One peer-reviewed study suggested that at least 4.1 percent of those sentenced to death in the United States are innocent. With more than 2,700 Americans on death row, that would imply that more than 110 innocent people are awaiting execution.
The Supreme Court in 1976 restored the death penalty partly because it was confident that safeguards — such as meticulous rules about when death penalties could be applied — would eliminate the arbitrary application of capital punishment. In fact, “its defining feature is still its arbitrariness,” noted Jill Benton, an Atlanta lawyer who defends capital punishment cases.
Racial bias affects every aspect of the criminal justice system, and researchers have found that black defendants not only do worse than white defendants, but also that blacks with dark complexions fare worse than those with light ones. Of prisoners now on death row, 42 percent are black, 42 percent are white, and most of the remainder are Hispanic.
Bias is not just found in judges and prosecutors. In Washington State, researchers found that juries were four times as likely to recommend a death sentence for a black defendant as for a similar white defendant. The same study also underscored how random capital punishment is. In Thurston County in Washington, prosecutors sought the death penalty in 67 percent of aggravated murder cases; in Okanogan County, 130 miles away, zero percent. Over all in America, 2 percent of counties account for a majority of death penalty cases.
Researchers have found that whether Texas prosecutors seek the death penalty depends partly on how The Houston Chronicle covers the case. They have also found that if a jury has a majority of women, it is less likely to recommend death.
Justice is supposed to be blind. But it is not supposed to be random.
Aside from deterring murders and saving money, a third common argument for the death penalty is that it is appropriate retribution for a heinous crime, a way for a community to rise up and express its revulsion for some brutal act. We dishonor victims, so the argument goes, if we simply lock away a monster.
This is an argument that cannot be countered with data, for it rests on values. It has to be said, though, that the history of executions as an expression of a community’s moral values is not an inspiring one. Such values-based arguments have been made through history for stoning adulterers and burning witches — and, in Japan in the 1600s, boiling Christians alive.
Just this spring, the small Southeast Asian sultanate of Brunei defended the stoning to death of gays, adulterers and heretics as an expression of community values intended “to educate, respect and protect the legitimate rights of all individuals.”
Strom Thurmond, the South Carolina senator who was the longest-serving Republican in congressional history, used to boast that as a judge in the 1930s and 1940s, he had sentenced four men to death; he saw capital punishment as reflecting community values and had no regrets, for the men got what they deserved.
A South Carolina lawyer, David Bruck, looked into those four death sentences. Three involved black men: one who was deranged from syphilis, one who was accused of rape by a white woman but had many alibi witnesses and may have been innocent, and one who in self-defense shot an armed white man who attacked him. The fourth was a white man who, in a rage, killed his girlfriend.
At the time, it may have seemed to Thurmond and the white community self-evident that these four executions were righteous. Today the first three seem hideous examples of racist injustice. Our standards and perspectives have changed — but what is unique about the death penalty is that a person can never be un-executed.
Today the Supreme Court is caught in a bitter feud over the death penalty, with a conservative majority approving executions and fretting about “unjustified delay” in carrying them out, as Justice Neil M. Gorsuch put it in April. In her dissent in that case, Justice Sonia Sotomayor argued, “There are higher values than ensuring that executions run on time.”
The result of this division is that the court is unlikely to constrain executions significantly. Yet there is some recognition that the system is faulty, and capital punishment is becoming more rare. In 1998, there were 295 death sentences in this country; in 2018, just 42. In California, which has the largest death row, Gov. Gavin Newsom has bravely declared a moratorium on executions.
The case of Kenneth Reams, a man on death row in Arkansas, encapsulates the cruelty and absurdity of this system. It “shows clearly all the problems with a democratic society using the death penalty,” said George H. Kendall, a lawyer who is helping Reams challenge his sentence.
Reams was a black kid born to an impoverished 15-year-old mom. He had a turbulent childhood, running away from home at 13 and dabbling in juvenile crime. Then at 18 he helped a friend who needed money to pay for his graduation cap and gown: They robbed a white man named Gary Turner at an A.T.M., and the friend shot and killed Turner.
Reams was defended by a part-time lawyer with several hundred other cases and no capital punishment experience, and there were indications that the jury was manipulated to underrepresent African-Americans. In the end, Reams was sentenced to death.