The editorial begins by reminding us that the reinstatement of capital punishment in Gregg v Georgia was done so "provisionally" and has attempted to give states guidance to avoid the "the arbitrariness and discrimination" that had led the Court four years earlier in 1972 to strike down all capital punishment statutes in Furman v Georgia.
Last week we saw the atrocity of the execution of Troy Davis. The editorial says that underscores that
the court has failed because it is impossible to succeed at this task. The death penalty is grotesque and immoral and should be repealed.
This is an editorial that should be widely read and distributed. It should be sent to every legislator and executive at the state and federal levels. It may not make a difference, but it should.
Allow me to offer a few selections to illustrate its force.
The editorial informs - since few will know - that the framework established in Gregg v Georgia came from the American Law Institute, a "nonpartisan group of judges, lawyers and law professors." They came up with the procedure of balancing aggravating versus mitigating factors in determining whether the death penalty should be given during the separate penalty phase after conviction was reached on the primary evidence.
In 2009, after a review of decades of executions, the group concluded that the system could not be fixed and abandoned trying.
Sentencing people to death without taking account of aggravating and mitigating circumstances leads to arbitrary results. Yet, the review found, so does considering such circumstances because it requires jurors to weigh competing factors and makes sentencing vulnerable to their biases.
As the editorial makes clear, those biases include race, class and politics. Thus the application of a capital sentence is still rife with discrimination and arbitrariness:
For example, two-thirds of all those sentenced to death since 1976 have been in five Southern states where “vigilante values” persist, according to the legal scholar Franklin Zimring. Racism continues to infect the system, as study after study has found in the past three decades.
For those too poor to afford counsel on their own, the problems get worse with the low quality of assigned counsel:
A major study done for the Senate Judiciary Committee found that “egregiously incompetent defense lawyering” accounted for about two-fifths of the errors in capital cases.
Not only is there a disparity among states, given the elected nature of chief prosecutors, there are also often great disparities within states:
Within the same state, differing politics from county to county have led to huge disparities in use of the penalty, when the crime rates and demographics were similar. This has been true in Pennsylvania, Georgia, Texas and many other states.
Surely by now many know of the numbers of those sentenced who were not executed because of DNA and other evidence often not available at the time of trial. By now there should be little doubt that we have executed those who were innocent of the crimes for which they died, even as prosecutors seek to block review of cases where they obtained capital sentences lest the entire edifice of capital punishment collapse if the people were to react in horror at the idea we have executed innocents.
Although here I must interject a caution - so long as those innocents can somehow be classified as "different" too many in this country are likely to simply shrug their shoulders as they do at those civilians who die as "collateral damage" in our continued military endeavors, now with the use of remotely-piloted drones against supposed terrorist targets. It is perhaps a sign of how low the moral standards have sunk in this country, ironically at a time when the religious right has seen a new ascendance, particularly within the military.
There are two sentence from the final paragraph with which I will conclude. I agree with them, but unfortunately I do not see similar agreement as possible from the Supreme Court, where at least four of the Justices are firmly committed to the death penalty and Anthony Kennedy lacks the courage of those on the Court in the 1970s who at least were willing to temporarily ban capital punishment. The reinstatement in the Gregg decision was in large part due to the pressure from politicians and a riled up public. We use fear of crime as a means of obtaining political power, and thus as a society have applied the death penalty to ever increasing categories of crime, even though the statistics are clear that states with the death penalty in force do not thereby obtain a lower rate of violent crime.
So let me offer those final two sentences:
All but a few developed nations have abolished the death penalty. It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible.
Then let me repeat what we should acknowledge: the death penalty cannot be made to comply with the Constitution and is in every way indefensible