Commentary: Revival of the death penalty has been a failure

By Marc Bookman

Forty years ago, on July 2, 1976, the U.S. Supreme Court put its imprimatur on capital punishment in the case of Gregg v. Georgia.

This was a surprising development. Only four years earlier, the court had struck down death-penalty laws across the country, declaring the death penalty "cruel and unusual in the same way as being struck by lightning is cruel and unusual." In other words, the laws did not target those most deserving of the maximum punishment, instead making death sentences a random occurrence. The states wasted no time reconfiguring their statutes, however, and in 1976, most of the new statutes passed constitutional muster. The modern death penalty was born.

The Gregg opinion reads today like an ancient medical text advocating the use of leeches. In commending the new laws, the opinion put great stock in the concept of proportionality, noting that having a state court reviewing and comparing death sentences "substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury." Eight years later, however, the court said that such review was not necessary, and in 1997, Pennsylvania did away with it.

Even more anachronistic is the faith placed in a questionnaire asking the trial judge whether race played a role in the case and whether the evidence forecloses "all doubt respecting the defendant's guilt." The court labeled the questionnaire an "important aspect" of the Georgia legislative scheme making the death penalty more reliable.

We now know better about the effectiveness of such questions. In the early 1990s, the advent of DNA evidence brought about the exonerations of hundreds of convicted men and women, including 20 from death row; and in 1987, the court was confronted with compelling evidence of race discrimination in capital sentencing from the very same state that the Gregg case came from, Georgia. The court denied the claim and noted, almost as an afterthought, that to accept the evidence of systemic racism in capital cases, "taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system." This prompted Justice William Brennan's immortal rejoinder that the majority's analysis suggested a "fear of too much justice."

Has the death penalty lived up to the long-ago expectations of the Supreme Court? Hardly.

First of all, it's important to note that even the Gregg decision would look different today - two justices from the majority decision, Harry Blackmun and John Paul Stevens, ultimately changed their minds about capital punishment, both concluding that attempts to fix the laws had failed. A Blackmun turn of phrase proved to be one of the most memorable in court history: "From this day forward, I no longer shall tinker with the machinery of death."

But Blackmun's heartfelt abandonment of his earlier views sat poorly with the late Justice Antonin Scalia, who accused Blackmun of selecting "one of the less brutal" murders for his declaration. Instead, Scalia suggested, he might have picked the case of McCollum v. North Carolina, in which an 11-year-old girl was brutally raped and murdered. Ironically, even Scalia's opinion might have been different had it been written in 2014 rather than 1994. That was the year that Henry Lee McCollum was exonerated by DNA evidence after spending 30 years on death row.

More recently, Justices Stephen Breyer and Ruth Bader Ginsburg have overtly criticized Gregg and its perspective that "the constitutional infirmities in the death penalty could be healed." Detailing a laundry list of failures - race, gender, and geographical discrimination, a lack of defense resources, excessive delays, and (the main reason for the delays) the risk of executing an innocent person - the justices found it "highly likely" that capital punishment violates the Eighth Amendment. They supported their argument with graphs that indicate a sharp decline over almost 20 years in death sentences imposed, executions, and the ever-shrinking percentage of the population that lives in states where executions are conducted.

Yet even in this national landscape, Pennsylvania stands alone in the dysfunctional way it approaches capital punishment. Death sentences have decreased dramatically. Pennsylvania has moved from the fourth-biggest death row to fifth, not because of executions but because of a steady stream of death-sentence reversals. Indeed, Pennsylvania hasn't seen a single involuntary execution in 54 years; the only three executions that have taken place, all in the 1990s, were men who gave up their appeals and asked the state to execute them.

These issues have not gone unnoticed in Pennsylvania. Chief Justice Thomas Saylor said there was "much evidence that Pennsylvania's capital punishment regime is in disrepair." Gov. Wolf, recognizing the endemic problems now well documented, imposed a moratorium on state executions more than a year ago, attributing his decision to "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive." He will revisit the issue after reviewing the recommendations of a bipartisan Senate-sponsored study of capital punishment.

This is a far cry from the 40-year-old conclusion in Gregg that the new death penalty laws protected against disproportionality and arbitrariness. We now have incontrovertible data to show the despicable influence of race on sentencing, the randomness of an under-resourced system, the horror of wrongful convictions, and the excessive cost of correcting errors.

Many mistakes have been made. All that's left is to admit that we're the ones who made them. The experiment is over; the death penalty has proven to be a failed government program.

Marc Bookman is director of the Atlantic Center for Capital Representation in Philadelphia. mbookman@atlanticcenter.org