29 marks the fortieth anniversary of the landmark
Supreme Court case Furman v. Georgia. In Furman, the high court
abolished the death penalty on the grounds that it
violated the Eighth Amendment prohibition on cruel
and unusual punishment. The decision also barred the
use of capital punishment for rape convictions.
Had the death penalty been a product, it would
have been judged as shoddy, defective and unreliable
fact that the State may seek retribution against those
who have broken its laws does not mean that retribution
may then become the State's sole end in punishing.
Our jurisprudence has always accepted deterrence in
general, deterrence of individual recidivism, isolation
of dangerous persons, and rehabilitation as proper
goals of punishment,” wrote Justice Thurgood
Marshall in his concurring opinion. “Retaliation,
vengeance, and retribution have been roundly condemned
as intolerable aspirations for a government in a free
addressed the issue of inevitably executing the innocent.
“No matter how careful courts are, the possibility of perjured testimony,
mistaken honest testimony, and human error remain
all too real. We have no way of judging how many innocent
persons have been executed, but we can be certain
that there were some,” he noted.
there were many is an open question made difficult
by the loss of those who were most knowledgeable about
the crime for which they were convicted. Surely there
will be more as long as capital punishment remains
part of our penal law,” Justice Marshall added.
punishment was reinstated with Gregg v. Georgia
in 1976, but at least for several years there were
no executions in the U.S.
years after Furman, problems still plague the
death penalty, when in reality the problems never
went away. And as long as there are executions, we’ll
continue to have a problem.
writing is on the wall for those who offer to read
it. Recently the Arkansas Supreme Court struck down the death penalty law in
that state, finding it is unconstitutional for the
department of correction to make policy by deciding
execution procedures and what lethal injection drugs
to use. Rather, it is the legislature’s job to decide
that, and in any case, Arkansas has not executed since 2005. Although
the court did not find lethal injection or the death
penalty itself unconstitutional in the 5-2 decision, state lawmakers would have to go back to the
drawing board and write a new law. Actually, they
should let it go and abandon the practice altogether.
His innocence was proven posthumously by a Columbia
law professor 23 years after the execution
North Carolina, the state legislature passed a bill that would gut
the Racial Justice Act. Signed into law by Governor Bev Perdue
in 2009, the Racial Justice Act allowed death row
convicts to challenge their sentences on the grounds
that racial bias was a significant factor in their
sentencing. The new scaling back of the law, if passed,
would prohibit death row inmates from relying solely
on statistics. This would effectively remove the “racial”
and “justice” components of the original law, leaving
exactly what conservatives and prosecutors wanted
in the first place. And if the governor signs this
regressive legislation, the Tarheel State will embrace its legacy of racial injustice, and demonstrate
its failure to resist emulating its more backward
neighbor to the South. Remember that when prosecutors
keep blacks off juries due to racial motivations,
both white defendants and defendants of color are
in Texas, the state’s Democratic Party passed a platform
calling for abolition of the death penalty. And Hank Skinner - a Texas
death row inmate who was granted a stay of execution
in November in order to conduct a DNA test - has been
given the green light to proceed with the testing.
Skinner’s exoneration came as a result of pleas from
death row exonerees and abolition activists. The problem with DNA testing
is that key evidence in the case is missing. How convenient.
how typical of Texas,
where a man named Cameron Todd Willingham was executed
in 2004 for the arson murder of his three young daughters
- even though no arson occurred. Another man, Carlos DeLuna, was put to death
for a murder another man he resembled bragged about
committing. Moreover, his innocence was proven posthumously
by a Columbia
law professor 23 years after the execution.
If the governor signs this regressive legislation,
the Tarheel State will embrace its legacy of racial injustice
Texas is the place where an appellate
judge wouldn’t allow lawyers to file a last minute
appeal in a death row case because 5pm was quitting
time. Judge Sharon Keller closed the court, and the condemned man
Michael Wayne Richard, was executed four hours later.
Further, Kerry Max Cook, who spent years on death row and was released
in a plea deal, was subjected to “egregious prosecutorial
misconduct” according to an appeals court. Now trying
to clear his name, Cook is accusing the prosecutor
in his case of keeping the bloody murder weapon in
his home as a souvenir. The DNA test was taken, and
we await the results.
finally, the SAFE California Act
- a ballot initiative appearing on the November ballot
- would abolish capital punishment and save the state
$1 billion in five years. If the measure passes, it
would eliminate one-quarter of the nation’s death row.
say if it ain’t broke, don’t fix it. Well, not only is the death penalty
irretrievably broken, it is inherently broken. Four
decades after the Furman decision, this is
as clear as ever. Had the death penalty been a product,
it would have been judged as shoddy, defective and
unreliable. It would have been recalled and removed
from the shelves long ago.
BlackCommentator.com Executive Editor and
Columnist, David A. Love, JD, is a journalist and
human rights advocate based in Philadelphia, is a graduate of Harvard College and the University of Pennsylvania Law School. and a contributor to The Huffington
Post, the Grio, The Progressive
Media Project, McClatchy-Tribune News Service, In These
Times and Philadelphia
Independent Media Center. He also blogs at davidalove.com, NewsOne, Daily Kos, and Open Salon. Click here to contact Mr. Love.