This month marks the 40th anniversary of the return of the death penalty. From 1972 to 1976 America was without capital punishment. In 1972, the U.S. Supreme Court decided Furman v. Georgia. The court ruled that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment.
At the time, U.S. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” A year earlier, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. According to The Marshall Project, Furman seemed headed in the same direction until Stewart struck a deal with Justice Byron White, who’d been on the fence about the death penalty. Stewart agreed to abandon his moral statement against the death penalty and would instead say that the problem with capital punishment was excessive arbitrariness. The deal resulted in a surprising 5-4 decision overturning the death penalty.
The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The Court suggested that states establish criteria to direct and limit the circumstances in which the death penalty would apply and to overhaul the sentencing process.
In July 1976, the U.S. Supreme Court in Gregg v. Georgia, found that three of five states that amended their death penalty statute — Georgia, Florida and Texas — did conform to the directives of Furman. The death penalty was back.
The first man executed after Gregg was Gary Gilmore of Utah. Gilmore wanted to be executed, and the state of Utah granted his wish. He was executed by firing squad on January 17, 1977. Since Gilmore, more than 1,400 men and women have been executed nationwide. Texas alone is responsible for more than one-third of those executions.
Executions steadily increased through the 1990s and then began to recede again to the present. Public support for the death penalty reached its lowest point in 1966, when only 42 percent of Americans supported the death penalty. During the 1990s as crime rates soared, support for the death penalty rose to as high as 80 percent. Since then, support for the death penalty has remained steady just above 60 percent, according to Gallup.
Executions are at the lowest level in decades. In the first half of 2016 there were 14 executions. Those executions occurred in Texas (6), Georgia (5), Alabama (1), Florida (1) and Missouri (1).
There are seven executions planned for the rest of the year, all in Texas according to the Death Penalty Information Center. Twenty-one executions would be the fewest since 1992 when there were 14 executions and a fraction of the 98 executions carried out in 1999.
Between 1973 and 2013, only 16.1 percent of people sentenced to death were ultimately executed. In other words, the chance of being executed — among defendants sentenced to death — is only about one in six. The probability of receiving the death penalty in the U.S. is miniscule. The Centers for Disease Control reported 16,121 homicides in 2013. There were 39 executions — an execution rate of approximately a quarter of one percent.
The decision in Gregg failed in limiting the circumstances in which the penalty may be applied. A California study found that 87 percent of murders are potentially eligible for the death penalty under the state’s definitions. In Colorado, the rate is 91.1 percent.
My book, “The Executioner’s Toll 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States,” examined every execution in 2010. My research led to the conclusion that the death penalty was once again arbitrary.
Arbitrary — as it was in 1972 — in the manner in which it is imposed. And today, arbitrary in the manner in which it is carried out. Twenty-one, or fewer, executions in a single year out of a pool of nearly 3,000 men and women on death row is certainly arbitrary and capricious.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.