from capital punishment. Many allied nations either abolished or limited the death penalty, and in the U.S., the number of executions dropped dramatically. Whereas there were 1,289 executions in the 1940s, there were 715 in the 1950s, and the number fell even further, to only 191, from 1960 to 1976. In 1966, support for capital punishment reached an all-time low. A Gallup poll showed support for the death penalty at only 42%. (Bohm, 1999 and BJS, 1997)

Constitutionality of the Death Penalty in America
Challenging the Death Penalty
The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a "cruel and unusual" punishment, and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court had decided in Trop v. Dulles (356 U.S. 86), that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop was not a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States had, in fact, progressed to a point that its "standard of decency" should no longer tolerate the death penalty. (Bohm, 1999)

In the late 1960s, the Supreme Court began "fine tuning" the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.

The other 1968 case was Witherspoon v. Illinois (391 U.S. 510). In this case, the Supreme Court held that a potential juror's mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that the juror's attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment.
Suspending the Death Penalty
In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was "beyond present human ability."

The issue of arbitrariness of the death penalty was again be brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U.S. 238)). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty.
Reinstating the Death Penalty
In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.

Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall holding in Furman was that the specific death penalty statutes were unconstitutional. With that holding, the Court essentially opened the door to states to rewrite their death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness in capital sentencing. The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina (428 U.S. 280 (1976)).

Other states sought to limit that discretion by providing sentencing guidelines for the judge and jury when deciding whether to impose death. The guidelines allowed for the introduction of aggravating and mitigating factors in determining sentencing. These guided discretion statutes were approved in 1976 by the Supreme Court in Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time. Another reform was the practice of automatic appellate review of convictions and sentence. The final procedural reform from Gregg was proportionality review, a practice that helps the state to identify and eliminate sentencing disparities. Through this process, the state appellate court can compare the sentence in the case being reviewed with other cases within the state, to see if it is disproportionate.

Because these reforms were accepted by the Supreme Court, some states wishing to reinstate the death penalty included them in their new death penalty statutes. The Court, however, did not require that each of the reforms be present in the new statutes. Therefore, some of the resulting new statutes include variations on the procedural reforms found in Gregg.

The ten-year moratorium on executions that had begun with the Jackson and Witherspoon decisions ended on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah. Gilmore did not challenge his death sentence. That same year, Oklahoma became the first state to adopt lethal injection as a means of execution, though it would be five more years until Charles Brooks became the first person executed by lethal injection in Texas on December 7, 1982.

Continued in Part II

Return to Index
Sources
Amnesty International, " List of Abolitionist and Retentionist Countries," Report ACT 50/01/99, April 1999

D. Baker: "A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997"; 10(3) Women and Criminal Justice 57 (1999)

R. Bohm, "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," Anderson Publishing, 1999.

"The Death Penalty in America: Current Controversies," H. Bedau, editor, Oxford University Press, 1997.

K. O'Shea, "Women and the Death Penalty in the United States, 1900-1998," Praeger 1999.

W. Schabas "The Abolition of the Death Penalty in International Law," Cambridge University Press, second edition, 1997.

"Society's Final Solution: A History and Discussion of the Death Penalty," L. Randa, editor, University Press of America, 1997.

V. Streib, " Death Penalty For Female Offenders January 1973 to December 2002," Ohio Northern University, 2003.

Sources for additional information about the death penalty
Books Law Review & Journal articles Resources DPIC Reports

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Timeline 1920s - 1940s - American abolition movement loses support. - 1970 Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials. - 1989 Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

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50 Facts About the Death Penalty | Death Penalty Information Center

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Many of these individuals were convicted based on flawed evidence or testimony. Some were convicted based on forced confessions given under duress. Many were the victims of prosecutorial misconduct. On average, it took more than 11 years after these 153 people were sentenced to death before they were exonerated.

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Read CNN's Death Penalty Fast Facts to learn more about capital punishment in the United States.

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Although the death penalty is still considered constitutional by the Supreme Court, Americans' appetite for this barbaric practice diminishes with each passing year.

The signs of capital punishment's impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month. While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it's easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the "worst of the worst." But that's wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year's death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst - Duval County in Florida and Caddo Parish in Louisiana - local prosecutors lost elections at least partly due to voters' concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn't the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences - increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned. A large number of Florida's 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn't executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state's decades-long delays in capital cases violated the Eighth Amendment's ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices - Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor - have expressed deep misgivings about the death penalty's repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is "highly likely that the death penalty violates the Eighth Amendment," and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

A version of this article appears in print on , on Page A20 of the New York edition with the headline: The Death Penalty, Nearing Its End. Order Reprints | Today's Paper | Subscribe

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Opinion | The Death Penalty, Nearing Its End

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Although the death penalty is still considered constitutional by the Supreme Court, Americans' appetite for this barbaric practice diminishes with each passing year. The signs of capital punishment's impending demise are all around. For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.

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Fifteen years ago, Clayton Lockett shot Stephanie Neiman twice, then watched as his friends buried her alive. Last week, Lockett was tortured to death by the state of Oklahoma. The torture was not so much the result of intention as neglect. The state knew that its chosen methods-a triple-drug cocktail-could result in a painful death. (An inmate executed earlier this year by the method was heard to say, "I feel my whole body burning.") Oklahoma couldn't care less. It executed Lockett anyway.

Over at Bloomberg View, Ramesh Ponnuru has taken the occasion to pen a column ostensibly arguing against the death penalty. But Ponnuru, evidently embarrassed to find himself in liberal company, spends most of the column dismissing the arguments of soft-headed bedfellows:

On the core issue-yes or no on capital punishment-I'm with the opponents. Better to err on the side of not taking life. The teaching of the Catholic Church, to which I belong, seems right to me: The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them. Our government almost always does.

Still, when I hear about an especially gruesome crime, like the one the Oklahoma killer committed, I can't help rooting for the death penalty. And a lot of the arguments its opponents make are unconvincing.

Take the claims of racial bias-that we execute black killers, or the killers of white victims, at disproportionate rates. Even if those disputed claims are true, they don't point toward abolition of the death penalty. Executing more white killers, or killers of black victims, would reduce any disparity just as well.

Indeed it would. But the reason we don't do this is contained within Ponnuru's inquiry: bias. When Ponnuru suggests that the way to correct for the death penalty's disproportionate use is to execute more white people, he is presenting a world in which the death penalty has neither history nor context. One merely flips the "Hey Guys, Let's Not Be Racist" switch and then the magic happens.

Those of us who cite the disproportionate application of the death penalty as a reason for outlawing it do so because we believe that a criminal-justice system is not an abstraction but a real thing, existing in a real context, with a real history. In America, the history of the criminal justice-and the death penalty-is utterly inseparable from white supremacy. During the Civil War, black soldiers were significantly more likely to be court-martialed and executed than their white counterparts. This practice continued into World War II. "African-Americans comprised 10 percent of the armed forces but accounted for almost 80 percent of the soldiers executed during the war," writes law professor Elizabeth Lutes Hillman.

In American imagination, the lynching era is generally seen as separate from capital punishment. But virtually no one was ever charged for lynching. The country refused to outlaw it. And sitting U.S. senators such as Ben Tillman and Theodore Bilbo openly called for lynching for crimes as grave as rape and as dubious as voting. Well into the 20th century, capital punishment was, as John Locke would say, lynching "coloured with the name, pretences, or forms of law."

The youngest American ever subjected to the death penalty was George Junius Stinney. It is very hard to distinguish his case from an actual lynching. At age 14, Stinney, a black boy, walked to the execution chamber

with a Bible under his arm, which he later used as a booster seat in the electric chair. Standing 5 foot 2 inches (157 cm) tall and weighing just over 90 pounds (40 kg), his size (relative to the fully grown prisoners) presented difficulties in securing him to the frame holding the electrodes. Nor did the state's adult-sized face-mask fit him; as he was hit with the first 2,400 V surge of electricity, the mask covering his face slipped off, "revealing his wide-open, tearful eyes and saliva coming from his mouth ... After two more jolts of electricity, the boy was dead."

Living with racism in America means tolerating a level of violence inflicted on the black body that we would not upon the white body. This deviation is not a random fact, but the price of living in a society with a lengthy history of considering black people as a lesser strain of humanity. When you live in such a society, the prospect of incarcerating, disenfranchising, and ultimately executing white humans at the same rate as black humans makes makes very little sense. Disproportion is the point.

The "Hey Guys, Let's Not Be Racist" switch is really "Hey Guys, Let's Pretend We Aren't American" switch or a "Hey Guys, Let's Pretend We Aren't Human Beings" switch. The death penalty-like all state actions-exists within a context constructed by humans, not gods. Humans tend to have biases, and the systems we construct often reflect those biases. Understanding this, it is worth asking whether our legal system should be in the business of doling out an ultimate punishment, one for which there can never be any correction. Citing racism in our justice system isn't mere shaming, it's a call for a humility and self-awareness, which presently evades us.

I was sad to see Ponnuru's formulation, because it so echoed the unfortunate thoughts of William F. Buckley. In 1965, Buckley debated James Baldwin at the Cambridge Union Society. That was the year John Lewis was beaten at the Edmund Pettus Bridge, and Viola Liuzzo was shot down just outside of Selma, Alabama. In that same campaign, Martin Luther King gave, arguably, his greatest speech. (" How Long? Not long. Truth forever on the scaffold. Wrong forever on the throne.") In whole swaths of the country, black people lacked the basic rights of citizenship-central among them, the right to vote. Buckley spent much of his time sneering at complaints of American racism. When the issue of the vote was raised Buckley responded by saying that the problem with Mississippi wasn't that "not enough Negroes have the vote but that too many white people are voting."

There's something revealed in the logic-in both Ponnuru and Buckley's case-that we should fix disproportion by making more white people into niggers. It is the same logic of voter-ID laws, which will surely disenfranchise huge swaths of white voters, for the goal of disenfranchising proportionally more black voters. I'm not sure what all that means-it's the shadow of something I haven't worked out.

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Fifteen years ago, Clayton Lockett shot Stephanie Neiman twice, then watched as his friends buried her alive. Last week, Lockett was tortured to death by the state of Oklahoma. The torture was not so much the result of intention as neglect. The state knew that its chosen methods-a triple-drug cocktail-could result in a painful death.