Capital Punishment and the Racial Execution of Justice

Guard releases handcuffs on prisoner (Shutterstock)

Wendell Griffen, an African American judge from Arkansas, is battling what he refers to as the state’s “white power structure.” The case centers on Griffen’s struggle to regain his right to oversee capital punishment cases.In 2017, Arkansas Governor Asa Hutchison planned to end the state’s decade long hiatus from executing incarcerated people with a record breaking proposal to rush through eight executions in a 10-day span. On Good Friday, the pharmaceutical giant McKesson Medical-Surgical complicated Hutchison’s plan with a last-minute lawsuit. The suit claimed Arkansas purchased the company’s anesthetic under the false auspices of treating the incarcerated and then repurposed it for use in a fatal drug cocktail used in lethal injections. McKesson sought a temporary restraining order to halt the use of their anesthesia in the lethal injection in order to allow time for the company to bring their case to court.

The case ended up on the desk of Judge Griffen. Earlier that day, Griffen had exercised his freedom of speech by joining a death penalty protest. After Judge Griffen received and reviewed the McKesson lawsuit, he granted their motion. He issued a temporary restraining order to halt using the anesthesia in executions on the grounds that Arkansas’ Department of Corrections potentially breached the property rights of the company.

Griffen pastors a church with a liberationist edge and his congregation had previously planned a prayer vigil outside of the Governor’s mansion to commemorate Jesus’ crucifixion. At the vigil, Griffen emulated the crucified Christ in the present tense by strapping himself to a mat and taking the form of a victim of lethal injection. In a state whose incarceration rate ranks fourth highest in the nation — with a 4 to 1 disparity between Black and white incarceration — it seems Black Christians wanted Arkansans to imagine the Christ they claimed as the Black men they execute. Judge Griffen laid there figuratively dead with a Bible on his chest for 90 minutes.Officials in Arkansas were enraged. Three Arkansas Supreme Court Justices coordinated to strike back at Judge Griffen with a vengeance. They began inappropriately engaging with the director of the Judicial Discipline and Disability Commission (JDCC) concerning ways to circumvent Griffen’s ruling. In a stunning maneuver that broke all precedents of due process, Arkansas’ Supreme Court threw out Griffen’s ruling, immediately removed Griffen from all death penalty cases, and referred him to the JDCC. In this whirlwind, they summarily stripped Judge Griffen of his duly elected responsibilities and left him fighting for his judicial career against a stacked deck.The truth was Judge Griffen did nothing illegal nor had he participated in activity that would recommend he recuse himself from McKesson’s property rights claim. But, judges are accountable to discern independently and impartially what the law dictates and the appearance of Griffen at the protests provided the cover for a political hit. The problem for Arkansas was Griffen has a track record of issuing verdicts that go against his own personal convictions when his convictions and the letters of the law fail to harmonize. And this made hearing his case before the Commission a potential embarrassment to those seeking to put Griffen in check.

It was no coincidence that when the McKesson case was reissued following the Supreme Court’s annulling of Griffen’s ruling, a second judge granted McKesson’s motion to issue a temporary restraining order, thus vindicating Griffen’s verdict. Complicating the matter, the same day as Judge Griffen’s removal, a white judge who led cops on a high speed chase pleaded guilty to drunk driving and was only briefly suspended before he was restored to the bench, which included overseeing DWI cases. The case against judge Griffen proved disastrous for both Arkansas’ Supreme Court and the JDCC. The JDCC director recused himself from the case. The Commission failed to bring the case to trial within the legal time limit of 18 months, and, after over two years had passed, the case was forced out.

Yet, this is not a story about good overcoming evil in the fight for racial justice. The truth is much more complicated and tragic than that. The truth is Judge Griffen’s right to hear capital punishment cases has yet to be restored despite the failures to prosecute him. The truth is that after two judges placed temporary restraining orders on Arkansas’ lethal cocktail due to the McKesson lawsuit, the Arkansas Supreme Court overturned the hold and expedited the executions of four of the eight incarcerated men. In a state where only 15 percent of the population is African American, 3 out of the 4 executed were Black and 3 of the 4 who were not executed were white. Although Governor Hutchison failed to get the eight executions he sought, he still broke modern capital punishment records with 4 executions in one week.

Since Judge Griffen’s lifetime ban on overseeing death penalty cases, 17 capital punishment cases were issued to other judges. His experiences and the struggle for justice illuminates the racial lines of America’s judiciary. His story also reveals how political systems harmonize to mete out racialized inequalities without a sense of shame. Black Americans winning elected office provides no guarantee of administering the full authority of their office since racism resides within the institutions they serve. In the end, the tragic irony is the very institution that targets a Black Judge for a supposed bias delivers extraordinarily racist inequalities without remorse every day.

About the Author

Joel Edward Goza is a Contributing Writer for The North Star and the author of America’s Unholy Ghosts: The Racist Roots of Our Faith and Politics, which received a Starred Review from Publishers Weekly. Joel writes from Houston’s 5th Ward Community.