When the Supreme Court reinstituted the death penalty 35 years ago, it did so provisionally. Since then, it has sought to articulate legal standards for states to follow that would ensure the fair administration of capital punishment and avoid the arbitrariness and discrimination that had led it to strike down all state death penalty statutes in 1972.
As the unconscionable execution of Troy Davis in Georgia last week underscores, the court has failed because it is impossible to succeed at this task. The death penalty is grotesque and immoral and should be repealed.
The court’s 1976 framework for administering the death penalty, balancing aggravating factors like the cruelty of the crime against mitigating ones like the defendant’s lack of a prior criminal record, came from the American Law Institute, the nonpartisan group of judges, lawyers and law professors. In 2009, after a review [ http://www.ali.org/doc/Capital%20Punishment_web.pdf ] 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.
Those biases are driven by race, class and politics, which influence all aspects of American life. As a result, they have made discrimination and arbitrariness the hallmarks of the death penalty in this country.
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.
The problems go on: Many defendants in capital cases are too poor to afford legal counsel. Many of the lawyers assigned to represent them are poorly equipped for the job. A major study [ http://www2.law.columbia.edu/instructionalservices/liebman/ ] done for the Senate Judiciary Committee found that “egregiously incompetent defense lawyering” accounted for about two-fifths of the errors in capital cases. Apart from the issue of counsel, these cases are more expensive at every stage of the criminal process than noncapital cases.
Politics also permeates the death penalty, adding to chances of arbitrary administration. Most prosecutors in jurisdictions with the penalty are elected and control the decision to seek the punishment. 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.
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