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Brief History
In 1972, the Supreme Court in Furman v. Georgia held that the lack of objective, nondiscriminatory standards throughout the country for imposing the death penalty resulted in its unpredictable application, thus violating the Eighth Amendment’s ban on cruel and unusual punishment. In the 5-4 decision, the Court voided every state’s existing death penalty statute, commuted the sentences of death row inmates around the country, and suspended the imposition of the death penalty nationally.{1} 1 Furman v. Georgia, 408 U.S. 238 (1972).
Although there was no majority opinion, important observations were noted by several of the Court’s members. In his concurrence, Justice Douglas observed, “We deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws, no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of [twelve].”{2} 2 Furman, 408 U.S. at 253; see also Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).
Justice Marshall further admonished that:
It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated and apathy soon becomes its mate. …{3} 3 Id. at 365–66 (emphasis added).
The temporary moratorium on the death penalty’s use was short-lived. Four years later, the Court reinstated the death penalty in Gregg v. Georgia, holding that Georgia’s new capital sentencing procedures “removed the elements of arbitrariness and capriciousness condemned by Furman.”{4} 4 Gregg v. Georgia, 428 U.S. 153, 206-07 (1976). In sustaining the imposition of the death penalty, however, the Court in Gregg firmly embraced the holdings and dicta from prior cases stressing that the Eighth Amendment bars not only those punishments that are “barbaric” but also those that are “excessive” in relation to the crime committed.{5} 5 Under Gregg, a punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Gregg, 428 U.S. at 173; see also Furman, supra; Robinson v. California, 370 U.S. 660 (1962); Trop v. Dulles, 356 U.S. 86 (1958); Weems v. United States, 217 U.S. 349 (1910).
Indeed, a plurality of the Court affirmed the fundamental precept that “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment.”{6} 6 Gregg, 428 U.S. at 182 (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)).
The Numbers
The Death Penalty Information Center reports that since 1976, when Gregg reauthorized use of the penalty, there have been 1,515 executions performed throughout the United States in 25 death penalty states and by the Federal Government.{7} 7 See Death Penalty Information Center, Fact Sheet, (last updated Feb. 10, 2020) available at https://files.deathpenaltyinfo.org/documents/pdf/FactSheet.f1581367854.pdf. More importantly, however, on average 3.5 wrongfully convicted death row inmates have been exonerated each year since 1973, for an unspeakable total of 167 death row exonerations since the early 1970s.{8} 8 Id. at 2. The 167 exonerees wasted over 2,000 years of human life on death row. Since 1973, it has taken an average, innocent, death row inmate over 12 years to be exonerated, with some waiting as long as 43 years before the underlying charges are dismissed or otherwise disposed of.{9} 9 Death Penalty Information Center, Innocence Data Base (2020) available at https://deathpenaltyinfo.org/policy-issues/innocence-database.
The racial disparities that pervade the criminal justice system are tragically brought into sharp focus when examining the death penalty’s application in “interracial murder” cases. Since 1991, there have been 21 white defendants executed for the murder of black victims as compared to 256 black defendants who have been executed for the murder of white victims.{10} 10 Death Penalty Information Center, Executions by Race and Race of Victim (2020) available at https://deathpenaltyinfo.org/executions/executions-overview/executions-by-race-and-race-of-victim.
Geography also plays a determinative role in whether the death penalty is imposed in any particular case. Southern states have executed 1,241 men and women on death row as compared to the Midwest, West, and Northeast, where a total of 275 death row inmates have been executed in all three regions combined.{11} 11 Supra note 7, at 3. Texas occupies a special place in death row history, having executed a total of 569 prisoners since 1976.{12} 12 Id.
Mercifully, executions have declined significantly over the past two decades. Half of all the states have now either abolished the death penalty or have gubernatorial moratoria against executions.{13} 13 Death Penalty Information Center, State by State (2020) available at https://deathpenaltyinfo.org/state-and-federal-info/state-by-state. In 1998, among all the states and the Federal Government, 295 death sentences were imposed. However, in 2019, a total of 34 death sentences were imposed by the courts.{14} 14 See Death Penalty Information Center, supra note 10. Indeed, in Virginia, 21 prosecutors signed a letter to the State’s General Assembly urging the lawmakers to abolish capital punishment, calling the death penalty “a failed government program.”{15} 15 Open Letter by Commonwealth’s Attorneys (Feb. 3, 2020), available at https://files.deathpenaltyinfo.org/documents/VirginiaProsecutorLetter2020.pdf.
In contrast to this nationwide trend away from the death penalty, 40 execution dates have been scheduled by seven states and the Federal Government for 2020.{16} 16 Death Penalty Information Center, Outcomes of Death Warrants in 2020 (2020), available at https://deathpenaltyinfo.org/stories/outcomes-of-death-warrants-in-2020. Moreover, on July 25, 2019, after a 16-year hiatus, the U.S. Government resumed federal executions. Attorney General William Barr directed the Federal Bureau of Prisons to adopt a new single-drug lethal-injection protocol to carry out without submitting the new procedure to the public for comment.{17} 17 See Death Penalty Information Center, The Death Penalty in 2019: Year End Report, at 2 (2019) available at https://files.deathpenaltyinfo.org/reports/year-end/YearEndReport2019.pdf. At present, the Supreme Court has left in place a district court’s preliminary injunction staying the execution of the first four men who were to be executed under the new regimen. The Court’s unsigned Order said it “expected an appeals court to decide the inmates’ challenges “with appropriate dispatch.”{18} 18 See United States v. Roane Jr. et al., 589 U. S. ____ (2019); Supreme Court Won’t Allow Federal Executions to Resume, N.Y. Times, (Dec. 6, 2019), available at https://www.nytimes.com/2019/12/06/us/supreme-court-death-penalty.html.
A Failure of Justice
In 1994, in Callins v. Collins, the late Justice Harry Blackmun abandoned the Gregg Court majority, lamenting what to him had by then become self-evident:
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 simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.{19} 19 Callins v. Collins, 510 U.S. 1141, 1145 (1994).
Indeed, this ominous observation by the late justice still holds true. In 1991, Keith Tharpe was convicted in Georgia of the murder of his sister-in-law. He was sentenced to death three months after his conviction on the underlying murder.{20} 20 CNN, A Georgia Death Row Inmate Who Argued a Racist Juror Voted for His Sentence Has Died, Attorneys Say, (Jan. 26, 2020), available at https://www.cnn.com/2020/01/26/us/georgia-death-row-inmate-dies-racist-juror/index.html. Tharpe appealed, claiming that his death sentence was the result of a biased jury. In subsequent interviews with the members of Tharpe’s jury, one juror asserted that “[a]fter studying the Bible, I have wondered if black people even have souls.”{21} 21 Id. The same juror stated that there were “two types of black people: (1) black folks and (2). Ni*****.”{22} 22 Id. The juror claimed that Tharpe “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did[,]”{23} 23 Death Penalty Information Center, Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate Review, (Apr. 9, 2018) available at https://deathpenaltyinfo.org/news/black-prisoner-on-georgias-death-row-sentenced-by-racist-juror-denied-federal-court-appellate-review. and that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks[.]”{24} 24 Id. At the same time, the juror denied that race was an influencing factor in his vote for the death penalty. Tharpe died from complications from cancer before his appeal was finalized.{25} 25 CNN, supra note 20.
Even more alarming, in February 2017, Gov. Hutchinson of Arkansas scheduled eight executions to be carried out in rapid succession — two a day for four days because one of the state’s approved executions drugs was about to expire.{26} 26 Death Penalty Information Center, Lawsuit Seeks DNA and Fingerprint Testing That Could Show Arkansas Executed an Innocent Man (Jan. 29, 2020), available at https://deathpenaltyinfo.org/news/lawsuit-seeks-dna-and-fingerprint-testing-that-could-show-arkansas-executed-an-innocent-man. Ledell Lee was one of the individuals rushed to the execution chamber.
Ledell Lee was convicted for the 1993 murder of Debra Reese in Jacksonville, Arkansas, and sentenced to death. Lee maintained his innocence throughout the trial and subsequent appeals. The underlying murder conviction raised serious doubts about Mr. Lee’s guilt. There was no physical evidence directly connecting him to the murder. The state’s own experts admitted that the results of several of its forensic tests were ultimately “inconclusive,” yet the prosecution inflated the significance of its test results, leading to Lee’s conviction. During Lee’s trial, the state argued that hairs from the crime scene were “microscopically consistent” with Lee’s hair based on a visual examination conducted by its expert — a forensic method of hair comparison that has since been discredited. DNA evidence from the crime scene belonging to the killer has never been tested with modern technology.{27} 27 Innocence Project, Ledell Lee: What You Should Know About His Case and Execution (Jan. 23, 2020), available at https://www.innocenceproject.org/ledell-lee-what-you-should-know-about-his-case-and-execution. Lee’s postconviction attorney later signed an affidavit that stated he was overwhelmed by four other death penalty cases and at the same time was struggling with substance abuse issues. In the same affidavit he “recognize[d] the investigation into Ledell’s innocence was not adequate and he deserved far better than the representation I was able to provide him back then.”{28} 28 Id.
Ledell Lee was executed on April 20, 2017. Before his execution, the Innocence Project and the ACLU filed for an emergency stay so that DNA testing could be completed. The motion and stay were denied.{29} 29 Innocence Project, supra note 27. A subsequent lawsuit filed by Lee’s family argues that DNA and fingerprint evidence exists that proves Lee was innocent of the murder that sent him to death row.{30} 30 Death Penalty Information Center, supra note 26.
On Feb. 4, 2020, an Arkansas judge approved an agreement between the state and Mr. Lee’s family to allow the testing of the DNA and fingerprint evidence that was in dispute before his execution.{31} 31 U.S. News, Arkansas Judge OKs Testing of Evidence on Executed Inmate (Feb. 4, 2020), available at https://www.usnews.com/news/best-states/arkansas/articles/2020-02-04/arkansas-judge-oks-testing-of-evidence-on-executed-inmate.
Conclusion
Although the imposition of the death penalty is on the decline, in October 2019, there were 2,639 prisoners on death rows across the nation. The convictions or death sentences of 232 of these death row prisoners had been reversed pending retrial, resentencing, or completion of the appeals process, meaning 2,407 prisoners are facing active death sentences. Of these death row prisoners, 913 are in states with moratoria on executions. Each stands as a stark reminder that as a civilized nation, we cannot afford yet another failure of justice.
Clarence Darrow’s Plea for Mercy{32} 32 Closing Argument, Illinois v. Leopold and Loeb (1924), http://law2.umkc.edu/faculty/projects/ftrials/leoploeb/darrowclosing.html. bears lasting remembrance: “You may hang these boys; you may hang them by the neck until they are dead. But in doing it you will turn your face toward the past. … I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgment and understanding that all life is worth saving, and that mercy is the highest attribute of man.”
About the Author
Nina J. Ginsberg, a founding partner at DiMuroGinsberg, P.C., in Alexandria, Virginia, has practiced criminal law for more than 35 years. She has represented individuals and corporations in a wide range of matters, with a focus on national security law, white collar investigations and prosecution, financial and securities fraud, computer crime, copyright fraud, and professional ethics.
Nina J. Ginsberg (NACDL Member)
DiMuroGinsberg, P.C.
Alexandria, Virginia
703-684-4333
nginsberg@dimuro.com
www.dimuro.com
@DiMuroGinsberg