{"id":50869,"date":"2026-07-02T22:24:35","date_gmt":"2026-07-02T22:24:35","guid":{"rendered":"https:\/\/naijaglobalnews.org\/?p=50869"},"modified":"2026-07-02T22:24:35","modified_gmt":"2026-07-02T22:24:35","slug":"the-scourge-of-the-death-penalty-hangs-over-america-austin-sarat","status":"publish","type":"post","link":"https:\/\/naijaglobalnews.org\/?p=50869","title":{"rendered":"The scourge of the death penalty hangs over America | Austin Sarat"},"content":{"rendered":"

\n<\/p>\n

T<\/span>hursday 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.<\/p>\n

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.<\/p>\n

What has happened since shows the hollowness of that hope. History has not and will not look kindly on the court\u2019s misbegotten effort.<\/p>\n

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.<\/p>\n

Opponents of the death penalty celebrated, believing that it would not survive the setback the court delivered. One, Professor Hugo Adam Bedau, predicted: \u201cWe will not see another execution in this nation in this century.\u201d<\/p>\n

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: \u201cThere will no longer be any more capital punishment in the United States.\u201d<\/p>\n

But that celebration was both premature and unwarranted. Bedau, Greenberg and others should have known better.<\/p>\n

As the historian David Oshinsky explained to an interviewer at the University of Texas, where he teaches: \u201cThe justices were so divided that each one wrote a different opinion.\u201d In his view, \u201cthe two \u2018pivotal\u2019 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.\u201d<\/p>\n

While abolitionists celebrated, Oshinsky observes: \u201cCapital punishment advocates saw an opening in the decision. Furman \u2026 did not outlaw capital punishment. It said if \u2018you want it, you have to rewrite your laws.\u2019\u201d<\/p>\n

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.<\/p>\n

Others, Oshinsky suggests, took a middle ground, \u201cproviding 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\u201d.<\/p>\n

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.<\/p>\n

When the court announced its rulings, abolitionists\u2019 hopes were dashed. As justice Potter Stewart, now writing for a seven-judge majority, argued: \u201cIt is now evident that a large proportion of American society continues to regard \u2026 [the death penalty] as an appropriate and necessary criminal sanction.<\/p>\n

\u201cWe now hold,\u201d Stewart added, \u201cthat the punishment of death does not invariably violate the Constitution.\u201d 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.<\/p>\n

In fact, as the Atlantic\u2019s Elizabeth Bruenig argued four years ago, the court\u2019s interpretation of the eighth amendment\u2019s prohibition on cruel and unusual punishment has led to the amendment\u2019s \u201cdisintegration\u201d and \u201cdestruction\u201d.<\/p>\n

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 \u201cunduly harsh and unworkably rigid\u201d.<\/p>\n

At the same time, it ruled that statutes which provided what it called \u201cguided discretion\u201d were enough to mitigate the problems identified in Furman. Georgia, in Stewart\u2019s view, now \u201csuitably directed and limited\u201d jury discretion \u201cso as to minimize the risk of wholly arbitrary and capricious action\u201d.<\/p>\n

\u201cIt is possible,\u201d Stewart confidently asserted, \u201cto construct capital sentencing systems capable of meeting Furman\u2019s<\/em> constitutional concerns.\u201d He and his colleagues imagined that a \u201cbifurcated proceeding where the trial and sentencing are conducted separately\u201d, while \u201cspecific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence\u2019s circumstances with other similar cases\u201d would ensure that \u201cthe jury\u2019s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence.\u201d<\/p>\n

The court was satisfied that what they had approved would ensure the death penalty\u2019s \u201cjudicious and careful use\u201d.<\/p>\n

Over the last five decades, we have learned a hard lesson: all that was pure fantasy.<\/p>\n

We know that since 1973, \u201c202 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row,\u201d per the Death Penalty Information Center. In addition, a study conducted in 2014 \u201cestimated that at least 4% of those sentenced to death are innocent\u201d, the DPIC reported.<\/p>\n

It is also clear that the court\u2019s \u201cguided discretion\u201d has not ended arbitrary and discriminatory treatment. People of color still fare badly at every stage in America\u2019s post-Gregg death penalty system and are even more likely to have their executions botched than are white people.<\/p>\n

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<\/p>\n

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\u2019s life in their hands. It is a noble aspiration, but one that sadly can\u2019t be realized in any human system of justice.<\/p>\n

Writing in 1994, Justice Harry Blackmun exposed the myth that has sustained the US\u2019s death penalty since Gregg. As he explained: \u201cOnce 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 \u2026 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.\u201d<\/p>\n

Blackmun went on to say: \u201cThe decision whether a human being should live or die is so inherently subjective \u2013 rife with all of life\u2019s understandings, experiences, prejudices, and passions \u2013 that it inevitably defies the rationality and consistency required by the constitution.\u201d<\/p>\n

For him and for me, it is clear that no set of \u201cprocedural rules or verbal formulas\u201d can ever \u201cprovide consistency, fairness, and reliability in a capital sentencing scheme\u201d. The last half century has only proven that, in Blackmun\u2019s words, the effort is \u201cdoomed to failure \u2026 and the death penalty \u2013 must be abandoned altogether\u201d.<\/p>\n