Twenty Years of Capital Punishment: A Re-Evaluation

“One area of law more than any oth­er besmirch­es the con­sti­tu­tion­al vision of human dig­ni­ty.… The bar­bar­ic death penal­ty vio­lates our Constitution. Even the most vile mur­der­er does not release the state from its oblig­a­tion to respect dig­ni­ty, for the state does not hon­or the vic­tim by emu­lat­ing his mur­der­er. Capital pun­ish­men­t’s fatal flaw is that it treats peo­ple as objects to be toyed with and dis­card­ed.… One day the Court will out­law the death penal­ty. Permanently.”

–William J. Brennan, Jr., retired Supreme Court Justice, 1996 [1]

“From this day for­ward, I no longer shall tin­ker with the machin­ery of death. For more than 20 years I have endeav­ored – indeed, I have strug­gled – along with a major­i­ty of this Court, to devel­op pro­ce­dur­al and sub­stan­tive rules that would lend more than the mere appear­ance of fair­ness to the death penal­ty endeav­or. Rather than con­tin­ue to cod­dle the Court’s delu­sion that the desired lev­el of fair­ness has been achieved and the need for reg­u­la­tion evis­cer­at­ed, I feel moral­ly and intel­lec­tu­al­ly oblig­at­ed to con­cede that the death penal­ty exper­i­ment has failed.”

–Harry Blackmun, retired Supreme Court Justice, 1994 [2]

“If we had delib­er­ate­ly set out to cre­ate a chaot­ic sys­tem, we could­n’t have come up with any­thing worse. It’s a mer­ry-go-round, it’s ridicu­lous; it’s so clogged up only an arbi­trary few ever get it. I don’t get any damn plea­sure out of the death penal­ty and I nev­er have. And frankly, if they abol­ished it tomor­row, I’d go get drunk in cel­e­bra­tion.”

–Ray Marky, for­mer Florida Assistant Attorney General for pros­e­cut­ing death penal­ty appeals [3]

“He’s run­ning on the death penal­ty for drug push­ers. I mean, good­ness gra­cious, if … that’s what pol­i­tics has descend­ed into in the 1990s – who can get to the far right on the death penal­ty – it is a sad day.”

–Republican Jack Kemp, for­mer Secretary of HUD [4]

“I have come to think that cap­i­tal pun­ish­ment should be abolished.”

–Lewis F. Powell, Jr., retired Supreme Court Justice, 1991 [5]

“Take it from some­one who has spent a career in Federal and state law enforce­ment, enact­ing the death penal­ty … would be a grave mis­take. Prosecutors must reveal the dirty lit­tle secret they too often share only among them­selves: The death penal­ty actu­al­ly hin­ders the fight against crime.”

–Robert M. Morgenthau, District Attorney, Manhattan, NY, 1995 [6]

On July 2, 1976, the United States Supreme Court hand­ed down its deci­sion in Gregg v. Georgia, which allowed the death penal­ty to resume after a decade-long mora­to­ri­um on exe­cu­tions. The major­i­ty of the Court held that the poten­tial for unfair­ness which had been a hall­mark of cap­i­tal pun­ish­ment in the past had been suf­fi­cient­ly ame­lio­rat­ed by the enact­ment of recent laws which guid­ed its impo­si­tion. In 1972, the Court had con­clud­ed that the death penal­ty was cru­el and unusu­al pun­ish­ment under exist­ing statutes because it was ran­dom­ly applied. The impo­si­tion of the death penal­ty was akin to being struck by light­ning: it was arbi­trary, cru­el, and unpre­dictable in its selective fury.

The death penal­ty’s arbi­trary qual­i­ty meant that those with the pow­er to hurl this light­ning could be influ­enced by per­son­al prej­u­dices. There was ample evi­dence, for exam­ple, that juries, judges and pros­e­cu­tors were more like­ly to inflict the death penal­ty on African-Americans, espe­cial­ly if the vic­tim in the under­ly­ing crime was white. [7] The open­ing cre­at­ed by the arbi­trari­ness of the process result­ed in a flood of cas­es which were all too pre­dictable: the death penal­ty was used pri­mar­i­ly against the poor, minori­ties, and those unable to secure competent attorneys.

In 1976, the Supreme Court ruled that the prob­lem with the death penal­ty lay not with the pun­ish­ment itself, but rather with the vague state statutes which had allowed such arbi­trary appli­ca­tions. From among a vari­ety of new statutes which states had passed after the death penal­ty was struck down in 1972, the Court found that those of Florida, Georgia, and Texas pro­vid­ed the guid­ance to juries nec­es­sary to pre­vent the arbi­trary appli­ca­tion of the death penalty.

But the Supreme Court’s approval of these new statutes (and oth­ers which would imi­tate them) was ten­ta­tive: it was too soon to tell if these new laws would also be applied in an arbi­trary fash­ion, there­by vio­lat­ing the Eighth Amendment’s ban on cru­el and unusual punishment.

We now have twen­ty years of expe­ri­ence with these new statutes. Since 1976, well over 5,000 peo­ple have been sen­tenced to death; 330 peo­ple have been exe­cut­ed in 26 states; 3,061 peo­ple remain on death row await­ing exe­cu­tion. This is an appro­pri­ate time to ask if the death penal­ty has ful­filled the promise of jus­tice and fair­ness made 20 years ago.

The prob­lem of racial dis­par­i­ties in the appli­ca­tion of the death penal­ty which exist­ed before 1976 has not been elim­i­nat­ed. Although African-Americans con­tin­ue to be sen­tenced to death and exe­cut­ed in far greater num­bers than their pro­por­tion in the U.S. pop­u­la­tion,[8] the most sig­nif­i­cant stud­ies of racial dis­par­i­ties point to the race of the vic­tims in the under­ly­ing crimes as the crit­i­cal fac­tor. Those sen­tenced to death have been most often con­vict­ed of com­mit­ting a crime against a white per­son. Eighty-two per­cent of the mur­der vic­tims in the cas­es result­ing in exe­cu­tions since 1976 have been white, [9] even though whites are vic­tims in less than 50 per­cent of the mur­ders com­mit­ted in the U.S.[10] When both race of defen­dant and race of vic­tim fig­ures are exam­ined, the sta­tis­tics are even more glar­ing. Since 1976, 84 black defen­dants have been exe­cut­ed for the mur­der of a white vic­tim, but only 4 white defen­dants have been exe­cut­ed for the mur­der of a black vic­tim. [11]

In 1990, the United States General Accounting Office con­duct­ed a review of the best stud­ies con­cern­ing race and the death penal­ty. They concluded that:

[R]ace of vic­tim was found to influ­ence the like­li­hood of being charged with cap­i­tal mur­der or receiv­ing the death penal­ty, i.e., those who mur­dered whites were found to be more like­ly to be sen­tenced to death than those who mur­dered blacks. This find­ing was remark­ably con­sis­tent across data sets, states, data col­lec­tion meth­ods, and ana­lyt­ic tech­niques.[12]

Justice Harry Blackmun, who vot­ed to uphold the death penal­ty both in 1972 when it was halt­ed, and in 1976 when it was rein­stat­ed, recent­ly con­clud­ed that racial dis­crim­i­na­tion con­tin­ues to infect the prac­tice of the death penal­ty: ​“Even under the most sophis­ti­cat­ed death penal­ty statutes, race con­tin­ues to play a major role in deter­min­ing who shall live and who shall die.”[13]

Racial dis­par­i­ties in the death penal­ty con­tin­ue in various ways:

• In Maryland, 87 per­cent of those on death row are African-Americans.[14] (The over­whelm­ing major­i­ty of those sen­tenced to death come from a sin­gle suburban county.)
• In Kentucky, 100 per­cent of those on death row are there for the mur­der of a white vic­tim, despite the fact that there have been 1,000 African-Americans mur­dered in that state since 1976. [15]
• In New Jersey, a recent death penal­ty study by the state’s Supreme Court found ​“strong and con­sis­tent bias­es” against black defen­dants, tak­ing into account cas­es with sim­i­lar socio-eco­nom­ic back­grounds and sim­i­lar aggra­vat­ing and mit­i­gat­ing cir­cum­stances. [16]
• Under the fed­er­al death penal­ty, which resumed in 1988 and was expand­ed in 1994, 78 per­cent of those slat­ed for cap­i­tal pros­e­cu­tion have been mem­bers of minori­ties. [17]

Race is not the only cri­te­ri­on which influ­ences who receives the death penal­ty. The use of the death penal­ty varies great­ly from one region of the coun­try to anoth­er, from one state to anoth­er, and even from coun­ty to coun­ty with­in a state. Prosecutors have vir­tu­al­ly unre­view­able dis­cre­tion in decid­ing whether to seek the death penal­ty in a particular case.

The Inequities of Location

Of the 330 exe­cu­tions which have tak­en place since 1976, 274 (or 83 per­cent) have occurred in the South. Texas, alone, has account­ed for about a third of all exe­cu­tions in the coun­try. And even with­in Texas, the prac­tice is any­thing but uni­form. Houston, whose pop­u­la­tion makes up about 16 per­cent of Texas’s total pop­u­la­tion, is respon­si­ble for about a third of Texas’s death row.[18] Similarly, over half of Pennsylvania’s death row comes from one city, Philadelphia.[19] Philadelphia con­tains only 14 per­cent of the state’s pop­u­la­tion but its pros­e­cu­tor pur­sues the death penal­ty in vir­tu­al­ly every available case.

The Inequities of Appointed Attorneys

After the deci­sion by the pros­e­cu­tor to pur­sue the death penal­ty, the wheel of chance spins again to select a lawyer for the defen­dant. About 90 per­cent of those fac­ing cap­i­tal charges can­not afford their own lawyer.[20] A few defen­dants will be assigned com­pe­tent attor­neys, skilled in han­dling a death penal­ty case. More typ­i­cal­ly, how­ev­er, the defen­dant will be giv­en a lawyer will­ing to accept a pit­tance of a fee, and who will be denied the nec­es­sary resources to con­duct an ade­quate defense. The death penal­ty will be assessed not on those who have com­mit­ted the worst crimes, but on those giv­en the worst lawyers.

Defendants fac­ing the death penal­ty have been giv­en lawyers who were drunk dur­ing the tri­al, lawyers who fell asleep dur­ing the tri­al, lawyers who were absent dur­ing crit­i­cal parts of the case, lawyers who had just grad­u­at­ed from law school, or lawyers who had nev­er han­dled a crim­i­nal case. [21] Even expe­ri­enced lawyers can do lit­tle when they are paid two or three thou­sand dol­lars for a case which requires a thou­sand hours of prepa­ra­tion and thou­sands of dol­lars for experts and investigators.

States are sim­ply unwill­ing to spend the mon­ey it takes to elim­i­nate this arbi­trary fac­tor in the death penal­ty. Capital pun­ish­ment is already a tremen­dous finan­cial drain on state and local gov­ern­ment. Providing fair­ly com­pen­sat­ed coun­sel, and the resources they need to con­duct a full defense of their client, is not a pri­or­i­ty for gov­ern­ments or tax­pay­ers. An arbi­trar­i­ly applied death penal­ty is the result. As Justice Harry Blackmun wrote short­ly before leav­ing the Supreme Court: ​“My 24 years of over­see­ing the impo­si­tion of the death penal­ty from this Court have left me in grave doubt … whether the con­sti­tu­tion­al require­ment of com­pe­tent coun­sel for cap­i­tal defen­dants is being ful­filled.” [22]

The Inequities of Juries

Even juries, who have sup­pos­ed­ly ben­e­fit­ed from the Supreme Court’s require­ment that they be guid­ed in their delib­er­a­tions, are unpre­dictable in their death penal­ty deci­sions. After find­ing a defen­dant guilty, juries are thrust in the unique role of decid­ing who should live or die. Typically, they are instruct­ed to return a death sen­tence if the aggra­vat­ing fac­tors in the case out­weigh the mit­i­gat­ing fac­tors, with­out oth­er cas­es to com­pare. Not sur­pris­ing­ly, this arti­fi­cial mech­a­nism for approach­ing such a crit­i­cal ques­tion leaves many jurors bewildered.

A recent study of jurors in cap­i­tal cas­es found that the major­i­ty of jurors formed an opin­ion about the defen­dan­t’s sen­tence before hear­ing any evi­dence at the pun­ish­ment phase of the tri­al. Over 40 per­cent did not under­stand the jury instruc­tions about how to eval­u­ate mit­i­gat­ing fac­tors.[23] Also, although jurors fre­quent­ly ask about the length of a ​“life sen­tence,” they are often left to guess about its mean­ing. [24] And the jury’s knowl­edge of the mit­i­gat­ing fac­tors which might tilt the scales in favor of a life sen­tence is total­ly depen­dent on the defense lawyer’s pre­sen­ta­tion; in many cas­es, defense lawyers put on no mit­i­gat­ing evi­dence, there­by depriv­ing the jury of crit­i­cal infor­ma­tion nec­es­sary for their deci­sion. [25]

Women and the Death Penalty

Throughout the past twen­ty years, women have remained a very small per­cent­age of those sen­tenced to death. Since the death penal­ty returned, 113 women have been sen­tenced to death, about 2 per­cent of the total death sen­tences in that peri­od. Forty-six women remain on death row today. [26] One woman has been exe­cut­ed dur­ing this peri­od: Velma Barfield, who was exe­cut­ed by lethal injec­tion in North Carolina in 1984 for killing her fiancee.

The infre­quen­cy of using the death penal­ty against women con­tin­ues a pat­tern from pre­vi­ous eras. Neither Texas nor Florida, the two cur­rent lead­ers in exe­cu­tions, have exe­cut­ed a woman in this cen­tu­ry. [27]

Juveniles and the Death Penalty[28]

The num­ber of juve­nile offend­ers (those under 18 years of age at the time of their crime) on death row is about the same as the num­ber of women. However, since 1976 nine juve­nile offend­ers have been exe­cut­ed, the major­i­ty of them from Texas. Of the 46 juve­nile offend­ers on death row, 65 per­cent are either black or Hispanic.

Fourteen states and the fed­er­al gov­ern­ment for­bid the death penal­ty for juve­nile offend­ers. In 1988, the Supreme Court ruled that the exe­cu­tion of an Oklahoman who was 15 at the time of his crime would be uncon­sti­tu­tion­al.[29] However, in 1989, the Court upheld the death penal­ty for those who were 16 or 17 at the time of their crime. [30]

Only sev­en oth­er coun­tries in the world are known to have car­ried out an exe­cu­tion of a juve­nile offend­er in the last ten years, and none has car­ried out as many as the United States. [31] The U.N. International Covenant on Civil and Political Rights, which the United States has rat­i­fied with reser­va­tions, pro­hibits the impo­si­tion of the death penal­ty on juve­nile offend­ers. [32]

Mental Retardation and the Death Penalty

Persons with men­tal retar­da­tion fall into the bot­tom two to three per­cent of the U.S. pop­u­la­tion in intel­lec­tu­al func­tion­ing. They are unlike­ly to achieve a men­tal age greater than 12 years old. [33] Persons with men­tal retar­da­tion who have com­mit­ted a crime have a dimin­ished capac­i­ty to under­stand right from wrong and the legal con­se­quences of their actions. And even those who are com­plete­ly inno­cent are more prone to con­fess to what they have not done in order to please their inter­roga­tors. Mental retar­da­tion also inter­feres with the defen­dan­t’s abil­i­ty to assist his or her attor­ney in prepar­ing a defense. On the wit­ness stand or even sit­ting in the court­room, the defen­dant may appear to lack the emo­tions of remorse or empa­thy which a jury weighs in con­sid­er­ing a death sen­tence. [34]

Twenty-sev­en defen­dants with men­tal retar­da­tion have been exe­cut­ed in the U.S. since 1976, [35] rep­re­sent­ing about 8 per­cent of all exe­cu­tions. Although most of the 38 states with the death penal­ty allow the exe­cu­tion of those with men­tal retar­da­tion, there has been some leg­isla­tive move­ment towards stop­ping such exe­cu­tions. When the U.S. Supreme Court upheld the con­sti­tu­tion­al­i­ty of apply­ing the death penal­ty to those with men­tal retar­da­tion in 1989, it not­ed that only one state for­bade this prac­tice. [36] Today, 11 states and the fed­er­al death penal­ty statute exclude those with men­tal retar­da­tion. Justice William Brennan, in dis­sent­ing from the Supreme Court’s deci­sion in this regard, wrote that ​“the exe­cu­tion of men­tal­ly retard­ed indi­vid­u­als is ​‘noth­ing more than the pur­pose­less and need­less impo­si­tion of pain and suf­fer­ing,’ and is uncon­sti­tu­tion­al under the Eighth Amendment.” [37]

Twenty years ago, the major­i­ty of peo­ple sup­port­ed the death penal­ty because it was thought to be a deter­rent to crime. Today, only 13 per­cent rely on deter­rence as their basis for sup­port­ing cap­i­tal pun­ish­ment. [38]

Expert opin­ion is dis­mis­sive of any deter­rent effect to the death penal­ty. A recent poll of crim­i­nol­o­gists found that over 80 per­cent of these experts believe that exist­ing research fails to sup­port a deter­rence jus­ti­fi­ca­tion for cap­i­tal pun­ish­ment. [39] A 1995 nation­al poll of the nation’s police chiefs revealed that the police do not believe the death penal­ty is effec­tive in fight­ing crime. [40] Two-thirds of those polled did not believe that the death penal­ty sig­nif­i­cant­ly reduces the num­ber of homi­cides, and most said it is not an effec­tive law enforce­ment tool. Similarly, a poll of the nation’s top city offi­cials by the National League of Cities placed the death penal­ty last in a long list of mea­sures most like­ly to reduce crime. [41]

While the ratio­nal jus­ti­fi­ca­tion for the death penal­ty remains in doubt, there is lit­tle dis­agree­ment that it amounts to a very expen­sive gov­ern­ment pro­gram. The most com­pre­hen­sive study in the coun­try found that the death penal­ty costs North Carolina $2.16 mil­lion per exe­cu­tion more than the cost of a non-death penal­ty mur­der case with a sen­tence of life impris­on­ment.[42] Another study found that the death penal­ty costs the State of California $90 mil­lion annu­al­ly beyond the ordi­nary costs of the jus­tice sys­tem, includ­ing $78 mil­lion at the tri­al lev­el.[43] The State of Florida is spend­ing an aver­age of $3.2 mil­lion per exe­cu­tion.[44] In Texas, a death penal­ty case costs an aver­age of $2.3 mil­lion, about three times the cost of impris­on­ing some­one for 40 years in a sin­gle cell at the high­est secu­ri­ty lev­el. [45] The hun­dreds of mil­lions of dol­lars spent on the death penal­ty could instead be going toward pro­grams that actu­al­ly reduce the lev­el of crime.

The death penal­ty has become a main­stay of polit­i­cal cam­paigns, and the issue is fre­quent­ly insert­ed into races for state, nation­al and even judi­cial elec­tions. [46] When oppos­ing can­di­dates both sup­port cap­i­tal pun­ish­ment, they vie for ever more dra­con­ian approach­es to expand the num­ber of death-eli­gi­ble crimes, cut­back on the appeals process, and speed up exe­cu­tions. House Speaker Newt Gingrich recent­ly pro­posed the death penal­ty for drug smug­gling and rec­om­mend­ed the exe­cu­tion of 35 peo­ple at one time. [47]

Another recent exam­ple of this politi­ciza­tion was the leg­is­la­tion pro­posed as a response to the bomb­ing in Oklahoma City. A series of anti-ter­ror­ism mea­sures was quick­ly trans­formed into an attack on death penal­ty appeals. According to Republican Presidential can­di­date Bob Dole, the restric­tions on fed­er­al review of death cas­es were the ​“heart and soul” of the ter­ror­ism bill. [48] Families of vic­tims of the Oklahoma bomb­ing were brought to Washington to lob­by for speed­ing up state death penal­ty cas­es which had noth­ing to do with terrorism.

Other leg­isla­tive pro­pos­als, such as the expan­sion of the fed­er­al death penal­ty and the elim­i­na­tion of fed­er­al fund­ing for the cen­ters defend­ing those on death row, have recent­ly passed into law in response to this politi­ciza­tion. Such cut­backs could lead to mis­tak­en exe­cu­tions, espe­cial­ly since lit­tle is being done to improve the qual­i­ty of coun­sel defend­ing cap­i­tal cas­es at trial. 

Since 1973, fifty-nine death row inmates have been released after evi­dence of their inno­cence emerged. Some of these pris­on­ers came with­in days of exe­cu­tion. In far too many of the cas­es, the tri­al lawyer failed to do the basic inves­ti­ga­tion nec­es­sary to exon­er­ate the client. It took an aver­age of 7 years from con­vic­tion until these peo­ple were released. Yet many politi­cians are push­ing for expe­dit­ed appeals sched­ules that would ter­mi­nate in much less time, there­by increas­ing the like­li­hood that evi­dence of inno­cence will not be estab­lished before execution.

Some of those released from death row dur­ing the past 20 years include:

• Wilbert Lee and Freddie Pitts in Florida in 1975. They were con­vict­ed of a dou­ble mur­der and sen­tenced to death. They were released and received a full par­don from Governor Askew because of their inno­cence. Another man had con­fessed to the killings.
• Randall Dale Adams in Texas in 1989. He was ordered to be released by the Texas Court of Appeals after new evi­dence emerged. The pros­e­cu­tors declined to seek a new tri­al. Adams was the sub­ject of the movie, The Thin Blue Line, which was pro­duced while he was still in prison.
• Clarence Brandley in Texas in 1990. Brandley was award­ed a new tri­al when evi­dence of racism, per­jury and sup­pres­sion of evi­dence was uncov­ered. After ten years on death row, all charges were dropped.
• Gary Nelson in Georgia in 1991. Nelson’s rep­re­sen­ta­tion at tri­al was a dis­grace. Fortunately, a major law firm in Atlanta took over his case. The coun­ty dis­trict attor­ney even­tu­al­ly acknowl­edged: ​“There is no mate­r­i­al ele­ment of the state’s case in the orig­i­nal tri­al which has not sub­se­quent­ly been deter­mined to be impeached or contradicted.”
• Kirk Bloodsworth in Maryland in 1993. Bloodsworth was con­vict­ed and sen­tenced to death for the rape and mur­der of a young girl. He was first grant­ed a new tri­al and giv­en a life sen­tence. He was released after sub­se­quent DNA test­ing con­firmed his innocence.
• Walter McMillian in Alabama in 1993. His con­vic­tion was over­turned by the Alabama Court of Criminal Appeals, and he was freed, after three wit­ness­es recant­ed their tes­ti­mo­ny and pros­e­cu­tors agreed the case had been mis­han­dled. His case was the sub­ject of a 60 Minutes investigation.
• Andrew Golden in Florida in 1994. Golden’s con­vic­tion was over­turned by the Florida Supreme Court in 1993. The court held that the state had failed to prove that the vic­tim’s death was any­thing but an acci­dent. Golden, a for­mer teacher, was released into the wait­ing arms of his chil­dren on January 6, 1994.
• Rolando Cruz in Illinois in 1995. Cruz was sen­tenced to death for the mur­der of 10-year-old Jeanine Nicarico. Another man, Brian Dugan, con­fessed to the killing. An assis­tant state attor­ney gen­er­al resigned and oth­er law enforce­ment offi­cials protest­ed, because they thought it improp­er to con­tin­ue the pros­e­cu­tion of Cruz, whom they said was inno­cent. In July, 1994, the state Supreme Court over­turned Cruz’s con­vic­tion. Cruz was acquit­ted at his retri­al in November, 1995. 

While the U.S. has been expand­ing the death penal­ty and accel­er­at­ing exe­cu­tions, the world com­mu­ni­ty has been mov­ing away from the death penal­ty. There are now more coun­tries (100) which have abol­ished cap­i­tal pun­ish­ment in law or in prac­tice than coun­tries which retain it. [49] Since 1976, an aver­age of two coun­tries a year have abol­ished the death penal­ty, at least for ordi­nary crimes. The coun­tries which have stopped the ordi­nary use of the death penal­ty since 1976 include: South Africa, Italy, Greece, Switzerland, Hungary, Ireland, Cambodia, New Zealand, Romania, Germany, Australia, Argentina, France, Spain, and Canada. The Vatican has con­demned the wide­spread use of the death penal­ty. The United Nations has called upon mem­ber states to move towards abo­li­tion of the death penal­ty, to stop expand­ing it to new crimes, and not to apply it to juve­nile offend­ers.[50] New coun­tries join­ing the Council of Europe, which includes many for­mer com­mu­nist coun­tries, must pledge to abol­ish the death penal­ty in three years. [51]

Twenty years ago this coun­try embarked on an exper­i­ment with new death penal­ty statutes aimed at cor­rect­ing the inequities and arbi­trari­ness of the past. There now exists a con­sid­er­able body of evi­dence – in the form of sta­tis­tics, expert opin­ion, and per­son­al accounts – which clear­ly indi­cates that the death penal­ty remains infect­ed with injus­tice. Race, eco­nom­ics, local pol­i­tics, and a host of oth­er fac­tors that have noth­ing to do with the stat­ed pur­pos­es of cap­i­tal pun­ish­ment, dic­tate who is exe­cut­ed and who is spared. While the death penal­ty may sat­is­fy some peo­ple’s need for revenge, in prac­tice it remains a lot­tery in which the American sys­tem of jus­tice is the ulti­mate los­er. After twen­ty years it is fair to con­clude, with retired Supreme Court Justice Harry Blackmun, that ​“the death penal­ty exper­i­ment has failed.”