The death penalty has been overturned twice in this country (that I’m aware of). The first time was the Supreme Court’s decision in Furman v. Georgia in 1972 :
It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler. It is also said in our opinions that the proscription of cruel and unusual punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” A like statement was made in Trop v. Dulles, that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.
It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.
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The words “cruel and unusual” certainly include penalties [408 U.S. 238, 245] that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is “cruel and unusual” to apply the death penalty - or any other penalty - selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.
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We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.
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Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment.
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The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
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Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments.
And the second time was when Illinois Governor George Ryan passed a death penalty moratorium last year :
Four years ago I was sworn in as the 39th governor of Illinois. That was just four short years ago — that’s when I was a firm believer in the American system of justice and the death penalty. I believed that the ultimate penalty for the taking of a life was administrated in a just and fair manner.
Today — three days before I end my term as governor, I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death …
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The death penalty has been abolished in 12 states and in none of those states has the homicide rate increased. Now, here’s a good number for you to remember: In Illinois last year, we had about 1,000 murders and only 2 percent were sentenced to death. I want to know, where is the fairness and the equality in that? The death penalty in Illinois is not imposed fairly or uniformly, because of the absence of standards for 102 counties in this state and the state’s attorneys who must decide whether to request a death sentence. Should geography be a factor in determining who gets the death sentence? I don’t think it should. But in Illinois it makes a difference. You are five times more likely to get a death sentence for the first-degree murder in the rural areas of the state than you are here in Cook County. Five times more. Where’s the fairness in that? Where is the fairness in the justice system? Where is the proportionality?
The Most Reverend Desmond Tutu wrote to me this week stating that “to take a life when a life has been lost is revenge. It’s not justice.” He says justice allows for mercy and clemency and compassion. These virtues are not weaknesses.
I never intended to be an activist on this issue, needless to say. But soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him.
It would be so antiseptic that most of us wouldn’t have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the state of Illinois to die.
After Mr. Porter’s case there was the report by Chicago Tribune reporters Steve Mills and Ken Armstrong documenting the systemic failures of our capital punishment system. Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or resentencing.
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Thirty-three percent of the death row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from the practice of law. Of the more than 160 death row inmates, 35 were African-American defendants who had been convicted or condemned to die not by a jury of their peers, but by all-white juries. More than two-thirds of the inmates on death row were African-Americans. Forty-six inmates were convicted on the basis of testimony from jailhouse informants.
I can recall looking at these cases and the information from the Mills/Armstrong series, and I asked myself and my staff: How does that happen? How in God’s name does that happen? In America, how does it happen? I’ve been asking this question for nearly three years, and so far nobody’s answered the question. Even as I stand here today, nobody’s answered the question.
If the arbitrary use of the death penalty was “cruel and unusual” in 1972, how is it any better now? Regardless of whether or not you feel that the death penalty is an appropriate punishment, it seems that the systems isn’t any less flawed now than it was thirty-two years ago.
