| THE NEW DEATH PENALTY
In 1972, following numerous legal appeals and two decades of declining executions, a bitterly-divided US Supreme Court ruled in Furman V. Georgia that all existing state DP statutes were unconstitutional, and the Court commuted all death sentences in the US to prison sentences consistent with particular state laws. The majority in the 5-4 decision were all justices appointed by earlier Presidents [Douglas (FDR); Brennan and Stewart (Eisenhower); White (Kennedy); Marshall (Johnson)]. The four dissenting justices, Burger, Renquist, Powell, and Blackmun had all been appointed by the current president, Richard Nixon. In its rationale for abolishing the DP, the Court pointed out that death sentencing in the various states was arbitrary, capricious, and "probably" racially discriminatory: - arbitrary - rarely imposed, unpredictable and irrational, "like being struck by lightening" - capricious - cases not treated seriously, poor defendants unjustly sentenced to death. - racially discriminatory � the only pattern was poor/minorities accused of crimes against white victims. They also argued that the DP had become an "embarrassment" to the US legal system, obviously not taken seriously as a deterrent because it was so rarely used, and with no other policy purpose. They also argued that the DP was increasingly being abandoned in Europe for pretty much the same reasons. The four dissenting justices, all conservative Republican appointees and supporters of the core conservative principle of �states rights,� argued that the Federal government had no right to interfere in the legal systems of the states and charged that the court was improperly "legislating, not adjudicating" � that is, making new laws rather than interpreting laws made by legislatures. The Political Context of Furman After WW2, the Federal government massively increased its intervention in areas that had previously been left to the states. Much of the federal intervention related to issues of equality under the law raised by the civil rights and feminist movements. 1948 President Truman ordered full racial integration of the US military (by Executive Order). 1954 Brown v. Board of Education (the Supreme Court ordered school desegregation). 1960's Civil Rights, Voting, Housing, Public Facilities, etc. + criminal rights (�due process revolution�). Most of the country was "ready" for these changes � they represented the modernization of the US legal and political systems. But in the south, resistance to the changes by dominant whites was widespread. In the south, Democrats had been dominant since the Civil War, but Republican Richard Nixon used a new "southern strategy" to appeal to white voters and win the presidency in 1968. The southern strategy was based on support for states rights and opposition to the civil rights and feminist movements. By 1972, Nixon had appointed four justices to the Supreme Court - Burger, Renquist, Powell, and Blackmun � and the Court had become increasingly split between the older moderate justices (both Republican and Democratic appointees) and the new Nixon appointees over civil rights issues, women's equality, abortion, voting rights, criminal rights, etc. It was now that DP cases finally arrived at the Court and the Furman majority was basically the pre-Nixon Supreme Court. The Response to Furman (1972-1976) The Furman ruling set off a backlash against the Court similar to that of other civil rights, abortion, and criminal rights rulings. Several southern states quickly passed new DP statutes and began death sentencing again. These new laws led to many death sentences, but many of these sentences were later thrown out by federal and state appeals courts. Some of the southern states, most notably Georgia, used Furman as a guide in writing their new statutes and proposed several reforms designed to �correct� the arbitrary, capricious, and discriminatory aspects of the DP pointed out by the Furman majority. Several southern states argued that their reforms would make their DP a fair and rational policy. By 1976, the "Nixon dissenters" had picked up a fifth justice (Douglas retired and President Ford appointed John Paul Stevens) and now the Court had a new conservative majority. Two of the more conservative justices from the Furman majority joined these five justices in reinstating the DP in 1976 in Gregg v. Georgia, but they allowed only statutes that included the "fair and rational" reforms (guided discretion, bifurcated trials, automatic review) that had been the hallmark of the Georgia law. There were still many questions to be resolved regarding the "new DP" and the Court used judicial review (the appeals process) to address many of these issues and reshape the DP system over the next 30 years. The key court cases through which the Court carried out this task are discussed below. Key post-Furman Court Cases Gregg v. Georgia 1976 - In a 7-2 decision, the Court ruled that some of the new state DP statutes were constitutional. The Court rejected mandatory death sentencing and upheld only systems with three key reforms that promised to correct the flaws described in Furman: - Guided discretion (the use of aggravating and mitigating circumstances in death sentencing) - Bifurcation (separation into two trials, one to decide guilt/innocence, a second to decide sentence) - Automatic review (appeals courts would review all cases to ensure fairness) The �Gregg majority� included Burger, Renquist, Powell, Blackmun, Stewart, White and Stevens. The two dissenters, Brennan and Marshall, continued to argue that any DP was unconstitutional. Coker v. Georgia 1977 - In a 7-2 decision, the Court ruled that the DP for rape is "grossly disproportionate and excessive" punishment and thus unconstitutional. In effect, this case limited the DP to murder only, and this has not been successfully challenged. Only Burger and Renquist stuck by the hard-core �states rights� conservative position in Coker, arguing that states should be allowed to experiment with the DP for virtually any crime. Strickland v. Washington 1984 � Among the many serious problems with the �old DP� was the unwillingness of states to provide competent (and expensive!) legal representation for indigent defendants (almost all DP defendants). In Strickland, the Court declined to set any clear standards for representation of poor defendants, holding that performance of defense counsel must be evaluated in light of "reasonableness under prevailing professional norms" with a "strong presumption of competence." Further, even if a defendant proved that defense counsel was so incompetent that Strickland was violated, the defendant still had to prove that the results (verdict and/or sentence) would have been different with competent attorney, a point that is almost impossible to prove. The bottom line is that states can do virtually whatever they want to in providing attorneys to indigent defendants, and the results have been disastrous. Most DP states remain unwilling to provide (pay for) appropriate attorneys and the result is incompetent attorneys and sham trials like the "sleeping lawyer" cases in Texas. McCleskey v. Kemp 1987 � Another serious and long-term problem with the old DP was a history of extreme racial and ethnic discrimination, aimed primarily at minorities accused of crimes against whites. In aother bitterly-divided 5-4 decision, the Court upheld Georgia's death penalty system despite evidence of massive racial discrimination (e.g., blacks accused of killing whites were 22 times more likely to be sentenced to death than blacks accused of killing other blacks). In effect, the Court ruled that racial discrimination is not unconstitutional. The McCleskey majority argued that McCleskey did not prove discrimination in his particular case, or that the state intended to discriminate, or that McCleskey's sentence was disproportionate or arbitrary, and that racial "disparities" like those in Georgia are unintended by-product of discretion, and legislatures should deal with this problem, not the courts. The dissenters pointed out that there was a clear influence of race on death sentencing consistent with a long history of racial discrimination in Georgia, especially against blacks accused of crimes against whites, and that this is a blatant violation of equality under the law. The bottom line is that the Court refused to fix one of the major flaws in the DP and death sentencing remains massively discriminatory in most states today. Herrera v. Collins 1993 � In 1993, a Texas case reached the Court in which a credible claim of innocence was involved, but the new evidence of innocence had been discovered after the deadline for introduction of new evidence had long passed. In yet another bitterly-divided 5-4 decision, the Court ruled that it is constitutional to execute a prisoner even if new convincing evidence of innocence arises after a statutory deadline for introduction of new evidence has passed. In effect, the Court ruled that evidence of actual innocence is not adequate to stop an execution. The Herrera majority argued that DP cases must end at some point and thus time limits are constitutional. They suggested that the state commutation process (usually a state governor) was the appropriate venue for this problem, and not the courts. The dissenters argued that allowing states to execute innocent people is unacceptable and, in the words of Justice Harry Blackmun, originally one of the Nixon appointees who supported the DP, "comes perilously close to simple murder." Felker v. Turpin 1996 - In Felker, the Court upheld the constitutionality of the new Anti-Terrorism and Effective Death Penalty Act of 1996 which established a new system for expediting the DP appeals process. The Act would allow only one complete round of appeals ("one bite at the apple") with time limits for filing appeals and rulings by judges. In effect, this would limit appeals and expedite the execution of prisoners following death sentences. Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |