Are We Any Closer to Ending the Death Penalty? A Word of Caution.

July 17, 2014

Yesterday across the county opponents of the death penalty cheered and well should we all. According to US District Court Judge Cormac Carney, California’s death penalty violates the constitutional rights of the condemned under the Eighth Amendment. Not only does this decision offer much needed ammunition in the battle to end the death penalty, but it also—quite literally—leads to a possible reprieve for the more than 700 people sitting on death row in one of the nation’s largest carceral states.

Today, though, we all must begin sorting through what this decision really means for the broader national fight to end the death penalty everywhere. Indeed, as everyone who deals with the law and the American criminal justice system knows, it is always important to take a very close look at whatever case seems to be heralding a major change in practice.

Why did Judge Carney rule that California must immediately halt the death sentence of  Ernest Dewayne Jones? In short, because, he noted, people like Jones sit on death row for decades after they have been sentenced and, thus, endure the “threat” of death for years on end. This is not only cruel and unusual punishment, but it is also troublesome, according to the Jones v. Chappell decision, that who actually ends up getting executed in America is totally arbitrary. Ultimately procedural factors, ones that have nothing to do with individuals or the crime for which there were convicted, seem to determine who the state actually kills in California and elsewhere.

Though we should indeed be grateful for yesterday’s ruling, we must be cautious about celebrating it with too much zeal. We must remember that in some important ways we have been exactly here once before.

The last time we stopped the death penalty in its tracks in America, under Furman v. Georgia (1972), we celebrated big time. The U.S. Supreme court had clearly stated that the death penalty violated the Constitution and, even better, on June 29, 1972 it took the further step of voiding death penalty statutes in forty states and placed a 10 year moratorium its imposition anywhere.

And yet, the Furman decision had also been based at it’s core on the issue of capriciousness and on how arbitrary, and thus cruel and unusual, the imposition of the death penalty was. Thus, the death penalty was assured to come back. In fact, within mere months of Furman, states across the nation set about trying to perfect and reinstate the death sentence.

So today, here we sit in an odd place. If we are lucky, yesterday’s ruling might get us back to Furman since, as the Jones case shows, the death penalty is clearly arbitrary. But even if we do, we are by no means out of the woods.

History makes clear that when we decide that the death penalty is flawed in its application or even in its imposition, states will then try to improve on its application and imposition. Indeed any close look at the past indicates that states have always embraced the death penalty for arbitrary reasons in the first place—usually at times of economic depression and political unrest. Consider that “from 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official” and it only came back when Americans got scared of possible political upheaval, very real racial unrest, and then, economic collapse. By 1930 all but one of those U.S. states that had outlawed the death penalty, had brought it back.

Ultimately  if we have any hope of truly ending this barbaric practice forever, we must address the very ethics of the death penalty and determine how the act of killing a U.S. citizen as retribution for committing a crime stacks up against our Constitution.

If we keep picking at this punishment around the margins—quibbling with how effectively it is administered, or how swiftly it is implemented, or about which citizens it is most often applied against, we merely invite its permanence.

As long as someone can simply try to work out the bugs of the death penalty, it will never, ever, be abolished.