This year is the fiftieth anniversary of the Supreme Court’s decision in Furman v. Georgia halting capital punishment and sweeping the death rows of America clean of some 600 plus prisoners awaiting execution. The court based its ruling on a finding of “legal arbitrariness” in violation of the cruel and unusual punishment clause of the Eighth Amendment: in effect, the death penalty was too often implemented by capricious and discriminatory selection of the condemned.
A fierce backlash followed. Legislatures in 35 states moved to refashion laws to keep execution as an option. In response, 4 years after the 1972 decision, the Justices relegated Furman to the sidelines. Despite the about face the Justices maintained the principle that arbitrary selection violated the Constitution. The 1976 ruling assumed that the new state statutes would correct the problems that had led to unconstitutionality, serving to answer the key argument that bolstered Furman—that the death penalty would be found unacceptable if it were ever “generally and uniformly applied” to a proportion of the people eligible for the ultimate punishment.
More specifically, the three Justices who controlled the terms of the 1976 restoration of capital punishment believed that the concerns expressed in Furman would be fixed by precisely drafted laws that would ensure sentencing based on adequate information and guidance. These new laws would have purportedly advanced a system often called “guided discretion” that created a bifurcated proceeding in which jurors would receive information relevant to sentencing as well as standards to govern their decision making process. That is, after jurors found proof beyond a reasonable doubt of a crime eligible for the death penalty at the conviction phase of the trial, they would then have to carefully consider both “aggravating” and “mitigating” evidence at the sentencing phase to guide them in deciding whether to subject the defendant to the ultimate punishment.
Such information was supposed to aid the jury in exercising its discretion as to whether to impose a death penalty. The two-tired process also gave the courts an opportunity to review whether the penalty was being administered even handedly. The Justices believed that if trial courts were able to perform this task, the life-death decision would no longer be, as the leading death penalty abolitionist Anthony Amsterdam told the court, without rhyme or reason, unless the reason was race.
Decades later, many have come to realize, including Justices who once supported the fix, that the 1976 turnaround failed to end arbitrary selection. As prominent death penalty scholar Evan Mandery put it, “Randomness has not been reduced and in many respects has grown substantially worse.” The evidence of this randomness, in both the pursuit of capital charges and the decision to actually inflict capital sentences, is overwhelming. It comes from the behavior of the American people who serve as jurors and from prosecutors who increasingly avoid seeking the death penalty. In short, the Furman principle has returned with renewed force except in the decisions of today’s conservative controlled Supreme Court.
Last year, less than a dozen men were executed in the United States, a fact that only underscores the continuation of a two-decade long trend of a decline of the death penalty. Officials have increasingly acknowledged fears of wrongful convictions and, as a result, more readily rely on life-without-parole sentences. More states—11 since 2007—have abandoned capital punishment. Thirty-five states haven’t executed anyone in the last 10 years.
Take California. It has more than 700 prisoners on death row, the largest such population in the country. Yet the state has only executed 13 people since 1976 and has no present plans for a change in policy.
Despite these developments on the ground, the Supreme Court’s conservative majority has turned a blind eye, not only declining to resolve significant legal issues but also showing a consistent hostility to any restriction of the death penalty. The Justices permitted the Trump administration to execute 13 federal inmates in its waning days, breaking a lapse of 17 years in what critics saw as a lethal election-year stunt. The way the court acted in these death row cases was startling—overturning lower-court rulings in favor of prisoners and stays of execution in summary fashion without full consideration of the facts of each case.
When Michael Meltsner, one of the author’s of this essay, first litigated the constitutionality of capital punishment in the 1960s, defenders of the practice claimed that the penalty deterred violent crime more significantly than a life sentence. They also warned that public safety would be impacted by abolishing the death penalty, and that all we had to do was execute “the worst of the worst.”
Today, these arguments ring hollow. The U.S. has between 15,000 and 24,000 homicides a year, but sends only a handful of those convicted of killing to death. Given the sporadic and random implemention of the death penalty, it is simply impossible to make a rational argument that capital punishment dissuades people from violence or indeed advances any legitimate social policy.
Given the serious mental illness of many of those who have been executed, the tagline “worst of the worst” might more accurately be replaced by “sickest of the sick.” In short, the few who are put to death should actually be considered sacrifices to judges and politicians inability to reject a practice that has been rejected in fact, but not in law. The death penalty remains on the books, even if it is far beyond time to turn the page—to move on from a punishment that, while deeply rooted in our history, has never proven worthy of retention.
For centuries, societies across the globe practiced human sacrifice, picking out a few victims to kill to advance a variety of societal goals. The killings were often said to propitiate the Gods, to ensure good weather for crops, or to keep a royal personage comforted with his servants in the hereafter. But even these common explanations barely scratch the surface of the justifications usually offered today when sentencing people to death. As with the few we execute today— who are overwhelmingly poor, people of color, and the mentally compromised— the victims of human sacrifices were almost always of low social status. As the the Washington Post explained, “human sacrifice was used by social elites to terrorize underclasses, punish disobedience and display authority.”
How different is our own version of taking lives? Putting aside the question of actual innocence, the convicted criminals we execute today come from vulnerable and marginalized communities, the disadvantaged and disempowered; as importantly, the few killed seem to be the unlucky losers in a game of chance. Most often, a roll of the dice assigns the condemned to unprepared lawyers in the very few counties and minority of states that still aggressively pursue capital punishment.
Now, after thousands of cases, and millions if not billions of dollars spent on prosecuting capital punishment cases at trial, defending convictions on appeal, and maintaining death row dungeons rather than dollars devoted to improving those portions of the criminal justice system that deal with the day-to-day concerns of most Americans, it’s obvious that the flaws in the death sentencing system that led to Furman are still with us. We seem to have merely substituted a gurney for a stone altar.
You don’t have to be a statistician to realize that in a system that executes a tiny proportion of the eligible, selection will always be arbitrary. Indeed, now that more states have ended capital punishment and fewer death sentences are even sought in the states that retain it, executions resemble more and more the sacrificial practices of our remote ancestors. Furman found a grievous error when some persons are sentenced to death and others not for what amounts to the same crime. But it is still true that race, class, geography, and lawyer competence determine who lives and who dies.
The selection process we are left with operates in a troubled judicial landscape. Courts are no longer required to compare cases to ensure even handed decisions. Hyper-technical rules often block consideration of seemingly legitimate claims. High Court decisions increasingly permit troublesome executions that go both unreviewed and unexplained.
The American way of sentencing the convicted to death is rare and random—but also bureaucratic, costly, and governed by often indecipherably complex rules. When it cannot even produce the results its supporters seek, time has come for it to go. We cannot wait a moment longer.
