Today, June 29, marks the anniversary of the U.S. Supreme Court decision in Furman vs. Georgia (1972), which overturned all existing death penalty laws in effect at the time. In Furman, the Justices ruled that the death penalty system, as it was being administered, was arbitrary, capricious, and discriminatory. Justice Potter Stewart said death sentences were as cruel and unusual as being “struck by lightning.” The Furman decision commuted the sentences of all 629 people on death row nationwide and sent states scrambling to revise their capital punishment statutes.
An America without the death penalty was short lived. Just four years later, the Supreme Court totally reversed course and found that the new death penalty laws of several states (including Texas) “promised” to make the process fairer and less arbitrary. The Court’s decision in Gregg vs. Georgia on July 2, 1976 declared the death penalty constitutional and paved the way for the resumption of executions.
We know the death penalty remains as arbitrary and capricious today as it was in 1972. Media outlets and elected officials know it, too. An editorial published this week in the Austin American-Statesman, “Texas’ death penalty beyond repair so think about ending it, judge says” (June 28, 2016) notes a dissenting opinion by Texas Court of Criminal Appeals Judge Elsa Alcala in which she questions whether the death penalty is being fairly applied and should still be deemed constitutional. According to the Statesman:
Alcala wrote that Texas courts should study whether the death penalty is unconstitutional because it is arbitrarily imposed by race, disproportionately affecting minorities, and whether excessive delays in imposing the ultimate sentence results in cruel and unusual punishment because inmates are held in solitary confinement for years, if not decades. Those inequities are reflected in state figures that show 71 percent of those awaiting execution in Texas are African American or Latino.
The editorial notes that Judge Alcala is not the first member of the Texas Court of Criminal Appeals to raise concerns about the death penalty:
Pointing out the flaws in the state’s death penalty system takes political guts, given the wide support it enjoys in Texas, topping 70 percent on a recent Gallup poll. That kind of courage has been in short supply since judge Tom Price left the state Court of Criminal Appeals in 2014. Before his departure, Price called for an end to the death penalty, saying he was haunted by a growing fear that Texas will execute an innocent inmate, if it hadn’t already. He worried aloud whether he had participated in executing an innocent person.
A growing number of religious leaders, civic organizations, law enforcement, and concerned citizens in Texas are calling for an end to this arbitrary, capricious, and error-prone form of punishment. It’s time to repeal the death penalty once and for all.