DPIC Report: 35 Years After SCOTUS Reinstates Death Penalty, Application Still Arbitrary

Let me emphasize, as I always do, that one’s moral position on the death penalty is inevitably a personal one. I am morally opposed to the death penalty. You may not be. That is irrelevant to what I am going to present here: according to a report by the Death Penalty Information Center, Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976 (.pdf), the application of the death penalty… who gets convicted, who is assessed the death penalty and for what crimes, who receives an adequate defense, whether deterrence is served, etc. … is still as arbitrary as it was in 1972 when the U.S. Supreme Court ruled, in Furman v. Georgia, that (quoting the linked document) “the death penalty was being administered in an arbitrary and capricious manner that amounted to cruel and unusual punishment.”

So… what has changed since 1976, when the Supremes, in Gregg v. Georgia, reinstated the death penalty?

Essentially… NOTHING.

Well, nothing that serves justice, in any reasonable meaning of the term. Despite some early Court decisions restricting executions of rapists and of the insane, Court decisions in recent years have yielded some strange and one might almost say bloodthirsty results: rejecting statistical evidence as proof of racial discrimination in death penalty cases, allowing execution of people with severe mental disabilities, and… this one is truly unconscionable… allowing execution of 16- and 17-year-olds. America has a sordid history of executing people as young as 12 years old, and I recall (though I cannot find the ref at the moment) that a few years ago a Texas legislator proposed the reintroduction of the execution of children. The problem here, aside from the sheer nausea-inducing value of such executions, is that the concept of adulthood is well-grounded in biology: children, even teens, do not have the physical development of their brains to guarantee reliable judgment even in life-or-death matters. Executing a child is like executing a mentally deficient adult… oh, wait, America now does that, doesn’t it, thanks to Mr. Justice Scalia.

Then there’s the matter of deterrence. The argument against capital punishment shows, over and over again, that adjacent states with and without the death penalty indeed have different rates of capital crimes: the states without have lower rates. Spare me the clichéd response that at least the executed killer will not kill again: by that argument, we could avoid all murders simply by executing everyone who might commit murder… you, for instance, after reading this post?

Speaking of this exceedingly long post, why am I motivated to write it? Do I have any personal involvement with death penalty cases? No. Well, yes, in a very indirect way: I spent two days of my life being quizzed as a prospective member of a jury in a capital case. It was clear after the first two questions in voir dire that I would not be chosen, but there was nothing for it but to grit my teeth and waste those two days. The jury eventually chosen included a woman who had said, “I believe in the Bill of Rights… except for drugs.” Hang ’em high, lady, but leave me out of it!

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