This piece originally appeared at .
The demise of the is upon us. While the Supreme Court ruled this week to allow the continued use of a controversial lethal injection drug, Justice Stephen Breyer’s sweeping invited the nation to question capital punishment’s constitutionality. If you have any doubt about the answer, just ask Henry McCollum or Paul House.
Henry McCollum was convicted and sentenced to death in North Carolina for the murder and rape of a young girl. Paul House was convicted and condemned by the state of Tennessee for raping and murdering a woman. Both men suffered from an all-too-common syndrome in death penalty cases: They were innocent. McCollum was exonerated in 2014, and the state dropped its charges against in 2009.
But in 1986, two years after McCollum was convicted and sentenced, held him up in a separate Supreme Court decision as the kind of person who demonstrates the need for the death penalty. House was Justice John Roberts’ choice in his attempt, joined by Justices Clarence Thomas and Scalia, to narrow the availability of an innocence exception to the death penalty.
Just as Justices Roberts, Thomas, and Scalia thought McCollum and House should be executed, the lower courts too often have condemned innocent people to die. No one should be killed because the government made a mistake, yet on death row have been exonerated since 1976. We know that this total, which climbs steadily every year, is much lower than the actual number of people on death row who are — or were — innocent. One study estimates that sentenced to death is innocent.
The death penalty’s innocence problem is not lost on the American public. Support for the death penalty is at its lowest point in 30 years. A today prefer life without parole to the death penalty. have repealed the death penalty in recent years. The governors of have each suspended future executions indefinitely. As a country, we exercise the death penalty less and less — more evidence that we are moving away from capital punishment. Last year, nationwide, we had the lowest number of executions in twenty years () and the fewest new death sentences in 40 years ().
As Justice Breyer noted, geography plays a huge role in who gets a death sentence and who gets life. A tiny fraction of U.S. counties — just counties out of more than 3,000 nationwide — are responsible for sentencing the majority of people to death. The justice pointed to these stark statistics: Half of all of the new death sentences from 2004 to 2009 came from less than of the counties in the country, and all of the new death sentences in 2012 came from fewer than of the counties in this country.
The death penalty is forever entwined with the history of lynching, and racial disparities continue to taint capital punishment. Many that the race of the victim drives death penalty decisions — no surprise to the BlackLivesMatter movement. When the victims are white, are far more likely to seek the death penalty, and juries are far more likely to return , than when the victims are African-American. Prosecutors routinely prevent black people from serving on .
Justice Breyer also notes that those facing death sentences typically receive poor legal representation, making death row more likely. The personal preferences of individual prosecutors can also heavily affect who lives and who dies. Together, as Justice Breyer and Ginsburg conclude, this evidence “strongly suggests that the death penalty is imposed arbitrarily.”
The death penalty is not only applied unfairly, it doesn’t even achieve its ostensible purpose: deterrence. After 30 years of research, there is no reliable evidence that executing people stops others from committing crimes. Justice Breyer summarizes this literature and then makes the common sense point: In our system, the death penalty is more likely to be overturned because of error and unfairness than carried out, and the alternative to the death penalty — life without parole — is severe, so why would we expect the threat of the death penalty to influence behavior?
In his dissent, Justice Breyer (joined by Justice Ruth Bader Ginsburg) issued an open invitation for cases that challenge the constitutionality of the death penalty. This is a demand that the supply can meet. Geographically arbitrary, racially biased, and contrary to American standards of decency, each new capital case follows a trail of injustice that will bring down the death penalty.
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PodcastDec 2024
Capital Punishment
Can Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau BellCan Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau Bell
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Press ReleaseDec 2024
Capital Punishment
Over 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death SentencesOver 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death Sentences
WASHINGTON – More than 130 civil and human rights organizations, led by the American Civil Liberties Union, Amnesty International USA, Southern Poverty Law Center, and the NAACP Legal Defense Fund, issued a letter to President Biden today, urging him to commute the sentences of people on federal death row before he leaves office. The letter highlights the moral and legal failings of the death penalty in the United States and stresses the urgency of action to prevent the potential resurgence of federal executions under an incoming Trump administration. The groups call on Biden to fulfill his campaign promise to address the irrevocably broken federal death penalty and to “bring America into a new era of moral leadership.” President Biden was the first presidential candidate to openly oppose the death penalty, and his administration issued a moratorium on federal executions. With 40 men still on death row, however, the letter emphasizes that commuting federal death sentences is the only irreversible action President Biden can take to prevent the incoming administration from attempting another execution spree. "President Biden has an opportunity to make history by addressing the racist and unjust federal death penalty system and keep an early campaign promise he made to the American people,” said Anthony D. Romero, executive director of the ACLU. “Commuting the sentences of those on death row would help end the death penalty once and for all and prevent a second execution spree by President Trump. Trump’s first act of political theater ended in the execution of 13 people. President Biden shouldn’t allow Trump to repeat that travesty." In Trump’s final months in office, his administration executed 13 people in rapid succession, more than any administration in over 120 years. The Trump administration also amended the federal execution protocol which opened the door to more brutal methods of execution, including death by firing squad, electrocution, and nitrogen hypoxia, an untested and torturous method. Below are additional comments from: Paul O’Brien, executive director, Amnesty International USA: “President-elect Trump has promised to restart and accelerate the federal death machine, just as he did in his last administration. In the span of only 6 months, the Trump administration executed more people than the 10 previous presidential administrations combined. The executions carried out in his first term demonstrated to the world how the federal death penalty is fundamentally broken and that this ultimate cruel, inhuman and degrading punishment should be abolished forever. We should take Trump at his word when he says he plans to repeat this horrific killing spree, and Biden must do what he can now to prevent it.” Janai Nelson, president and director-counsel, Legal Defense Fund: “Since our founding, LDF has been unwavering in its fight to abolish the death penalty and eliminate racial discrimination from our criminal legal system. The death penalty is rooted in slavery, lynchings, and white vigilantism and historically weaponized against people of color. From the Groveland Four in 1949 to many capital cases today, Black people are disproportionately impacted by the ultimate punishment. Commuting the sentences of the 40 individuals on federal death row is an unprecedented opportunity for President Biden to cement his commitment to remedying injustice by exercising executive clemency.” Margaret Huang, president and CEO, The Southern Poverty Law Center: “The death penalty is rooted in a deep history of racialized violence. To this day, race is still the biggest predictor of who gets sentenced to death, with Black people accounting for nearly 40% of those on federal death row, despite representing less than 12% of the adult population. And fully 70% of those on federal death row are from the South. Our nation, and particularly the communities that we serve in the Deep South, cannot achieve true racial justice while the death penalty remains in practice.” Joia Erin Thornton, executive director, FLOCC (Faith Leaders of Color Coalition): “President Biden should commute all federal death sentences because doing so would acknowledge and help redress the racial bias built into the federal death penalty system, allow government resources to be redirected to policies that actually make our communities safer, and allow the families of victims and incarcerated persons to focus on healing instead of living in legal limbo.” This letter is one of more than a dozen letters released today from hundreds of stakeholders from across the political and faith spectrums calling on President Biden to commute all federal death sentences, including Black pastors, former corrections officials, business leaders, current and former prosecutors, families who have lost loved ones to homicide, mental health advocates, and many more. All of the letters can be found here. -
News & CommentaryNov 2024
Capital Punishment
Biden Must Use Final Months in Office to Commute Federal Death SentencesBiden Must Use Final Months in Office to Commute Federal Death Sentences
In our series on how Biden can use the lame duck period to secure civil liberties and civil rights, we examine how Biden can combat President-elect Trump’s plans to greatly expand the death penalty and execute every person on the federal row. -
Press ReleaseNov 2024
Capital Punishment
National Security
Court Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into EffectCourt Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into Effect
WASHINGTON — A U.S. military court has agreed that the plea agreement reached with ACLU client Khalid Shaikh Mohammad back in August is valid and must go into effect. The judge’s decision comes three months after Defense Secretary Lloyd J. Austin III, overruled prosecutors and Brig. General Susan Escallier, the Guantánamo military commission’s convening authority, and revoked the signed plea agreement. In exchange for a guilty plea to all counts, the U.S. government agreed to life imprisonment instead of the death penalty for Khalid Shaikh Mohammad and two other defendants. The military judge’s decision follows litigation by the three defendants to enforce their agreement with the government. The negotiated plea process allows family members to get answers to long-held questions about the attacks directly from the defendants and, at sentencing, make statements about the tragic impact on them and their loved ones. The military judge has said he will next schedule a hearing for the guilty pleas to be entered. Since 2008, through its John Adams Project, the ACLU has provided capital defense support for detainees facing the death penalty in the military commissions, spending over $12.5 million to provide experienced capital defenders, mitigation specialists, investigators, and experts to the under-resourced military defense teams. Our efforts exposed unfairness, secrecy, and the ongoing role of torture in the Guantanamo military commissions, making clear that the commissions are a complete failure. The following is a statement from Anthony D. Romero, executive director of the ACLU: “By reinstating the plea agreements, Col. Matthew N. McCall rightly recognizes that Defense Secretary Austin stepped out of bounds. We are finally back at the only practical solution after nearly two decades of litigation. “The government's decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed was always the right call. For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. As a nation, we must move forward with the plea process and sentencing hearing that is intended to give victim family members answers to their questions. They deserve transparency and finality about the events that claimed their loved ones. “This plea agreement further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system. It is inhumane, inequitable, and unjust. “We also urge the U.S. government to quickly relocate the men cleared for transfer, and finally end all indefinite detentions and unfair trials at Guantánamo.”