Thursday will mark the 50th anniversary of the rebirth of the death penalty in the United States. On 2 July 1976, the supreme court handed down decisions in five cases that laid out a formula for passing constitutional muster.
The formula the court devised and explained at length in one of those cases, Gregg v Georgia, was built on a wish and a prayer. It was a fantasy of fairness, powerful enough, its authors thought, to keep capital punishment alive and to lend it legitimacy, but it was a fantasy nonetheless.
What has happened since shows the hollowness of that hope. History has not and will not look kindly on the court’s misbegotten effort.
Four years before the 1976 quintet of court rulings, the court had halted capital punishment in a case called Furman v Georgia. It did so on the grounds that the sentencing discretion that state laws gave judges, and juries created an unacceptable risk that it would be used in an arbitrary and discriminatory manner.
Opponents of the death penalty celebrated, believing that it would not survive the setback the court delivered. One, Professor Hugo Adam Bedau, predicted: “We will not see another execution in this nation in this century.”
Another, Jack Greenberg, then a lawyer working for the Legal Defense Fund, the leading anti-death penalty group in the country, went further. After Furman, Greenberg observed: “There will no longer be any more capital punishment in the United States.”
But that celebration was both premature and unwarranted. Bedau, Greenberg and others should have known better.
As the historian David Oshinsky explained to an interviewer at the University of Texas, where he teaches: “The justices were so divided that each one wrote a different opinion.” In his view, “the two ‘pivotal’ opinions are those of Justices Potter and Bryon White. They concluded that the system of absolute jury discretion in sentencing had yielded death sentences with such infrequency and irrationality as to be cruel and unusual and therefore in violation of the eighth amendment.”
While abolitionists celebrated, Oshinsky observes: “Capital punishment advocates saw an opening in the decision. Furman … did not outlaw capital punishment. It said if ‘you want it, you have to rewrite your laws.’”
And 37 states took the opportunity to do so, trying as best they could to divine the right remedy for the problems highlighted in Furman. Some, such as North Carolina, thought that remedy would be eliminating all discretion and making a death sentence mandatory for people convicted of certain very serious offenses.
Others, Oshinsky suggests, took a middle ground, “providing a bifurcated trial, separating the guilt phase from the penalty phase, and allowing juries to hear aggravating and mitigating circumstances to determine if a convicted murderer should die”.
So the stage was set for an epic legal battle. Half a century ago, the question was whether the court would go further than it had in Furman and end the death penalty once and for all, or find one of the recently enacted sentencing schemes acceptable.
When the court announced its rulings, abolitionists’ hopes were dashed. As justice Potter Stewart, now writing for a seven-judge majority, argued: “It is now evident that a large proportion of American society continues to regard … [the death penalty] as an appropriate and necessary criminal sanction.
“We now hold,” Stewart added, “that the punishment of death does not invariably violate the Constitution.” That single sentence has stood as an ironclad barrier to judicial abolition, from then until now, and the court has turned a cold shoulder to wholesale challenges to that penalty.
In fact, as the Atlantic’s Elizabeth Bruenig argued four years ago, the court’s interpretation of the eighth amendment’s prohibition on cruel and unusual punishment has led to the amendment’s “disintegration” and “destruction”.
Meanwhile, what the supreme court decided 50 years ago remains the basis for dispensing death sentences today. It struck down mandatory death penalty laws, calling them “unduly harsh and unworkably rigid”.
At the same time, it ruled that statutes which provided what it called “guided discretion” were enough to mitigate the problems identified in Furman. Georgia, in Stewart’s view, now “suitably directed and limited” jury discretion “so as to minimize the risk of wholly arbitrary and capricious action”.
“It is possible,” Stewart confidently asserted, “to construct capital sentencing systems capable of meeting Furman’s constitutional concerns.” He and his colleagues imagined that a “bifurcated proceeding where the trial and sentencing are conducted separately”, while “specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence’s circumstances with other similar cases” would ensure that “the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence.”
The court was satisfied that what they had approved would ensure the death penalty’s “judicious and careful use”.
Over the last five decades, we have learned a hard lesson: all that was pure fantasy.
We know that since 1973, “202 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row,” per the Death Penalty Information Center. In addition, a study conducted in 2014 “estimated that at least 4% of those sentenced to death are innocent”, the DPIC reported.
It is also clear that the court’s “guided discretion” has not ended arbitrary and discriminatory treatment. People of color still fare badly at every stage in America’s post-Gregg death penalty system and are even more likely to have their executions botched than are white people.
double quotation markThe formula the court devised and explained at length in one of those cases, Gregg v Georgia, was built on a wish and a prayer
Stewart and his colleagues thought that if they could find the right formula, the people who serve on capital juries could put aside their biases and rise to the occasion when they had someone’s life in their hands. It is a noble aspiration, but one that sadly can’t be realized in any human system of justice.
Writing in 1994, Justice Harry Blackmun exposed the myth that has sustained the US’s death penalty since Gregg. As he explained: “Once the pool of death eligible defendants has been reduced, the sentencer retains the discretion to consider whatever relevant mitigating evidence the defendant chooses to offer … Over time, I have come to conclude that even this approach is unacceptable: it simply reduces, rather than eliminates, the number of people subject to arbitrary sentencing.”
Blackmun went on to say: “The decision whether a human being should live or die is so inherently subjective – rife with all of life’s understandings, experiences, prejudices, and passions – that it inevitably defies the rationality and consistency required by the constitution.”
For him and for me, it is clear that no set of “procedural rules or verbal formulas” can ever “provide consistency, fairness, and reliability in a capital sentencing scheme”. The last half century has only proven that, in Blackmun’s words, the effort is “doomed to failure … and the death penalty – must be abandoned altogether”.
Austin Sarat, associate dean of the faculty and William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty
