OP-ED: At the 30^th Anniversary of Gregg v. Georgia, Death Penalty Remains Arbitrary

Professor Michael Meltsner, who worked as an attor­ney with the NAACP Legal Defense Fund in its efforts to chal­lenge the death penal­ty in the 1960s and 70s, recent­ly assessed the U.S.‘s appli­ca­tion of the death penal­ty over the past 30 years. He not­ed that today’s death penal­ty sys­tem is ​“bro­ken” and fails to make the nation a safer soci­ety. Writing in the Boston Globe, Meltsner wrote:

The same week Americans enjoy the 230^th birth­day of the Declaration of Independence, they might also con­sid­er the mean­ing of anoth­er, less cel­e­bra­to­ry, anniver­sary. Thirty years ago, on July 2, 1976, a divid­ed US Supreme Court upheld Georgia, Florida, and Texas laws that promised an end to the arbi­trari­ness and dis­crim­i­na­tion that had ren­dered cap­i­tal pun­ish­ment uncon­sti­tu­tion­al four years earlier.

After the Supreme Court’s deci­sion, the 38 states using the death penal­ty have employed dif­fer­ent cri­te­ria to mea­sure aggra­vat­ing and mit­i­gat­ing cir­cum­stances. However, all empow­er juries to use such a for­mu­la to decide who deserves death and who does not. After 30 years, it is time to eval­u­ate the impact of the laws.

Regardless of whether observers favor or oppose the death penal­ty, most agree with the con­clu­sion of Columbia Law School’s James Liebman , a lead­ing cap­i­tal pun­ish­ment schol­ar, who has labeled the way we enforce death penal­ty laws a ​“bro­ken system.”

And no won­der. Execution com­mon­ly occurs more than a decade after the crime that gave rise to it, long after the death has mean­ing for any­one out­side the imme­di­ate cir­cle of the case. Amazingly, it costs from $2 mil­lion to $5 mil­lion to take a con­vict­ed killer from tri­al to the death cham­ber. The jus­tice sys­tem devotes enor­mous, if often dys­func­tion­al, atten­tion to cap­i­tal cas­es, short­chang­ing the law enforce­ment resources avail­able to the vast­ly larg­er num­ber of seri­ous, non­cap­i­tal, cases.

And then there are the dis­putes between those who insist that exe­cu­tions effec­tive­ly deter mur­der and those who claim they do not. Or between those who see race-based deci­sion-mak­ing infect­ing every stage of the process, and those who say that such claims are not estab­lished by sta­tis­tics. These dif­fer­ences are of long stand­ing and they may nev­er be resolved.

Of con­sid­er­a­tions that demand a fail­ing grade for the American way of death sen­tenc­ing, three stand out.

First, the rise of the inno­cence move­ment has pro­duced well over 100 exon­er­a­tions. When the Supreme Court decid­ed to restore the death penal­ty in 1976, seri­ous inno­cence claims were lim­it­ed to rare instances of total crim­i­nal jus­tice sys­tem col­lapse. Fueled by infal­li­ble DNA evi­dence but also encom­pass­ing defects in eye­wit­ness iden­ti­fi­ca­tion and law enforce­ment malfea­sance, doubts about death sen­tences are now under­stood to result from com­mon and vir­tu­al­ly inerad­i­ca­ble human failures.

Second, when the Supreme Court tried to rid us of cap­i­tal pun­ish­ment in 1972, it focused on arbi­trari­ness. As Justice Potter Stewart famous­ly put it, death sen­tences were ​“cru­el and unusu­al in the same way that being struck by light­ning is cru­el and unusu­al” — only a capri­cious­ly select­ed, ran­dom few, not fun­da­men­tal­ly dif­fer­ent in char­ac­ter than those sent to prison, were actually executed.

Today, despite the new laws, lit­tle has changed. Washington State’s Green River Killer took at least 48 lives, but because he knew where his vic­tims were buried he plea bar­gained to save his life. The bru­tal Kansas ser­i­al mur­der­er of 10 known as the BTK (“bind, tor­ture and kill”) stran­gler received only mul­ti­ple life sentences.

Yet we still make room for the exe­cu­tion of men like Chicano labor­er Ruben Cantu who, based on the tire­less inves­ti­ga­tion of Houston Chronicle reporter Lise Olsen, turns out to have been sent to his death because of the per­jury of an eye­wit­ness. More for­tu­nate was Ray Krone, who spent four years on Arizona’s death row and six more in prison before release because the state stub­born­ly refused to turn over for test­ing the evi­dence that ulti­mate­ly exon­er­at­ed him and point­ed to a man who should have been the prime sus­pect. These are not iso­lat­ed cas­es; they illus­trate how dif­fi­cult it is to make the tough legal and nuanced moral choic­es that fair and con­sti­tu­tion­al death sen­tenc­ing should require.

Last, what we get instead is a dis­tract­ing series of court­room pas­sion plays — the lat­est involv­ing con­vict­ed ter­ror­ist Zacarias Moussaoui — that stoke the fan­ta­sy that we are being pro­tect­ed by exe­cut­ing what is, in real­i­ty, a tiny per­cent­age of killers. In 2005, only 60 indi­vid­u­als were exe­cut­ed, despite the fact that per­haps 15,000 mur­ders are com­mit­ted each year.

It is strik­ing how rel­a­tive­ly lit­tle we talk about reduc­ing lethal vio­lence and how lit­tle ener­gy politi­cians pro­vide to poli­cies tar­get­ed at con­tain­ing it — youth employ­ment, fam­i­ly sup­port, drug treat­ment, hand­gun sup­pres­sion — before it happens.

The poli­cies in ques­tion are con­tro­ver­sial but debate over whether they can make us more secure is mut­ed while cap­i­tal pun­ish­ment is a show that never ends.

(Boston Globe, July 2, 2006). Michael Meltsner is a pro­fes­sor of law at Northeaster University and author of ​“The Making of a Civil Rights Lawyer.” He recent­ly was the keynote speak­er at DPIC’s Thurgood Marshall Journalism Awards luncheon. 

See Deterrence, Arbitrariness, Innocence, and History of the Death Penalty. See DPIC Resources regard­ing the 30^th anniver­sary of Gregg v. Georgia.