We celebrate this day 40 years ago, when the Supreme Court, in , declared the death penalty unconstitutional.
The Court divided in 1972 as it had never done before. Nine Justices wrote nine separate opinions, with a majority of five agreeing that the death penalty was arbitrary – "freakishly" imposed on some convicted persons while others, equally as guilty, were allowed to live. Random severity is not equal justice, they said: this offends the Eight Amendment ban on cruel and unusual punishment. Worse, they found, “if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race."
Thurgood Marshall, the Court's first African-American and the grandson of slaves, wrote the lengthiest opinion, an historical and jurisprudential tour-de-force, backed with tables, graphs and citations to studies. He demonstrated that imposition of the death penalty in the United States was random, inconsistent, and a product of discrimination. Marshall’s opinion laid the framework for the debate about the death penalty for the next 40 years. The death penalty costs more; no one can show it has deterrence value; poor people accused of crime get inexperienced or bad lawyers; Black people are more likely than their white counterparts to be sentenced to death for the same offenses; and even the innocent are not safe from wrongful testimony or human error. Further, he believed with his predecessor Justice Felix Frankfurter that capital trials "sensationalize" and degrade our entire system of justice.
All nine Justices looked at the history of the Eighth Amendment’s prohibition against cruel and unusual punishment, written at a time when no one thought there was much wrong with the death penalty for murder, rape, treason, and even some property crimes. But in 1789, when the Eighth Amendment was debated in the First Congress, not only was the death penalty accepted but so were whippings, brandings, and ear croppings. No member of the Furman Court seriously argued that the standard of humane punishment should remain the same, should not evolve as the country matured. In 1910 that the understanding of what the Eighth Amendment forbids "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice." What the justices did debate was whether that moral evolution had yet reached a place where capital punishment was incompatible with the Eighth Amendment, whether the “basic mores of society “ had changed enough to render it so. And they disagreed about the role of the courts and that of the state legislators.
There was surprisingly little difference between the Justices in their views of the death penalty itself, despite their differing legal opinions about the Eighth Amendment. In fact, the conservative bloc in Furman would be considered liberal on the death penalty on today’s Court. Justice Blackmun, a dissenter who voted against finding capital punishment unconstitutional, wrote that he yielded to no one "in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty" which he said "serves no useful purpose that can be demonstrated." But neither he nor the other dissenting justices thought that the death penalty had reached a place of nearly universal condemnation, that it did not yet offend "the conscience of contemporary society," was not as yet “unanimously repudiated.” The majority believed otherwise, finding that the Court’s collective distaste for the death penalty reflected the conscience of most Americans.
Forty years ago, many people who celebrated this day thought that the era of capital punishment in the United States had come to an end. Would that it were so. Instead it turned out to be a temporary reprieve: four short years later, in , the Court allowed capital trials to resume. And where has that gotten us? The imposition of the death penalty is still arbitrary, still targets the poor and people of color, still condemns the innocent. The mentally ill are still at risk (William Henry Furman was African-American, mentally retarded, and psychotic, with some sort of seizure disorder; he was so mentally ill he was initially judged incompetent to stand trial, as he was incapable of cooperating with his lawyer.) The death penalty still costs more than a sentence of life in prison, and will always be irrevocable.
Recent repeals of capital punishment – – are among the reasons to believe that the country is catching up to most of the rest of the world in its "moral repugnance" for this barbaric penalty. But our courts seem far from the "humane justice" that might help enlighten us. For now, and for as long as we have the death penalty, the U.S. remains "fastened to the obsolete."
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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.”