Maurice Chammah in “Let the Lord Sort Them: The Rise and Fall of the Death Penalty” says, “In 1959, there had been 124 murders in Harris County, Texas, which encompassed Houston, but only three people sentenced to death.” Arbitrariness was one reason the Supreme Court, in a 1972 case that generated opinions from all nine justices (cumulatively, 233 pages), ruled that capital punishment in all 41 states that administered it was unconstitutional.
By 1976, states accommodated enough of the court’s criticisms to revive capital punishment under laws that would prevent arbitrariness by requiring consideration of “aggravating” or “mitigating” factors about a murderer (e.g., youth, low IQ). And of particular kinds of murders (e.g., if the victim was a child or a police officer). And whether the crime was especially “depraved” or “cruel.” But these complexities lengthened trials and multiplied grounds for appealing the capital sentences of those living on death rows. This increased the lightning-strike appearance of randomness of the few executions of murderers after an average (in 2018) of 19.8 years from sentencing to death. Today’s capital punishment regime bears no resemblance to practices when the Eighth Amendment was written in the 18th century: Then death was not inflicted decades after the crime.
In 2015, in a 41-page dissent in a capital punishment case, Justice Stephen G. Breyer argued for revisiting, on the basis of experience since 1976, the question of whether capital punishment is incurably cruel and unusual. He cited evidence that “innocent people have been executed.” He noted 115 exonerations in capital cases since 2002, including six death row inmates exonerated in 2014 based not on flawed trials but “on actual innocence.” He said researchers estimate that flawed forensic testimony and other factors indicate that 4 percent “of those sentenced to death are actually innocent.” “Numerous studies,” he said, conclude that “individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.” And: Why “does one defendant who participated in a single-victim murder-for-hire scheme . . . receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?”
Chammah notes that George Washington, Thomas Jefferson and John Adams read Cesare Beccaria’s 1764 essay “On Crimes and Punishments,” whose arguments against capital punishment inspired the Philadelphia doctor Benjamin Rush, a signer of the Declaration of Independence, to suggest that capital punishment “lessens the horror of taking away human life and thereby tends to multiply murders.” Today, the conservative case against capital punishment is fourfold:
The power to dispense death cloaks government with dangerous majesty. (In “Hitler’s First Hundred Days,” Peter Fritzsche reports sudden German enthusiasm for capital punishment by hand-held ax because its “swift, direct action” emphasized the “superiority of the state.”) Because government-inflicted death cannot later be reconsidered on the basis of new evidence, it must be administered with extraordinary competence, but do not count on this: Capital punishment is a government program. The labyrinthine legal protections surrounding the death penalty guarantee that it will be too infrequent to serve the penological purpose of deterrence. And the argument that there are especially heinous crimes for which death is the morally proportionate punishment collides with the disproportionate drain — millions of dollars — on communities’ and states’ resources.
Last month, Virginia became the first Southern state to abolish capital punishment. Today, 53 percent of Americans live either in the 23 states that have abolished it or the three others where governors have imposed a moratorium on executions. Twelve states with death penalty laws have not executed anyone for at least a decade. And a majority of Americans oppose capital punishment for murder when prompted to consider the alternative of life in prison without the possibility of parole.
Capital punishment is ending because of a wholesome squeamishness that reflects (in Chief Justice Earl Warren’s words) society’s “evolving standards of decency.” And because attempts to make it neither cruel nor unusual have made its implementation increasingly capricious, and hence morally absurd.