Rape, Race, and Capital Punishment: An Enduring Cultural Legacy of Lethal Vengeance?

• Author: Beth Bjerregaard,Sondra J. Fogel,Wesley G. Jennings,John K. Cochran,M. Dwayne Smith,Christopher J. Marier
• DOI: 10.1177/2153368717702700
• Published date: 01 October 2019
• Date: 01 October 2019
• Subject Matter: Articles

Article

Rape, Race, and Capital

Punishment: An Enduring

Cultural Legacy of Lethal

Vengeance?

John K. Cochran

1

, Christopher J. Marier

1

,

Wesley G. Jennings

1

, M. Dwayne Smith

1

,

Beth Bjerregaard

2

and Sondra J. Fogel

3

Abstract

Historical analyses of southern statutes (i.e., Slave Codes, Black Codes, “Jim Crow,”

etc.) and their enforcement reveals evidence of an enduring cultural legacy prescribing

lethal vengeance to Blacks who violate White sensibilities, especially for Black males

accused of sexually assaulting White females. Using a population of official data on

capital murder trials in North Carolina (1977–2009), this study examines the degree

to which this cultural legacy endures to the present by examining the joint effects of

offender’s race and rape/sexual assault on the capital sentencing outcomes of capital

murder trial involving White female victims. Our findings reveal support for the

continuing endurance of this cultural legacy of lethal vengeance.

Keywords

race and sentencing, race and courts, race and death penalty, race-of-the-victim

effects, homicides, victimization, violence against women

Special legal codes to control the behavior of slaves and preserve White hegemony

were originally the carryover of British common law doctrines relating to the villei-

nage system of Feudal England (see Higginbotham 1978). Under this system workers

1

Department of Criminology, University of South Florida, Tampa, FL, USA

2

Department of Criminal Justice, University of North Carolina, Charlotte, NC, USA

3

School of Social Work, University of South Florida, Tampa, FL, USA

Corresponding Author:

John K. Cochran, Department of Criminology, University of South Florida, 4202 E. Fowler Ave., SOC107,

Tampa, FL33620, USA.

Email: cochran@usf.edu

Race and Justice

2019, Vol. 9(4) 383-406

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DOI: 10.1177/2153368717702700

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were bound to the land and owed the manor the fruits of their labor; such common law

traditions sanctioned the treatment of indentured servants, apprentices and children

and were easily applied to slaves in the colonies as well. The first such “Slave Code”

in the New World originated in the British colony of Barbados and served as the model

for South Carolina, in turn, these codes quickly became the model of other southern

Slave Codes throughout the colonies (Stampp, 1956). With the founding of the United

States, colonial Slave Codes became the basis for state statutes that continued this

practice of de jure racial discrimination. In most southern states, these antebellum

Slave Codes extended their reached onto free Blacks as well (Shofner, 1977; Vandiver,

Giacopassi, & Curley, 2003) and were even evident in the Black Codes and Jim Crow

laws of the post–civil war reconstruction era, despite the undefined prohibitions

against the unequal protection of the law in the 14th Amendment to the Constitution.

Whether a Slave Code, a Black Code, or Jim Crow, these laws permitted and

prescribed the unequal, and often harsh, treatment of Blacks relative to Whites. These

codes served to preserve White hegemony by regulating even the most mundane

behaviors of slaves and free Blacks (Dodd, 1918; Flanigan, 1974; Imes, 1919;

Paternoster, 1991). Some of these codes criminalized the behaviors of Blacks, which if

engaged in by Whites were not considered crimes. Importantly, these codes provided

for considerably more severe criminal sanctions, including death, for crimes com-

mitted by Blacks than if the same crimes were committed by Whites. These punish-

ments were especially harsh if the alleged crime was against a White, particularly a

White female (Bardaglio, 1994). Often these sanctions were doled out by the slave

owner without the benefit of a criminal trial, or, where a formal legal process was

required by law, the process was a mere formality (Flanigan, 1974). During the

reconstruction/Jim Crow era, an expedited, pro forma criminal trial process served the

same purpose, and, all too often, the lynch mob replaced the slave owner.

Perhaps one of the clearest and most manifest expressions of the unequal

enforcement of these codes involves allegations of rape by Black males against White

women (Bardaglio, 1994; Dorr, 2000; Rise, 1992). For the majority of the 20th

century, rape was a capital crime, especially in the south. Research by Wolfgang and

Riedel (1973, 1975; see also Greenberg & Himmelstein, 1969), showed tremendous

evidence of racial disparity in capital sentencing outcomes, such that a sentence of

death for rape was especially likely for Black defendants with White victims. While

the U.S. Supreme Court has ruled that capital punishment for the crime of rape is an

unconstitutional violation of the 8th Amendment ban on cruel and unusual punishment

because such a punishment is disproportionate to the severity of the crime (see Coker

v. Georgia, 1977; Kennedy v. Louisiana, 2008), rape still serves as a highly salient

aggravating circumstance such that those who kill their victims during a rape-involved

homicide are eligible for the death penalty. The question before us in the present study

is whether there is evidence of an enduring cultural legacy such that Black defendants

charged and convicted of a rape-involved capital murder of White females are dis-

proportionately likely to be sentenced to death. To examine this question, we employ

data from official court records for the population of penalty-phase capital murder

trials involving White female victims (N¼312) in the state of North Carolina

384 Race and Justice 9(4)