Today, June 29, 2022, marks the 50th anniversary of the landmark U.S. Supreme Court decision 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.
Read “Death penalty’s 50-year rise and fall since Supreme Court struck it down,” published in the Washington Post on July 6, 2022.
Regrettably, an America without the death penalty was short lived. Just four years later, the High Court reversed course and found that the new death penalty laws of several states (including Texas) “promised” to make the process fairer and less arbitrary.
Yet the death penalty remains as arbitrary, capricious, and discriminatory today as it was in 1972.
Arbitrary: Geography is the number one determinant of whether someone receives a death sentence. The decision to seek the death penalty rests within the sole discretion of the elected district attorney of each county. Just three counties account for more than half of the 197 people currently on death row in Texas.
Capricious: The Texas Department of Criminal Justice (TDCJ) has changed its Execution Protocol twice in the last three years. First, it removed all chaplains from the execution chamber. Then it allowed for a TDCJ chaplain or a spiritual advisor of an individual’s choosing to be present in the chamber during the execution but would not permit them to pray aloud or offer physical comfort during an individual’s last moments. The U.S. Supreme Court considered a challenge to this latest policy and determined in March 2022 that individuals facing execution in Texas have the right to the free exercise of their religious beliefs. TDCJ now is considering religious requests on a case-by-case basis.
Discriminatory: Even as death sentences in Texas decline, they are still applied disproportionately to people of color. Over the last five years, nearly 40% of death sentences have been imposed on Black men. Outrageously, individuals who harbor racially biased views continue to be allowed to serve on juries in death penalty cases.
Inconsistencies and dysfunction plague Texas’s capital punishment system at a tremendous cost. Individuals like Melissa Lucio, whose cases are rife with errors, continue to come within days of being put to death. Others, like Billy Joe Wardlow and Carl Wayne Buntion, have been executed after spending decades on death row.
In this alarming piece in Slate, Professor Joseph Margulies cites 108 people who were executed by the State of Texas despite a clear constitutional violation. This includes people with intellectual disability and those whose juries were not given the opportunity to fully consider mitigating evidence. Read “When Will Texas Stop Executing People Whose Death Sentences Are Unconstitutional?”
The only way to ensure that the death penalty is not arbitrary, capricious, and discriminatory is to end it entirely. Join TCADP as we pursue this life-saving and life-affirming mission.