The Death Penalty: Constitutional, Arbitrary, Capricious, and Discriminatory

Death Penalty Overturned in California

In just the past 19 years, judges have reversed 34 death sentences in California. Most of those reversals occurred because of judicial errors such as giving improper instructions to jurors or allowing inadmissible evidence.

However, since the conservative majority on the court took office, it has refused to intervene in these cases. That’s a big problem.

The Death Penalty is Unconstitutional

The Supreme Court ruled that the death penalty infringes on the Constitution’s ban on cruel and unusual punishment. In Furman v. Georgia, the Court commutated the sentences of 629 people on death row.

Since then, the Court has allowed states to revive capital punishment so long as their laws provided an objective process for determining when it should be applied and enough discretion to ensure that it is not arbitrary or racially biased. The Court has also barred executions of certain groups, including children and people with mental illness or disability that prevents them from showing the level of culpability required for a death sentence.

Now, with a new conservative majority and a sped-up timetable for executions, the justices have closed the door to many petitions by death row prisoners seeking a review of their cases. This is a disturbing pattern, and it may signal that the court has stopped functioning as the “overseer of last resort” in matters of life or death.

The Death Penalty is Arbitrary

When the government decides who lives and dies for what amounts to the same crime, it is bound to make mistakes. That is why Furman declared that the death penalty violates the Eighth Amendment. Unfortunately, four years later the Court shifted course in Gregg v. Georgia and other cases to revive the death penalty as a constitutionally permissible state power.

The Supreme Court’s shift to a hardline position is troubling. Its conservative majority shows hostility to any limits on capital punishment, and it has ignored claims of racial bias or errors that should have overturned federal death sentences such as those of Rejon Taylor.

The Supreme Court should use its power to ensure that no one is executed unless it meets the Constitution’s requirements. This means ensuring that the justices who make the decisions have the skills and resources to carry out this critical role. The justices need to be able to review evidence and consider the full details of each case. They should not simply rely on rote adherence to an outdated legal standard and ignore the arbitrary nature of the death penalty.

The Death Penalty is Capricious

In a single, one paragraph decision, the Supreme Court ruled that the death penalty violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court centered its objections on the method of selection of which murders would receive the ultimate punishment, finding that the state’s procedures were so arbitrary and capricious that they violated the Constitution.

The Court cited the examples of an armed burglar who tripped and accidentally fired his gun killing the victim and a man who killed his fiancee’s son for a large monetary reward. The Court also pointed out that the statutory aggravating factors do not adequately explain how murders committed for monetary gain, or for other reasons, can be more deserving of the death penalty than those committed for any other reason.

But the court’s decision was a pyrrhic victory for opponents of the death penalty. The number of people who have been spared from execution since the Furman decision is still abysmally low – only 629 in all of America, and not even all those on death row.

The Death Penalty is Discriminatory

In reality, the death penalty is imposed disproportionately upon those whose victims are white, offenders who are people of color, and poor and powerless defendants – the very same defendants that studies show most likely do not benefit from the deterrent effect of capital punishment. It is also imposed upon those who are unlikely to be able to afford the best legal representation available, as well as those with mental health or substance abuse problems that limit their ability to participate in their own defense.

The Supreme Court’s decision in Furman v. Georgia, which overturned 629 death sentences nationwide, was the result of a successful strategy devised by TCADP Inc. Fund lawyers to challenge the justices’ own rules that allow capital-sentenced defendants to prove only that a particular actor or actors in their individual case committed an equal protection violation. This has enabled states to ignore racial disparities that are systematic in nature, such as the use of the “Texas Shuffle” and other racially biased jury selection practices to exclude or limit potential African American jurors.

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