death penalty today and furman v. georgia and 1972 and freakishness and justice potter stewart

News stories today reported that the Associated Press has completed a study of more than 1900 death-penalty indictments in Ohio from 1981-2002 which concluded that race of victim as well as political leanings of the counties in which capital sentencing took place were two major factors in whether a perpetrator would receive a sentence of death. The importance of this study needs to be understood from the perspective of the history of the death penalty in America in the last 50 years. When seen from this view, the Ohio study becomes a central building block in the effort of abolitionists to limit, or eliminate, the death penalty from our society. Or, to put it slightly differently, the study contributes to the struggle to find language that will "sell" to the general public about the (un)justness and (un)fairness of the death penalty.

A Death Penalty Primer

The death penalty is primarily an issue of state rather than federal law. Though there is a federal death penalty, it has been used less than a handful of times in the past 40 years. The most visible federal execution was that of Timothy McVeigh, the perpetrator of the 1995 Murrah Federal Building explosion in Oklahoma City. Thus, when you speak of the death penalty, you are primarily referring to it from the perspective of the 50 states. This can often lead to confusion, however, because people want to talk about the death penalty in general without confining it to the way it is understood or applied in a particular jurisdiction. Nevertheless, be aware of this distinction.

This distinction is important because only 38 of the 50 states currently have a death penalty. In general the US is a "death penalty friendly" country, but for historical and philosophical reasons 12 states have decided to opt out of it. First, a point about history. You should know that though most states have had the death penalty at one time or another in their history, there were three waves of abolition sentiment in US history. The first emerged in the 1840s-early 1850s, when reform movements, communitarian living and other social experimentation was rife in America. The second was a result of the progressive era in American politics. More than a dozen states abolished the death penalty from 1898 until the beginning of WWI. Finally, the late 1950s-late 1960s also saw powerful abolition sentiments and movements. Several states, such as Oregon, have abolished the penalty twice and restored it twice--perfectly reflecting this "wave theory" of American history.

I will return to some history in a moment, but I want to list the 12 states currently without a death penalty. Except for one state, they all can be explained historically or geographically/philosophically. Four of the abolition states are in New England (ME, VT, RI, MA); five are in the Upper Midwest (MI, WI, ND, MN, IA), two are the most recently admitted states (AK and HI) and the final one is West Virginia. You might think it is unusual that a rock-ribbed Republican state such as AK has no death penalty, but it was a requirement laid upon AK legislators in the late 1950s (when abolition sentiment was gaining steam AND when AK was seeking statehood) to write in a "no death-penalty" clause into their state constitution. The Upper Midwest anti-death penalty sentiment goes back to the 1840s-1850s (MI, WI) to the progressive era (ND, MN) and to the 1960s (IA), and may be explained, in my judgment, by a deep philosophical commitment by the Scandanavian/German dominated states not to execute people for crimes. Finally, several New England states abolished the death penalty for similar humanitarian reasons.*

[*One could make an argument, too, that several states with a death penalty only have it "on their books" and do not really plan to use it. Some of them do this either by not having anyone on death row (that is, not sentencing anyone to death) or by having such a lengthy and cumbersome appeals process that it is unlikely if more than a few will ever be executed. A state-by-state review is far beyond the scope of these three essays. The best online resource for death penalty information is the Death Penalty Information Center.]

Returning to our Recent History

As I said above, you really cannot understand the impact of the recent Associated Press study unless you understand about four things in the recent (since the 1960s) history of the death penalty in America.

I. Abolishing the Penalty in 1972

First, the US Supreme Court abolished the death penalty in an applied, but not facial, challenge to a state death penalty statute (Georgia) in 1972. I need to unpack the language of this sentence. Normally when someone brings a constitutional challenge to a statute, they do as in an "as applied" case. That means not that the statute may not be literally contrary to the constitution but, as applied to a particular defendant or class of defendants, it violates the constitutional principle. Normally an "as applied" challenge to a state statute is brought to the state supreme court because that court is the final arbiter of state law, but if it is alleged that a state statute violates the federal constitution, federal courts can get involved in interpreting the state law. So it was in the early 1970s when death penalty abolitionists brought a challenge that the GA death penalty law was unconstitutional as applied.

Surprisingly to many, the US Supreme Court bought the argument of abolitionists. Though the justices wrote a total of more than 200 pages in their opinions in this case (Furman v. Georgia) the word that seemingly "stuck" in the American consciousness was articulated by Justice Potter Stewart, himself an Ohioan, appointed to the court by Eisenhower. Stewart talked about the "freakishness" of the death penalty--that the sentence of death was like being struck by lightning. There appeared to be no rational basis for why someone was sentenced to death and another one was not. Some of the other justices also said that it seemed that race (both of the victim and perpetrator) was a factor that also entered into capital sentencing. This is a short-hand way for saying that a disproportionate number of those on death row were African-Amerians, and that when members of the majority race were killed it was more likely that a person would receive a sentence of death than when a minority-race person was killed.

The Furman decision in 1972 was a signal triumph for abolitionists, who had been working nearly 20 years on legislative efforts to abolish the death penalty in individual states. One of the allies brought into the effort were the sociologists. I need to say a word on sociology and sociologists before moving to points 2-4, but let's turn to the next essay for that.