40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death Penalty

The exe­cu­tion of John Conner on July 15 end­ed a two-month peri­od with­out exe­cu­tions in the United States, the longest such peri­od in the coun­try since 2007 – 2008. A range of state-spe­cif­ic issues have con­tributed to this stop­page, includ­ing ques­tions about the con­sti­tu­tion­al­i­ty of state death penal­ty prac­tices, prob­lems relat­ing to lethal injec­tion drugs and state exe­cu­tion pro­to­cols, and the fall­out from botched executions. 

In an arti­cle for The American Prospect, Professor Frank Baumgartner out­lines research show­ing that the death penal­ty, as applied today, remains error-prone, racial­ly biased, and arbi­trar­i­ly applied. Forty years after the U.S. Supreme Court’s deci­sion in Gregg v. Georgia allowed exe­cu­tions to resume, Baumgartner argues, the death penal­ty con­tin­ues to fall short of meet­ing the con­sti­tu­tion­al require­ments set forth by the Court. Baumgartner high­lights stud­ies that have found that the approx­i­mate­ly one per­cent of death-eli­gi­ble homi­cides that have result­ed in exe­cu­tions are not nec­es­sar­i­ly the worst crimes, but rather, the crimes that hap­pened to occur in juris­dic­tions that are prone to using the death penal­ty or that involved a white victim. 

As Chris Geidner explains in BuzzFeed, only three states — Georgia, Missouri, and Texas — have car­ried out any exe­cu­tions since January because oth­er states are grap­pling with legal chal­lenges to their sen­tenc­ing pro­ce­dures and lethal injec­tion pro­to­cols, inabil­i­ty to obtain lethal injec­tion drugs, or some­times a com­bi­na­tion of several issues.

Challenges to the con­sti­tu­tion­al­i­ty of death penal­ty prac­tices in Florida, Alabama, and Delaware — where non-unan­i­mous jury rec­om­men­da­tions for death have account­ed for more than 20% of the nation’s death sen­tences — have brought exe­cu­tions to a halt in those states and statutes in Nebraska and Montana may also face con­sti­tu­tion­al chal­lenges for the role judges play in impos­ing death sen­tences in those states. The fall­out from botched exe­cu­tions have halt­ed exe­cu­tions in Arizona, Ohio, and Oklahoma. And guber­na­to­r­i­al mora­to­ria and a vari­ety of lethal injec­tion issues have also con­tributed to the drop in executions. 

Geidner calls the sit­u­a­tion ​“unprece­dent­ed,” and pre­dicts that the num­ber of exe­cu­tions in the sec­ond half of 2016 will be even low­er than the 14 car­ried out in the first half.