July 2, 2016, marked the 40th anniversary of the Supreme Court’s 7-2 decision in Gregg v. Georgia validating the modern death penalty. Four years earlier, the Court had invalidated all existing capital punishment laws in Furman, leading to the rapid revision of capital punishment laws in 37 states. Gregg was the opportunity for the Court to determine if these “new and improved” laws passed the constitutional bar that the old laws had been seen to fail. Safeguards mandated by the Court included reserving the penalty only for those found guilty of certain specified crimes, such as particularly heinous murders involving torture, rape, or the killing of a police officer; separating out the trial of guilt or innocence from a separate penalty phase during which aggravating and mitigating factors would be considered; and mandating appellate “proportionality review” to ensure that the punishment was in fact being used for the “worst of the worst.” The Court also mandated direct (automatic) appeals to the federal court system before a state could carry out a death sentence, thereby showing its lack of trust that Southern states would carry out the penalty in compliance with the new federal standards.
In Furman, the Court had found the death penalty to have had strong racial overtones, and to have been applied arbitrarily and capriciously to a seemingly random and small set of murderers, akin to a lightning strike. This, the Court ruled, was no way to operate a system involving life and death.
It’s time we took stock. Has the “modern” and improved system resolved the problems inherent in the old system?
In a word, no. Let’s review some of the problems with the old system and see if they have been resolved.
Capricious and arbitrary: As the numbers above indicate, there have been more than 700,000 homicides, but “only” 1,435 executions. In Furman, the Court complained that only a tiny handful of murders were selected, capriciously, for the death penalty. James Holmes faced 140 counts of attempted murder and was convicted on 12 counts for the 2012 shooting rampage in a Colorado movie theater; he was not sentenced to death. While all the more than 700,000 homicides were of course not death-eligible, a good estimate is that about 20 percent of these were, perhaps 140,000 cases or so. With 1,435 executions and 140,000 death-eligible homicides, the math is pretty clear: Perhaps 1 percent of death-eligible homicides lead to execution. Various studies, most recently a comprehensive review of all eligible homicides in Connecticut, have made clear that that 1 percent does not systematically coincide with the worst of the worst.
Racially biased: The Court rejected capital punishment in Furman partly because of its fear that Southern states were prone to execute blacks for crimes against whites. The Court was right to be concerned, and the concern remains at least as strong today. Louisiana, for example, has never executed a white for killing a black (though it did execute a white soldier for a bayonet attack on two slave women in … 1752). Missouri, in which, like Louisiana, a majority of all homicide victims are black males, has executed exactly one white for killing a black; this was for an Aryan nation hit inside a prison. Nationally, the odds of execution are dozens of times higher if the victim is a white woman than if the victim is a black male. In the rare cases where a black male kills a white female, his odds of execution are higher still. Compared to earlier periods, the modern death penalty is more geographically focused on the South than it was in earlier eras.
Prone to reversals and error: With more than 8,000 death sentences but fewer than 1,500 executions, the odds of execution, given a death sentence, are just 13 percent. By far the most likely outcome when a death sentence is applied is that an appeals court will overturn it and the inmate will be resentenced to life in prison. Further, with 156 exonerations and 1,435 executions, we have had one exoneration for every nine executions. Exonerees, we should note, often leave prison with no compensation, and often not even an apology.
Costly: California has the nation’s largest death row, but a very inactive death chamber. The state has executed just 13 individuals (most recently in 2006), but has spent over $4 billion on capital punishment related expenses (chiefly, maintaining a separate death row) since reinstatement in 1978. New Jersey, which did not execute a single individual before abolishing capital punishment in 2007, spent over $250 million on the system.
Geographically arbitrary: Harris County, Texas (home to Houston) has seen 125 executions, whereas the next most active state (after Texas), Oklahoma, has had just 112 in the same time period. Just 2 percent of U.S. counties generate more than one-half of all the executions. Perhaps the most surprising element of this question of geography is that the localities with the highest murder rates (for instance, New Orleans) are not the places with the highest rates of execution, or even close. In other words, the “lightning strike” element of the death penalty so firmly rejected by the Court in 1972 has not disappeared. Crimes in St. Louis are much more likely to be met with execution if they occur in the outlying suburbs rather than in the central city. Crimes in Los Angeles are likely to be met with a penalty of “life in prison with the remote possibility of death” whereas in Houston it may be met with death.
As we reach the milestone of 40 years since Gregg, perhaps we should assess the death penalty again as it really operates, rather than as some wish it might.