A new arti­cle by Cornell Law School Professor John Blume (pic­tured) and Lindsey Vann of Justice 360 ana­lyzes South Carolina​’s expe­ri­ence with the death penal­ty over the last 40 years and argues that cap­i­tal pun­ish­ment in the Palmetto State con­tin­ues to exhib­it the same arbi­trary and dis­crim­i­na­to­ry fea­tures that led the U.S. Supreme Court to strike down the death penal­ty in 1972. Using Justice Stephen Breyer’s dis­sent in Glossip v. Gross as a guide, Blume and Vann point to unre­li­a­bil­i­ty, arbi­trari­ness, and the declin­ing impo­si­tion of cap­i­tal pun­ish­ment as evi­dence that the death penal­ty is cru­el and unusu­al as applied in South Carolina. Fewer than a quar­ter (24%) of the state’s death sen­tences imposed since 1976 have result­ed in exe­cu­tion, while more than half (52%) have been over­turned. Following rever­sal, more than 90% of the for­mer death cas­es (47% of all South Carolina death sen­tences) were sub­se­quent­ly resolved with a non-cap­i­tal sen­tence or acquit­tal. Three death row inmates have been ful­ly exon­er­at­ed, and three more have been released based upon evi­dence sug­gest­ing inno­cence. Blume and Vann argue that race and gen­der of vic­tim effects demon­strate the arbi­trari­ness of the state’s death penal­ty. While African Americans are vic­tims of 59% of the state’s homi­cides, 81% of South Carolina death sen­tences have been imposed for the mur­der of a white vic­tim. Although white females con­sti­tute only 11% of mur­der vic­tims, their cas­es account for 42% of South Carolina death sen­tences. By con­trast, 48% of South Carolina mur­der vic­tims are black males, but these cas­es account for only 8% of the state’s death sen­tences. The authors also note that South Carolina has expe­ri­enced a dra­mat­ic decline in death sen­tences that can­not be explained by a change in mur­der rates. In 1986, the state’s peak death sen­tenc­ing year, 4.5 death sen­tences were imposed for every 100 mur­ders in the state. Since 2008, the rate has been one-tenth that, with 0.45 death sen­tences per 100 mur­ders. They con­clude, ​“In Gregg, the Court allowed cap­i­tal pun­ish­ment to resume based on its con­fi­dence that post-Furman improve­ments to state death penal­ty sys­tems had elim­i­nat­ed that arbi­trari­ness. That con­fi­dence, how­ev­er, was mis­placed. The death penal­ty in South Carolina is still arbi­trary after all these years.”

(J. Blume and L. Vann, ​“Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Or Still Arbitrary after All These Years),” Cornell Law School Legal Studies Research Paper Series, February 19, 2016.) See Studies, Arbitrariness and Race.

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