Forty years after the U.S. Supreme Court upheld new­ly enact­ed death penal­ty statutes in Gregg v. Georgia and two oth­er cas­es, Professor Evan J. Mandery of the John Jay College of Criminal Justice says arbi­trari­ness con­tin­ues to plague the admin­is­tra­tion of cap­i­tal pun­ish­ment across the United States. In a piece for The Marshall Project, Professor Mandery revis­its the death penal­ty in light of the con­sti­tu­tion­al defects that led the Supreme Court to over­turn exist­ing cap­i­tal pun­ish­ment statutes in Furman v. Georgia in 1972. He finds that “[w]hether one inter­prets the Furman deci­sion to have been about — indi­vid­u­al­ly or col­lec­tive­ly — exces­sive racism, a fail­ure to iden­ti­fy the ​‘worst of the worst’ among mur­der­ers, the death penalty’s spo­radic use, or sim­ple geo­graph­i­cal ran­dom­ness, the ​‘guid­ed dis­cre­tion’ statutes endorsed in Gregg haven’t remote­ly ful­filled their promise. Randomness has not been reduced and in many respects has grown sub­stan­tial­ly worse.” On the issue of ​“spo­radic use,” Professor Mandery cites stud­ies that show state-lev­el death sen­tenc­ing rates for eli­gi­ble crimes of 0.56% (Colorado) to 5.5% (California), both of which are dra­mat­i­cal­ly low­er than the 15 – 20% thresh­old that had raised con­cerns in Furman. States’ fail­ures to iden­ti­fy the ​“worth of the worst” mur­der­ers is evi­dent, he says, in both the expan­sion of death-eli­gi­ble crimes (91.1% of mur­ders in Colorado are eli­gi­ble under the state’s death penal­ty statute) and stud­ies that found no con­sis­tent dif­fer­ences in egre­gious­ness of crimes that received death sen­tences and those that did­n’t. ​“Whatever they may have writ­ten, [Justice] Stewart, Stevens and Powell’s true project in Gregg was to ratio­nal­ize the American death penal­ty and make sen­tenc­ing deci­sions turn on the sever­i­ty of a defendant’s offense instead of ran­dom fac­tors, such as where the crime occurred, or insid­i­ous fac­tors, such as race.” Mandery says. He con­cludes: ​“On the occa­sion of its 40th anniver­sary, we can deem that project a com­plete and dismal failure.” 

(E. Mandery, ​“It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed,” The Marshall Project, March 30, 2016.) See Arbitrariness and U.S. Supreme Court.

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