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A Forty-Year Retrospective of the Death Penalty

by Seth Miller, Misty Thomas

It was the spring of 2007 when this magazine last devoted an issue exclusively to the death penalty, and, quite presciently, Section Chair Stephen Hanlon posed in his introduction: “What will an issue of Human Rights look like ten years from now?” One decade later, we think it’s fair to answer that things are profoundly different, yet eerily similar.

The distinguished authors contributing to this current issue make clear that the capi­tal punishment laws and practices in the United States have changed significantly in the past several years, but many of the characteristics that have long concerned death pen­alty observers and practitioners remain. The death penalty is still permitted by statute in 30 states, the federal government, and the U.S. military—despite declining public sup­port, new death sentences, and executions in the last decade.

Without a doubt, the landscape of the current American death penalty is unique, so it makes sense that a magazine like Human Rights would again examine this important issue and take a hard look at how this area of law continues to evolve, or arguably, stag­nate. In addition, now is a particularly appropriate time for our profession to reflect on the state of capital punishment, as it has been 40 years since the U.S. Supreme Court reinstated it in the 1976 Gregg v. Georgia decision.

In 1972, in Furman v. Georgia, the Court suspended the practice of capital punish­ment nationwide as a violation of the Eighth and Fourteenth Amendments, finding that the imposition of the death penalty was frequently arbitrary and oftentimes dis­criminatory. However, the Court in Furman did not find that the death penalty was unconstitutional per se. As a result, it left open the possibility of addressing the issues it identified—and many states, including Georgia, quickly passed new legislation that sought to address Furman’s concerns about arbitrariness in their capital punishment systems. That is how Troy Gregg’s death sentence, and Georgia’s newly designed death penalty scheme, ended up under review by the Court within four short years. In Gregg, the Court concluded that the new sentencing procedures sufficiently addressed the con­cern that individuals “were being condemned to death capriciously and arbitrarily,” and opened the door for capital punishment to resume.

Much has transpired since Gregg. Seven state legislatures have abolished their death penalty statutes, two states’ high courts have held capital punishment unconstitutional, and four states have moratoria in place. The U.S. Supreme Court ruled that juveniles and those with intellectual disability should be barred from execution, and representa­tion has improved in some jurisdictions with the creation of specialized capital defense units, along with other significant legislative and judicial changes to law. However, the system remains far from perfect. Arguably, one of the most striking illustrations of its shortcomings is the fact that 156 death row prisoners have been exonerated since 1976, and that these innocent men and women spent an average of 11.3 years on death row. In this issue, John Blume drills down on one aspect of the multifaceted issue of innocence in capital cases as he explains how intellectual disability—a condition still prevalent on death rows across the nation despite the Supreme Court’s ruling—can lead to a higher likelihood of wrongful conviction.

The fact that racial bias is still a factor in death penalty prosecutions and sentenc­ing is another highly concerning aspect of the modern death penalty. Many studies have proven that prosecutors are more likely to seek the death penalty when the victim is white than when the victim is African American. Indeed, nearly 80 percent of death row defendants who have been executed were sentenced to death for killing white vic­tims, even though in society as a whole about half of all murder victims are African American. Carol Steiker and Jordan Steiker offer a fascinating examination of the historical influence of racial injustice on death penalty practices, positing that the American South’s distinctive relationship to capital punishment, rooted in its history of slavery and racial injustice, provided a significant impetus for the Court’s intervention in Furman. The issue of race in the administration of the death penalty is also addressed by Gregory Parks and Judge Andre Davis in their piece highlighting the need for judges to confront implicit bias in capital cases.

A third important issue is the continued geographic disparity and arbitrariness in the administration of capital punishment. This has been a long-standing issue in death pen­alty debates, and it was concerns over arbitrariness that led to the Fur­man decision, and to Justice Stewart’s famous remark that “[t]hese death sentences are cruel and unusual in the same way that being struck by light­ning is cruel and unusual.” Concerns about arbitrariness remain because the new sentence statutes approved by the Court in 1976 utterly failed to remedy it. In this issue, Brandon Gar­rett offers new research findings on how “what remains of the American death penalty is concentrated in just a few dozen scattered counties.”

Together with many others, all of these issues—innocence, racial bias, arbitrariness—have long been of great concern to the American Bar Association (ABA) and its Section of Civil Rights and Social Justice, which has worked to promote fair­ness and accuracy in death penalty systems for many years. For example, as early as 1979 the ABA adopted a policy calling for improvements in the competency of counsel in capi­tal cases. The ABA’s and the Section’s work in the following years resulted in the ABA’s call for a moratorium on the death penalty in 1997, and the creation of the Death Penalty Due Process Review Project (Project) four years later, in 2001. The Project has worked tirelessly since its creation to educate the public and decision makers on how the death penalty functions in practice and to promote policies that will improve our justice system’s fairness and accuracy. To fur­ther this mission, it has conducted research in 12 states and published comprehensive assessments of those states’ death penalty systems, which have helped fuel legislation, inspire judicial review, and foster renewed public debate.

Additionally, the Project has launched innovative initiatives to tackle the timely subjects of capital clemency and severe mental illness. The Capital Clemency Resource Ini­tiative, in partnership with the ABA Death Penalty Representation Project, works to address the troubling lack of resources and expertise available to practitioners and decision mak­ers in the capital clemency process. For further insight into the histori­cal evolution of the use of executive clemency, and a thoughtful critique of some of the prevailing explanations for the relative scarcity of recent death penalty commutations, see Laura Schaefer and Michael Radelet’s piece in this issue. And for examples of gov­ernors who have used their clemency power to suspend executions state­wide, see our Human Rights Hero piece.

The Project’s Mental Illness Initia­tive works to implement the ABA’s policy calling for an exemption from the death penalty for people with severe mental illness at the time of the crime. Some of the rationales for this exemption are detailed in Richard Bonnie’s piece, which also describes the current effort underway in several states around the nation to pass legis­lation addressing this problem.

The Section, which celebrated its 50th anniversary in 2016, and the Project, which celebrated its 15th, will continue to work on the many aspects of the death penalty. Many issues have been familiar to death penalty observers for years, but some reflect more recent trends and questions sur­rounding the administration of the death penalty. Megan McCracken and Jennifer Moreno write in this issue about why they believe the lethal injection schemes in the jurisdictions that attempt to carry out executions are dysfunctional. Additionally, for­mer chief of police Gerald Galloway lays out some of the reasons why he and other public safety officials have grown increasingly concerned about the use of the death penalty in recent years.

Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question. We are thrilled that so many lead­ing voices and thinkers on the death penalty are joining us in this issue to examine the past and future of Ameri­can capital punishment. As we seem to be reaching a tipping point in the history of the death penalty, we will echo Stephen Hanlon’s query a decade ago asking “what” will be considered, by posing our own question: “Will there be a 50-year retrospective of the American death penalty?” 


Seth Miller, executive director of the Innocence Project of Florida, currently serves as chair of the ABA Death Penalty Due Process Review Project. Misty Thomas is the staff director of the ABA Death Penalty Due Process Review Project.