CONTACT: Margot Friedman at 202-332-5550 or


A Majority of Justices From 1976 Decision Agree: Death Penalty Experiment Has Failed

(Washington, D.C.) July 2, 2011 is the 35th anniversary of the U.S. Supreme Court’s decision in Gregg v. Georgia, where the Court approved sentencing schemes intended to make the death penalty less arbitrary and reinstated capital punishment after a four-year moratorium. In advance of this anniversary, the Death Penalty Information Center (DPIC) released a report today showing that race, geography, money, and other arbitrary factors continue to make receiving the death penalty as random as being “struck by lightning,” as Justice Potter Stewart observed.

Read “Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976.”

“Many of those who favored the death penalty in the abstract have come to view its practice very differently. They have reached the conclusion that if society’s ultimate punishment cannot be applied fairly, it should not be applied at all,” the report concludes.

A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was reinstated eventually concluded the experiment had failed. Three of the justices in the Gregg majority (Justices Blackmun, Powell and Stevens) later changed their minds and would have joined Justices Marshall and Brennan in banning capital punishment as unconstitutional.

The report includes a side-by-side comparison entitled “Who is executed? Who is spared?” that shows the worst of the worst offenders often avoid the death penalty. For example, serial killer Gary Ridgway, who pled guilty to killing 48 people in Washington State, was spared the death penalty in exchange for detailed confessions about his victims. In contrast, the borderline mentally retarded Teresa Lewis, who stood by as co-defendants shot her husband, was executed in Virginia. Her co-defendants received life sentences.

National and state data show that the system is too random to be an effective deterrent or deliver retribution. For example, there are approximately 15,000 murders a year nationwide. In 2010, there were 46 executions. A ratio of one execution for every 326 murders suggests that the death penalty is still as unpredictable as being struck by lightning.

According to the report, variables that have nothing to do with the severity of the crime or the culpability of the defendant exert significant influence over capital sentencing and executions:

  • Race: Study after study has shown that defendants who kill white victims are far more likely to receive the death penalty than those who kill black victims.
  • Geography: Almost all of the death sentences in the country come from a relatively few counties and almost all of the executions occur in a handful of states.
  • Costs: Money often plays a key role in the quality of defense a defendant receives and county budgets often dictate whether the district attorney will seek the death penalty.
  • Uneven Appellate Review: In some states, almost all death sentences are affirmed in state court, while in others most are overturned. Nationwide, two-thirds of death sentences are overturned on appeal. When reconsidered, more than 80 percent receive a sentence less than death. The statistics call into question the reliability of the system in selecting the “worst of the worst” for the death penalty.

A national poll of registered voters conducted in 2010 by Lake Research Partners indicated that the problem of unfairness ranks as one of the top concerns among voters leading them to support replacing the death penalty with a sentence of life without parole.

Sixty-nine percent (69%) of respondents found it convincing that: “In reality, the death penalty is applied unevenly and unfairly, even for similar crimes. Some people are sentenced to die because they couldn’t afford a better lawyer, or because they live in a county that seeks the death penalty a lot. A system that is so arbitrary should not be allowed to choose who lives and who dies.”

Prominent legal organizations, such as the American Bar Association and the American Law Institute (ALI), agree that the system is extremely flawed. In 2009, the ALI voted to rescind parts of the Model Penal Code dealing with the death penalty citing the futility of trying to fix the system.

To speak with Richard Dieter, Executive Director of DPIC and author of the report, please contact Margot Friedman at 202-332-5550 or or Elaine de Leon at (202) 289-2275 or

The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. DPIC was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for the media, and serves as a resource to those working on this issue. DPIC is widely quoted and consulted by all those concerned with the death penalty.

# # #