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Struck by Lightning: Capital Punishment in the U.S.

By       Message WILLIAM FISHER       (Page 1 of 4 pages)     Permalink    (# of views)   2 comments

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It couldn't have taken more than a two-minute visit to the web site of The Innocence Project to persuade most rational adults that the death penalty is not only cruel and unusual, but a costly and ineffective way to deter murder.

That's the gist of a new report from the Death Penalty Information Center (DPIC). It's entitled "Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976."
Richard Dieter, DPIC's executive director, is the report's author.

For those whose memories may be a bit hazy on this subject, the U.S. did have a 35-year moratorium on executions from 1972 to 1976, when
the United States Supreme Court approved the reinstatement of the death penalty.

The moratorium came about in a 1972 court case, Furman v. Georgia, in which the United States Supreme Court decision that ruled on the
requirement for a degree of consistency in the application of the death
penalty. The case led to a de facto moratorium on capital punishment
throughout the United States,

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The moratorium came to an end when Gregg v. Georgia was decided in
1976. The Supreme Court consolidated Jackson v. Georgia and Branch v.
Texas with the Furman decision, and thus also invalidated the death penalty
for rape.

Gregg v. Georgia, et al reaffirmed the United States Supreme Court's
acceptance of the use of the death penalty in the United States, upholding, in
particular, the death sentence imposed on Troy Leon Gregg. Referred to by a
leading scholar as the July 2 Cases and elsewhere referred to by the lead
case Gregg, the Supreme Court set forth the two main features that capital
sentencing procedures must employ in order to comport with the Eighth
Amendment bar on "cruel and unusual punishments." The decision
essentially overturned the de facto moratorium on the death penalty imposed
by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972). 

The report notes that by the end of the 1960s, all but 10 states had laws authorizing capital punishment, but strong pressure by forces opposed to the death penalty resulted in an unofficial moratorium on executions for several years, with the last execution during this period taking place in 1967. Prior to this, an average of 130 executions per year occurred.  

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From 1930, the first year for which statistics are readily available from the Bureau of Justice Statistics, to 1967, 3,859 persons were executed under ciivil (that is, nonmilitary) jurisdiction in the United States. During this period of  nearly half a century, over half (54%) of those executed were black, 45 percent were white, and the remaining one percent were members of other racial groups -- American Indians (a total of 19 executed from 1930-1967), Filipino (13), Chinese (8), and Japanese (2), the report says, adding:

The vast majority of those executed were men; 32 women were executed from 1930 to 1967. Three out of five executions during that period took place in the southern U.S. The state of Georgia had the highest number of executions during the period, totaling 366 -- more than nine percent of the national total. Texas followed with 297 executions; New York with 329; California with 292; and North Caroline with 263. Most executions -- 3,334 of 3,859 -- were for the crime of murder; 455 prisoners (12%) -- ninety
percent of them black -- were executed for rape; 70 prisoners were executed
for other offenses.

Athough the death penalty had earlier been held unconstitutional because of
its arbitrary and unpredictable application, the Court was willing to sanction
new systems that states had proposed to make capital punishment less like
"being struck by lightning" and more like retribution for only the "worst of
the worst" offenders.

The Court also deferred to the states' judgment that the death penalty served
the goals of retribution and deterrence.

After three and a half decades of experience under these revised statutes, the
randomness of the system continues. Many of the country's constitutional
experts and prominent legal organizations have concluded that effective
reform is impossible and the practice should be ended.    In polls, jury
verdicts and state legislative action, there is evidence of the American
people's growing frustration with the death penalty.  A majority of the nine
Justices who served on the Supreme Court in 1976 when the death penalty
was approved eventually concluded the experiment had failed.

Nonetheless, in 1976, the newly reformed death penalty was allowed to
resume. However, it has proved unworkable in practice.    Keeping it in
place, or attempting still more reform, would be enormously expensive, with
little chance of improvement. The constitution requires fairness not
just in lofty words, but also in daily practice. On that score, the death penalty
has missed the mark.

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Four states have abolished the death penalty in the past four years, and
nationwide executions and death sentences have been cut in half since 2000.
A review of state death penalty practices exposes a system in which an
unpredictable few cases result in executions from among thousands of
eligible cases.  Race, geography and the size of a county's budget play a
major role in who receives the ultimate punishment.Many cases thought to
embody the worst crimes and defendants are overturned on appeal and then
assessed very differently the second time around at retrial.  Even these
reversals depend significantly on the quality of the lawyers assigned and on
who appointed the appellate judges reviewing the cases.        

In such a haphazard process, the rationales of deterrence and retribution
make little sense.

In 1976, the newly reformed death penalty was allowed to resume.      
However, it has proved unworkable in practice.    Keeping it in place, or
attempting still more reform, would be enormously expensive, with little
chance of improvement.      The constitution requires fairness not just in
lofty words, but also in daily practice. On that score, the death penalty has
missed the mark.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)
 

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