Twenty-six years ago, on July 2, 1976, the U.S. Supreme Court voted 7-2 in Gregg v. Georgia to reinstate the death penalty after a brief official break. Implicit in the Gregg decision was the optimistic belief that the many problems identified by a previous Supreme Court decision, Furman v. Georgia, could be fixed. In 1972, the Furman Court had struck down hundreds of state laws that the justices deemed illogical. But the majority in Gregg argued that objective standards would minimize impulsive decisions of the jurors and reduce discrimination. A quarter-century and more than 700 executions later, the promise of Gregg seems ridiculously naive. Gregg’s ambition was to rationalize sentencing and ensure that death sentences would be applied more equitably and only to the most appalling offenders. It hasn’t worked out that way. Today in the United States, more than 3,700 men and women await execution on death row.
The overwhelming number of those put to death will be poor, members of a minority, uneducated, or of questionable sanity, and they will have been represented by some of the worst lawyers available. Clearly, it was absurd to assume that the state legislatures that had crafted the unconstitutional laws criticized by the Furman decision would suddenly fix them. The death penalty should be abolished if it can not be administered fairly and impartially. Obvious racial discrimination in the administration of the death penalty remains routine. Nearly 90 percent of the federal inmates on death row are minorities. Also, more than 76 percent of the cases, in which federal prosecutors had sought the death penalty during the previous five years, involved a defendant who belonged to a minority group.
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In the same study, U.S. attorneys were nearly twice as likely to recommend death for an African-American defendant than a Caucasian defendant (Clay 118-122). Under the beliefs established by Gregg, you might conclude that this would be unconstitutional. You would be wrong. In the Gregg decision, the Supreme Court said that a constitutional violation was established if a plaintiff demonstrated a “pattern of arbitrary and capricious sentencing.” Since then, however, the Court appears to have abandoned this logic. In 1987, for example, it ruled that racial disparities are “an inevitable part of our criminal justice system.” (Jackson 21-23). Growing numbers of Americans have begun to question the rationality of the system that executes people. True, a majority of Americans support capital punishment and overwhelmingly supported the execution of Timothy McVeigh. Yet recent polls reveal that 40 percent of the public also think that the penalty is not applied fairly and half think that there should be no more executions until a government commission thoroughly examines the system’s fairness.
This growing skepticism stems from a combination of factors. First, a majority of individuals since 1973 have been released from state death rows either because they were proved innocent or because of an appeals court action. Second, sufficient documentation has revealed how poorly the system works. Serious errors were found in 68 percent of death penalty cases that resulted in the death sentence or underlying conviction being overturned. Finally, skepticism about the death penalty was given legitimacy last year when Illinois Governor George Ryan, a Republican supporter of the death penalty, halted executions in his state after learning that 13 innocent persons had been found on its death row (Rein 71-74).
Despite the increasing number of problems becoming evident in the death penalty, the nation has made a few important improvements since 1976. Concurrent with Gregg, the Supreme Court outlawed mandatory death sentences. The following year, the Supreme Court banned capital punishment in cases of non-homicidal rape. This was a huge blow against one particularly racist aspect of the death penalty since between 1930 and 1972, nine of every ten people executed in this country for rape were black. All but three of the 38 death penalty states now offer life without parole as an alternative to the death sentence. During the past year, nearly half of the death penalty states have approved some sort of reform legislation, most often relating to DNA testing for prisoners who claim to be innocent. A few have also enacted new laws designed to improve the quality of representation provided to indigents, and five have approved bills banning the execution of the mentally handicapped (Rein 65).
Even with all the evidence showing that capital punishment is unjust, the death penalty is still defended. Supporters argue that the government ensures impartiality to all defendants regardless of their crimes. However, for most members of Congress, ensuring fairness in the death penalty process is less urgent than demonstrating that they’re “tough on crime.” How else can one explain Congress’s decision to assault organizations that once provided a useful mechanism to check legally flawed death sentences? Or Congress’s passage, one year after the Oklahoma City bombing, of the Anti-Terrorism and Effective Death Penalty Act, which “decimated habeas corpus review” not just for death row inmates but for everyone else as well (Doyle)?
Proponents of the Effective Death Penalty Act said that the law was needed to shorten the time between conviction and execution to as little as four to six years. But it has taken 11 years, on average, to establish reversible error in capital cases. Among the 20 innocent people Florida has discovered on its death row, one individual spent 21 years in prison before his or her innocence was established. A growing amount of evidence shows that capital punishment is being administered unjustly. Discrimination by race and gender is evident in court decisions. Also, more and more individuals are becoming aware that the death penalty is not impartial, and arguments to support capital punishment are growing weaker. As more citizens learn this truth, the country will be forced to reexamine our policy on capital punishment.
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