History of the Death Penalty

Furman v. Georgia Reenactment Raises Questions of Arbitrariness

The Georgia State Bar's constitutional symposium recently staged a reenactment of Furman v. Georgia, the U.S. Supreme Court case that led to the temporary suspension of the death penalty in 1972. Stephen Bright (pictured), president of the Southern Center for Human Rights, played the role of Anthony Amsterdam, who argued on behalf of death row inmates in two of the four cases that the Court decided in Furman. The roles of the justices were performed by Georgia Supreme Court Chief Justice Hugh Thompson, Georgia Court of Appeals Chief Judge Herbert Phipps and Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Bright argued that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment because it was applied rarely and randomly. The judges asked about many of the details of Furman's trial, noting that the entire trial took just six hours, and that blacks and Jews were excluded from the jury. The judges in the reenactment did not offer their opinions on the case, but the real Furman v. Georgia resulted in a 5-4 decision to suspend the death penalty, with some in the majority saying it was imposed arbitrarily and others saying the death penalty was unconstitutional in all cases.

DPIC Website To Be Archived By Library of Congress

The Death Penalty Information Center's website has been selected for inclusion in the archives of the U.S. Library of Congress. DPIC's materials will be part of the Library's historic collection of Internet resources on public policy topics, which will be made available to researchers at Library of Congress facilities, and may also be available on the Library's public access website at a later date. The Library's Web Archiving Team said, "Our web archives are important because they contribute to the historical record, capturing information that could otherwise be lost. With the growing role of the web as an influential medium, records of historic events could be considered incomplete without materials that were 'born digital' and never printed on paper." They noted that they consider DPIC's website "to be an important part of this collection and the historical record." We are honored for this designation.

Toobin on America's Ambivalence Toward the Death Penalty

Jeffrey Toobin, writing in The New Yorker, used the current scramble among states to procure the drugs for lethal injections as a paradigm of the much longer effort to make the death penalty palatable to the American public. "The story of the death penalty in this country," he wrote, "illustrates a characteristically American faith in a technological solution to any problem." However, Toobin concluded, technology can not cover up the broader problems of capital punishment: "The oxymoronic quest for humane executions only accentuates the absurdity of allowing the death penalty in a civilized society." He ended highlighting the declining public support for the death penalty, as well as the drop in executions and death sentences across the country.

Changing Views of Supreme Court Justices on the Death Penalty

Andrew Cohen, writing in The Atlantic, recently examined the evolution in thinking on the death penalty among Supreme Court Justices. Cohen noted that Justices John Paul Stevens (pictured), Lewis Powell, and Harry Blackmun all upheld new death-penalty statutes in Gregg v. Georgia (1976), thereby ushering in a return to capital punishment. All three, however, later said the death penalty under these statues was not being applied constitutionally. Justice Powell told his biographer, "I have come to think that capital punishment should be abolished." In a 1994 dissenting opinion, Justice Blackmun famously said, "I no longer shall tinker with the machinery of death." Justice Stevens sharply criticized the death penalty because of problems in the areas of wrongful convictions, racial bias, jury selection, and prosecutorial power. Cohen also noted the evolution in Justice Sandra Day O'Connor's views on the death penalty. However, he found no Justices who went from opposing the death penalty to supporting it.

Upon Nelson Mandela's Death, Recalling First Act of South Africa's Constitutional Court

When South Africa's Constitutional Court was created under then-President Nelson Mandela, its first act was to abolish the death penalty. Justice Arthur Chaskalson, President of the Court, announced its unanimous decision on June 7, 1995, stating, "Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional....Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be." Under apartheid, the death penalty had been applied much more often to blacks than to whites. Mandela, himself, faced the possibility of a death sentence in his 1962 trial for incitement.

Alabama Pardons Scottsboro Boys--Former Death Row Inmates

On November 21, the Alabama Board of Pardons and Paroles unanimously voted to posthumously pardon Charles Weems, Andy Wright, and Haywood Patterson, three of the nine "Scottsboro Boys," a group of black teenagers who were charged in 1931 of raping two white women. Eight of the nine defendants, including the three who were recently pardoned, were originally sentenced to death. The racial injustice of the case sparked protests and two U.S. Supreme Court decisions, one because the defendants did not receive adequate counsel and the other because no blacks were allowed to serve as jurors during the trials. The three who were recently exonerated were the last of the group who had not already been pardoned or had charges against them dropped. Legislation passed in Alabama earlier this year allowed the Board to grant posthumous pardons in cases involving racial or social injustice. The pardon and parole board's assistant executive director, Eddie Cook, said, "Today, we were able to undo a black eye that has been held over Alabama for many years." Alabama Gov. Robert J. Bentley said, “The Scottsboro Boys have finally received justice.”

LETHAL INJECTION: States Resorting to Secrecy and Backup Procedures to Execute Inmates

As states try to secure the drugs for carrying out lethal injections, they are increasingly resorting "to secrecy and backup execution protocols necessitated by drug shortages instead of treating those condemned to death with the dignity appropriate to any human life," according to a recent article in the Crime Report by Richard Dieter, Executive Director of the Death Penalty Information Center. The article described a number of desperate measures taken by states, such as secretly obtaining drugs from questionable sources overseas, designating a pharmacy as part of the "execution team" to hide its identity, and trying drugs never used before in executions. The article traces the history of lethal injections, culminating in the refusal of many drug companies to allow their products to be used in executions. On November 12, Florida will employ a risky 3-drug procedure, including a critical sedative only used once before in an execution. On November 14, Ohio intends to use a new injection process never tried before in U.S. executions.

BOOKS: "A Wild Justice" Explores the Cases and Politics That Led to Today's Death Penalty

In his new book, A Wild Justice, Evan J. Mandery (pictured) explores the political complexities and personalities that led to the Supreme Court's decisions in Furman v. Georgia--striking down the death penalty in 1972--and Gregg v. Georgia--allowing it to resume in 1976.  He describes in great detail the work of the NAACP Legal Defense Fund and the gifted attorneys, such as Anthony Amsterdam, who led the way through this groundbreaking period. Mandery summarizes the struggles this way: "The death penalty war, which continues today, would prove as heartrending and byzantine as any prolonged military campaign. It would be fought in every imaginable forum, from the lowest tribunal in remote Alabama to the hallowed halls of the Supreme Court. It would be fought at the federal level and in almost every state. It would be fought in the streets and in the ivory tower of the academy. These scholarly battles could themselves have consumed several lifetimes, as the abolitionists sought to collect and marshal data to address the various factual issues that would shape public and judicial opinion."

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