EDITORIALS: New York Times: ​“An Indefensible Punishment”

The lead edi­to­r­i­al in the New York Times on September 26 called for an end to the death penal­ty because, the edi­tors said, it can­not be made to com­ply with the U.S. Constitution. The edi­toral reviewed the 35-year his­to­ry since the death penal­ty was rein­stat­ed in 1976 and con­clud­ed, ​“The death penal­ty is grotesque and immoral and should be repealed.” The paper point­ed to the recent case of Troy Davis, who was exe­cut­ed on September 21 in Georgia, and to the con­tin­u­ing arbi­trari­ness in the way the death penal­ty is applied. It also high­light­ed the ongo­ing prob­lems of racial bias, the risk of exe­cut­ing the inno­cent, and the poor qual­i­ty of rep­re­sen­ta­tion in cap­i­tal cas­es. The death penal­ty, they said, is dri­ven by polit­i­cal mis­use: ​“Politics … per­me­ates the death penal­ty, adding to chances of arbi­trary admin­is­tra­tion. Most pros­e­cu­tors in juris­dic­tions with the penal­ty are elect­ed and con­trol the deci­sion to seek the pun­ish­ment. Within the same state, dif­fer­ing pol­i­tics from coun­ty to coun­ty have led to huge dis­par­i­ties in use of the penal­ty, when the crime rates and demo­graph­ics were sim­i­lar.” Citing sta­tis­tics from DPIC’s List of Exonerations, the edi­to­r­i­al not­ed, ​“Under this hor­ri­fy­ing sys­tem, 17 inno­cent peo­ple sen­tenced to death have been exon­er­at­ed and released based on DNA evi­dence, and 112 oth­er peo­ple based on oth­er evi­dence. All but a few devel­oped nations have abol­ished the death penal­ty,” and con­clud­ed, ​“It is time Americans acknowl­edged that the death penal­ty can­not be made to com­ply with the Constitution and is in every way inde­fen­si­ble.” Read full op-ed below.

An Indefensible Punishment

When the Supreme Court rein­sti­tut­ed the death penal­ty 35 years ago, it did so pro­vi­sion­al­ly. Since then, it has sought to artic­u­late legal stan­dards for states to fol­low that would ensure the fair admin­is­tra­tion of cap­i­tal pun­ish­ment and avoid the arbi­trari­ness and dis­crim­i­na­tion that had led it to strike down all state death penal­ty statutes in 1972.

As the uncon­scionable exe­cu­tion of Troy Davis in Georgia last week under­scores, the court has failed because it is impos­si­ble to suc­ceed at this task. The death penal­ty is grotesque and immoral and should be repealed.

The court’s 1976 frame­work for admin­is­ter­ing the death penal­ty, bal­anc­ing aggra­vat­ing fac­tors like the cru­el­ty of the crime against mit­i­gat­ing ones like the defendant’s lack of a pri­or crim­i­nal record, came from the American Law Institute, the non­par­ti­san group of judges, lawyers and law pro­fes­sors. In 2009, after a review of decades of exe­cu­tions, the group con­clud­ed that the sys­tem could not be fixed and aban­doned try­ing.

Sentencing peo­ple to death with­out tak­ing account of aggra­vat­ing and mit­i­gat­ing cir­cum­stances leads to arbi­trary results. Yet, the review found, so does con­sid­er­ing such cir­cum­stances because it requires jurors to weigh com­pet­ing fac­tors and makes sen­tenc­ing vul­ner­a­ble to their bias­es.

Those bias­es are dri­ven by race, class and pol­i­tics, which influ­ence all aspects of American life. As a result, they have made dis­crim­i­na­tion and arbi­trari­ness the hall­marks of the death penal­ty in this coun­try.

For exam­ple, two-thirds of all those sen­tenced to death since 1976 have been in five Southern states where ​“vig­i­lante val­ues” per­sist, accord­ing to the legal schol­ar Franklin Zimring. Racism con­tin­ues to infect the sys­tem, as study after study has found in the past three decades.

The prob­lems go on: Many defen­dants in cap­i­tal cas­es are too poor to afford legal coun­sel. Many of the lawyers assigned to rep­re­sent them are poor­ly equipped for the job. A major study done for the Senate Judiciary Committee found that ​“egre­gious­ly incom­pe­tent defense lawyer­ing” account­ed for about two-fifths of the errors in cap­i­tal cas­es. Apart from the issue of coun­sel, these cas­es are more expen­sive at every stage of the crim­i­nal process than non­cap­i­tal cas­es.

Politics also per­me­ates the death penal­ty, adding to chances of arbi­trary admin­is­tra­tion. Most pros­e­cu­tors in juris­dic­tions with the penal­ty are elect­ed and con­trol the deci­sion to seek the pun­ish­ment. Within the same state, dif­fer­ing pol­i­tics from coun­ty to coun­ty have led to huge dis­par­i­ties in use of the penal­ty, when the crime rates and demo­graph­ics were sim­i­lar. This has been true in Pennsylvania, Georgia, Texas and many oth­er states.

So far, under this hor­ri­fy­ing sys­tem, 17 inno­cent peo­ple sen­tenced to death have been exon­er­at­ed and released based on DNA evi­dence, and 112 oth­er peo­ple based on oth­er evi­dence. All but a few devel­oped nations have abol­ished the death penal­ty. It is time Americans acknowl­edged that the death penal­ty can­not be made to com­ply with the Constitution and is in every way indefensible.

(“An Indefensible Punishment,” New York Times, September 26, 2011). See Arbitrariness and Race. Read more Editorials on the death penal­ty. For a sim­i­lar analy­sis of the 35-year his­to­ry of the mod­ern death penal­ty, see DPIC’s report, ​“Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976.”