Law Review: Article Tracks 400 Years of America’s ​“Inglorious Experience” With the Death Penalty

A land­mark arti­cle in the Northwestern Journal of Law & Social Policy pro­vides a ​“com­pi­la­tion of mile­stones in the American expe­ri­ence with cap­i­tal pun­ish­ment,” track­ing more than 400 years of the ​“inglo­ri­ous expe­ri­ence with cap­i­tal pun­ish­ment” in what is now the United States. Authors Rob Warden (pic­tured, left), Executive Director Emeritus at Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, and Daniel Lennard (pic­tured, right), a lawyer at Kramer Levin Naftalis & Frankel LLP, tracked more than four cen­turies of cap­i­tal pun­ish­ment on what is now American soil. 

“As our mile­stones show,” they write, ​“cap­i­tal pun­ish­ment … has been plagued by racism, inflic­tion of pain both inten­tion­al and unin­ten­tion­al, exe­cu­tions for crimes to which the death penal­ty no longer applies, for the imag­i­nary crime of witch­craft, and, in two instances, mur­ders that appear not to have occurred.” 

The authors present more than 300 chrono­log­i­cal vignettes that depict endem­ic injus­tice in a death-penal­ty sys­tem they say has ​“claimed lives of the men­tal­ly ill, the severe­ly intel­lec­tu­al­ly hand­i­capped or brain-dam­aged, juve­niles, and thou­sands of pris­on­ers exe­cut­ed in U.S. juris­dic­tions that have since abol­ished or sus­pend­ed capital punishment.” 

Underscoring the dan­gers of cap­i­tal pun­ish­ment, the authors explain that ​“for every ten death row pris­on­ers exe­cut­ed” under laws enact­ed after the U.S. Supreme Court struck down the nation’s cap­i­tal pun­ish­ment schemes in 1972 ​“more than one has been exon­er­at­ed.” Moreover, death-row pris­on­ers ​“in effect committ[ed] state-abet­ted sui­cide” in near­ly ten per­cent of the exe­cu­tions dur­ing this peri­od, under­min­ing appel­late safe­guards by vol­un­tar­i­ly aban­don­ing discretionary appeals. 

Although three states have acknowl­edged hav­ing exe­cut­ed inno­cent defen­dants, Warden and Lennard present evi­dence that ​“untold num­bers of oth­ers who like­ly were inno­cent” also have been exe­cut­ed. The authors ulti­mate­ly con­clude that main­tain­ing cap­i­tal pun­ish­ment in the U.S. makes lit­tle sense ​“in light of its lack of a deter­rent effect on crime, its racial­ly dis­crim­i­na­to­ry impo­si­tion, the risk of exe­cut­ing the inno­cent, and its obscene­ly high cost.” They say that while recent judi­cial appoint­ments may have delayed death-penal­ty abo­li­tion, the trends against cap­i­tal pun­ish­ment ​“bode well” and ​“the out­look for abo­li­tion of the death penal­ty in the United States remains pos­i­tive — even if it is like­li­er to come lat­er than sooner.”