The District of Columbia carried out its last execution in 1957. That April, it put Robert Eugene Carter to death for killing a police officer as Carter tried to flee a robbery he had just committed.
At the time, the law in the nation’s capital made the death penalty mandatory for first-degree murders of the kind Carter committed. He died in the electric chair.
If Donald Trump has his way it won’t be long before Washington DC sees a return of capital punishment. During a cabinet meeting on Tuesday, the president promised to bring it back.
He said: “If somebody kills somebody in the capital, Washington DC, we’re going to be seeking the death penalty.” This comment was almost an aside in the midst of a conversation about selling government buildings to private real estate developers who, he said, would get rich when he finished making Washington a “crime free city”.
“By the way, speaking of that,” the president continued as if his memory was triggered by talk of ridding Washington of crime. “Anybody murders something in the capital, capital punishment, capital, capital punishment,” he repeated as if soullessly enjoying the wordplay on a deadly serious subject.
“That’s a very strong preventative,” he claimed, ignoring the mountain of evidence pointing to the fact that the death penalty is not an effective deterrent. He mused that the country might not be “ready for it”, but that asserted “we have no choice”.
And with typical Trump flourish he insisted that “everybody that’s heard it agrees with it”, though it was not clear what he was referencing, capital punishment or its supposed preventive power.
The president’s promise that all murderers would get the death penalty in DC runs afoul of longstanding supreme court precedent that says death sentences can never be mandatory. Moreover, it plays into the complex racial politics that always attaches to the uses of capital punishment in the United States.
Before saying more about both of those issues, let’s look at the history of the death penalty in the District of Columbia. According to the Death Penalty Information Center: “The first recorded execution in Washington, D.C. was the hanging of James McGirk in 1802.”
McGirk killed his pregnant wife and the twins she was carrying. His Irish heritage was at the forefront of public discussion of his crime and the way it should be punished. One newspaper highlighted the fact that McGirk “was neither born nor educated in America”. It asked: “How long can we expect our native youth to remain uncontaminated”?
In 1865, Mary Surratt, who conspired to assassinate president Abraham Lincoln, was hanged in the District. And another presidential assassin, Charles Guiteau, was put to death there in 1882 for killing president James Garfield.
All told, from McGirk to Carter, 118 people were executed in Washington by civilian or military authorities. Not surprisingly, race played a key role in that history.
After 1962, the death penalty was no longer a mandatory punishment for murder in the city. And in 1981, the city council abolished capital punishment entirely, a decision ratified by the votes a decade later.
But the preference of the voters does not seem to trouble the president. In this case, he doesn’t need to worry about that because of DC’s status and the federal government’s oversight of it.
That means that the US attorney’s office, under the supervision of the Department of Justice, not local officials, would be in charge of turning the president’s plan into reality. And no one should be surprised that the president wants the death penalty to be part of his plan to rid Washington DC of crime.
On the first day of his second term, he issued an executive order directing the attorney general to “pursue the death penalty for all crimes of a severity demanding its use”.
Does that mean all murders and all murderers?
In 1976, the supreme court made clear that it did not think so. The court struck down a North Carolina statute that made the death penalty mandatory for first-degree murder.
What justice Potter Stewart said in that case is particularly instructive as we consider what Trump discussed on Tuesday.
“The history of mandatory death penalty statutes in the United States,” Stewart wrote, “reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society – jury determinations and legislative enactment – both point conclusively to the repudiation of automatic death sentences.”
Stewart explained: “At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict … Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes.”
And he highlighted the District of Columbia’s 1962 rejection of mandatory death sentences as an important indicator of “contemporary standards of decency”.
Because of its severity and gravity, death sentencing must, Stewart said, “allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death”.
Respect for such constitutional niceties has never been the president’s strong suit, especially when it would get in the way of a policy he wants to pursue.
Beyond its patently unconstitutionality, restoring capital punishment for everyone who commits murder in Washington DC would mean bringing back one of this country’s most racist practices to a place where more than 40% of the residents are Black people.
We know that race plays a role at every stage of the capital punishment process. Black defendants are more likely to be charged with capital offenses and to receive death sentences than are white people, especially when the people murdered were themselves white.
But the racial effects don’t stop there. Black people sentenced to death are more likely to be chosen for execution and to have their executions botched.
Trump may not know those particulars, but he very likely knows how the death penalty sits with many Black people. As the criminologist James Unnever and his colleagues note: “There is a clear racial divide in support for the death penalty, with whites favoring and Blacks opposing this sanction. This divide has persisted for decades and remains statistically and substantively significant even when controls are introduced for the known correlates of death penalty attitudes.
“A meaningful portion of this chasm is explained, however, by racism, with whites who manifest animus to blacks being more likely to embrace the lethal punishment of offenders.”
If federalizing law enforcement and putting armed soldiers on the streets of Washington DC sent a powerful signal of white dominance in a city with a substantial Black population, Trump’s words about the death penalty reinforced that message. When the time comes, it will be up to the courts to defend the supreme court’s precedent on mandatory death sentences and to put a stop to the racial politics that restoring it to DC would represent.
In the meantime, it is well worth remembering that the last person executed there was a 28-year-old Black man who killed a white police officer and was subject to a mandatory death penalty.
Austin Sarat, William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author or editor of more than 100 books, including Gruesome Spectacles: Botched Executions and America’s Death Penalty
