The death penalty: Still arbitrary, capricious, and discriminatory

July 2 marked the anniversary of the U.S. Supreme Court decision Gregg v. Georgia (1976), which upheld the newly crafted death penalty statutes of several states (including that of Texas) and paved the way for the resumption of executions. Just four years earlier, the Court had ruled in Furman v. Georgia (1972) that the death penalty system, as administered at that time, was arbitrary, capricious, and discriminatory – as random as being struck by lightning. With the Gregg decision, however, the justices reversed course and took the position that the death penalty did not offend “the evolving standards of decency which mark the progress of a maturing society.”

In reality, the death penalty is no less arbitrary or any fairer today than it was in 1972. To date, 138 individuals (including 11 in Texas) have been released from death rows nationwide due to evidence of their wrongful conviction. Although the State of Texas accounts for more than one-third of all U.S. executions since 1977, more than half of all Texas counties have not sent a single person to death row. And cases like those of Hank Skinner, Claude Jones, and Cameron Todd Willingham continue to raise doubts about the reliability of the criminal justice system – so much so that according to a national poll conducted earlier this month by Rasmussen Reports, 73% of Americans are at least “somewhat concerned” that some people may be executed for crimes they did not commit, including 40% who are “very concerned.”

These realities led the American Law Institute last fall to withdraw a section of its Model Penal Code concerned with capital punishment because of the “current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

Such concerns have impacted members of the Supreme Court, as well. Retiring Justice John Paul Stevens was part of the majority in the Gregg decision. His views on the death penalty evolved tremendously over his three decades as justice, however, and he became a consistent vote in favor of narrowing the application of the death penalty and, more recently, in questioning its very utility. In 2008, Justice Stevens wrote:

“… I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” (Baze v. Rees, April 16, 2008)

A growing number of religious leaders, murder victim family members, criminal justice professionals, elected officials, and concerned citizens in Texas have reached the same conclusion and are calling for an end to this arbitrary, capricious, and error-prone form of punishment. Texas District Attorneys are seeking the death penalty – and Texas juries are returning it – far less often. In fact, the rate of death penalty sentences handed down annually has decreased 60% over the last 6 years.

Texas has other means to punish the truly guilty and protect society without resorting to state killing. The alternative of Life in Prison without the Possibility of Parole (LWOP) enables our state to punish guilty offenders, protect society, and guard against the risk of convicting or executing the innocent. LWOP was not an available option in Texas in 1976. It is today.

Our “maturing” society does not need the death penalty, with its arbitrariness and its attendant possibilities for mistakes. It is time to do away with this fatally flawed and unnecessary punishment and repeal the death penalty.