Killing in our name: A look at the modern era of the death penalty in the United States at its 1500th execution

By: Kristina Roth, Senior Program Officer Criminal Justice

For Amnesty International there is no debate about our sentiments as the United States marked this abhorrent milestone on June 20,2019, its 1500th execution in the modern era. That same year, 1977, Amnesty convened the first international conference on the death penalty in Sweden leading to the Stockholm Declaration, calling on all governments to abolish the ultimate cruel, inhuman and degrading punishment that we call the death penalty. For the last 42 years we have unapologetically opposed the death penalty without exception, period.

As we process this moment in our nation’s grim history, let’s look at how we got here. In 1972, in Georgia v. Furman, the US Supreme Court ruled the death penalty violated the Eighth and Fourteenth Amendments of the US Constitution, arguing that it was cruel and unusual punishment, with some Justices also noting the arbitrary nature by which the death penalty was applied and the evident racial bias against black defendants. These arguments against the death penalty would go on to be and still are core to the abolitionist movement today. Four years later in Gregg v. Georgia, the Court found that the death penalty does not violate our rights not to be subject to cruel and unusual punishment overturning what had been asserted in Furman. The following year, 1977, Gary Gilmore was executed by firing squad by the state of Utah. Gilmore’s execution was the first since 1967 when Gregg brought the return of the death penalty, ending a ten-year moratorium on executions in the United States.

Since Gregg, we’ve seen peaks and valleys in the number of people executed and sentenced to die from year to year, but the overall trends over the last 42 years point to a nationwide decline. In 1999 executions reached a peak since Gregg, when US states collectively carried out 98 execution that year. In the last three years we’ve seen no more than 25 executions annually, most recently hitting that high in 2018. From the US’s 500th execution in 1998 it took seven years to get to 1,000 executions, though it took almost fourteen years to carry out the next 500 executions showing an apparent decline in pace between 2005 and 2019.

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Graphic courtesy of the Death Penalty Information Center

The Eighth amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Over the years the US Supreme Court has ruled out eligibility for certain groups of people to be sentenced to death through the Eighth Amendment’s cruel and unusual punishment clause. In Ford v. Wainwright (1986), where the Court ruled against the death penalty for the “insane”, Justice Marshall wrote in the majority opinion of the Court that it would be “savage and inhumane” to execute these individuals. In 2002, in Atkins v. Virginia, the Court determined that it would be cruel and unusual to give the death penalty to people with intellectual disabilities, at the time referred to as “mentally retarded”. In Roper v. Simmons the high Court took on the issue of the age of a defendant at the time of the crime setting 18 as the standard. In that 2005 decision, Justice Kennedy wrote that the Eight Amendment’s prohibition on cruel and unusual punishment must apply to these cases given “the evolving standards of decency that mark the progress of a maturing society”

Persistent themes have challenged the legality of the death penalty in the US and the promise of equal justice for all. In too many trials, We have seen racial bias evident at every phase of a trials where a death sentence is sought. In 1986, the Supreme Court ruled on race in the juror selection process in Batson v. Kentucky, where the Court held that prosecutors and defense attorneys cannot strike potential jurors from a pool solely on the basis of race, there must be a neutral reason for exclusion from serving on a jury. Recently, the US Supreme Court ruled in favor of Curtis Flowers, a black man on death row in Mississippi. Over the course of Curtis Flowers’ six trials, the prosecution struck 41 of 42 black people from the jury pool, the Court’s decision was informed by the Batson ruling from 1986. Today we have seen study upon study pointing to the race of the victim and that of the accused as a leading factor in deciding if the accused is sentenced to die and is in fact executed. The issue rose to prominence in 1987 in McCleskey v. Kemp, where, as a black man, McCleskey’s attorneys argued that their client’s sentence violated the Eighth and Fourteenth Amendments based on a study demonstrating that black defendants in Georgia were more likely to be sentenced to death if the victim was white. Despite this evidence, the US Supreme Court concluded that McCleskey could not prove that purposeful discrimination had led to his death sentence and upheld his death sentence. In 1990, Keith Tharpe, a black man, was sentenced to death in Georgia. After his capital case, a sworn statement from someone serving on the jury that ultimately convicted Tharpe showed racial discriminatory views towards black people. The US Supreme Court stayed Keith Tharpe’s execution on the evening it was set to take place, but later ultimately sent the case back to Georgia for further consideration. In this case, despite evidence of racist remarks from a juror, the court did not accept this as proof that that juror’s belief was the primary factor in his vote to sentence Tharpe to death. While the US Supreme Court has yet to have found this clear pattern of racial bias overwhelming, last year the Washington State Supreme Court found otherwise. With the help of a state-based study from the University of Washington conducted by Katherine Beckett and Heather Evans, the Washington State Supreme Court ruled the death penalty was unconstitutional because it was applied in an arbitrary and racially biased manner within the state of Washington. Across the United States, too many people experience discrimination in the criminal justice system putting justice for some out of reach. We all have the same right to live no matter what zip code we come from or the color of our skin.

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Graphic courtesy of the Death Penalty Information Center

Other factors in our justice system have shown the arbitrary nature of the application of the death penalty. Whether comparable defendants may be sentenced to life or death has shown to be a challenge in the state of Florida, in 2018 Amnesty International published a report, USA: Darkness Visible in the Sunshine State, on the death penalty in Florida. In 2016, the US Supreme Court ruled in Hurst v. Florida that Florida’s capital sentencing scheme was unconstitutional because juries only have an advisory role to Judges on whether someone receives the death penalty as punishment following a conviction. This bucked the 2002 Ring v. Arizona decision that found that the US Constitution requires juries rather than judges to make the factual finding necessary to sentence a defendant to death. Also, in light of the Hurst decision, Florida became one of the final states to require a unanimous jury to sentence a person to die, meaning that, prior to this decision, a person could be sentenced to death by only seven of 12 jurors. After the state changed their sentencing scheme to comport with the Ring decision, it only allowed for partial retroactivity for those who were already sentenced to die under the previous, unconstitutional scheme. Florida determined it would only reconsider cases that had resulted in a death sentence from a split jury, in which the death sentence was issued after 2002.

The death penalty is an irrevocable punishment because there is no undoing the finality of an execution. A 2014 study from the National Academy of Science estimated that at least 1 in 25 people on death row are innocent. 166 people have been exonerated from death row in the modern era and there is no telling how many more wrongly convicted, innocent people are living on death row now, nor how many innocent people have been executed for crimes they did not commit.

Activist in New Hampshire rally outside the Capitol in Concord before the legislature voted to repeal the
death penalty. Photo credit Scott Langley

In 1977, 42 states allowed a for a sentence of death to be imposed. Today, 21 states have abolished death penalty and 4 more have a moratorium on executions issued by their governors, leaving capital punishment on the menu in just half of the country. In 1981 The Washington, D.C. City Council voted to eliminate the death penalty as a punishment. Eleven years later, at the request of Congress, the District put the issue of death penalty on the ballot, where voters approved of abolition two to one. Next, Rhode Island abolished in 1984. While the Court winnowed groups of people as death eligible for execution, the US also took steps backward.

In 1996, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) after the 1993 World Trade Center bombing and 1995 Oklahoma City bombing. Among many things, AEDPA cut down the amount of time a capital defender has to file for federal habeas corpus relief on behalf of their client and it barred reconsideration of legal and factual issues already ruled upon by the state courts with few exceptions. This law has made it challenging to get relief on issues that were not raised before a state court. Though, with a setback came a few steps forward. Over twenty years after Rhode Island abolished their death penalty, state legislatures started to take up the issue. In 2007, New Jersey repealed its death penalty, followed by New Mexico, Illinois, Connecticut, Maryland, Washington and just earlier this year New Hampshire. States are increasingly debating not only why the death penalty violates human rights, but, that the only way to eliminate an innocent person from being executed is to eliminate the death penalty all together, that it is applied in a racial discriminatory way, it is applied to the most vulnerable rather than the worst of the worst, it is applied arbitrarily, it does not deter crime more than life in prison, it is infrequently used and costly to maintain, and people all over the political spectrum are seeing themselves as death penalty abolitionists.

My hope is that in marking this disgraceful milestone in 2019 we come to an awakening about the death penalty here in the USA. In Amnesty International’s over 40 years of global campaigning to abolish the death penalty, we have long held that it is the ultimate denial of human rights and is long overdue to come to an end, here and everywhere. We must act boldly and not only strike death sentences and executions from the modern parlance, but dream bigger. Amnesty International shall remain committed to not only ending the death penalty in the US but moving all condemned individuals off death row whether they are in a state with or without a death penalty. It is past time to re-evaluate our system of punishment and ask what our society could be like if our prison system strived for our commitment to international law, with rehabilitation over pure retribution as our ultimate goal.

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