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| Death row cell, San Quentin State prison, California |
FIFTY YEARS AGO, American support for the death penalty was as low as it has ever been: more Americans opposed it than approved it. Violent crime in the country was low. The number of executions annually was a small fraction of the historical peak in the 1930s. These conditions set the stage for the modern era of the death penalty in the United States.
In 1972, the Supreme Court struck down the penalty as it then existed, voiding statutes in about 40 states plus the District of Columbia. Under those laws, juries had wide latitude to impose a death sentence, with no restrictions or standards to guide them. They imposed the sentence rarely yet randomly: they sentenced people to death who were convicted of relatively minor crimes like robbery as well as those found guilty of murder. When the Court struck down those laws, Justice Potter Stewart wrote that juries were imposing the death penalty “so wantonly and so freakishly” that the punishment was cruel and unusual under the Constitution’s Eighth Amendment.
Stewart and many others thought the Court had ended the death penalty in the United States, but the ruling provoked a defiant backlash: 35 states passed new death-penalty laws. In 1976, the Court struck down new state laws that made a death sentence mandatory for anyone convicted of a capital crime. But the Court upheld laws that supposedly gave discretion to juries and judges about whether to impose a death sentence, with guidance about how to exercise their discretion.
It is common to view this reinstatement of the death penalty as the height of U.S. hypocrisy about human rights, with the nation saying yes while most of the rest of the world was saying no: 140 countries have abolished it in the decades since the United States revived it. In 2015, the nation ranked fifth among countries with the death penalty in the number of prisoners it executed, behind China, Iran, Pakistan, and Saudi Arabia. But the revival was something new in American law and unprecedented in any country, a distinct alternative to abolition and retention. It was an experiment in regulation by the Supreme Court.
Decades of evidence lead to the conclusion that the experiment has failed badly—and the evidence continues to mount. Many states have imposed the death penalty in ways that discriminate by race and geography, with relatively few counties responsible for a large share of American death sentences and executions. Countless juries have been confused about how to weigh critical evidence in capital cases, like whether they should regard proof of a defendant’s intellectual disability as a reason not to impose a death sentence, or a reason to do so. Thousands of trial courts have made serious legal mistakes on their way to imposing a death sentence and have been reversed by appeals courts. Thousands of lawyers unprepared for the demanding nature of the work have given slipshod counsel to people charged with capital crimes.
Most dramatically, 156 people convicted beyond a reasonable doubt and sentenced to death have later been exonerated. One state after another has botched execution by lethal injection, leading to excruciating pain for those being executed and a growing sense that states cannot properly carry out the only form of execution that a majority of Americans have said is acceptable.
The death penalty is enormously costly. An authoritative study in California underscored the high expense of prosecuting capital cases, defending people charged with capital crimes, and housing people on death row: between 1978 and 2011, when the state executed only 13 people, the total cost of administering the death penalty there was $4.04 billion.
Of the 8,124 people sentenced to death between 1977 and 2013, according to the Justice Department, only 17 percent were executed. Six percent died by causes other than execution and 40 percent received other dispositions, including reversals of their convictions. The rest—37 percent—were in prison. In California in 2014, a federal judge found that, of the 748 inmates then on the state’s death row, more than two out of every five had been there for 20 years or longer.
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Source: Harvard Magazine, Lincoln Caplan, November-December 2016 Issue
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