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The U.S. Supreme Court has made a lot of bad decisions throughout our nation’s history. Some of its worst decisions are in death penalty cases. Over the coming weeks and months, I’d like to have a conversation with you here on Twitter about some of these #SupremelyBad cases.
The U.S. Supreme Court’s original sin when it comes to the modern death penalty is the #SupremelyBad Gregg v. Georgia decision from 1976. Before we look at Gregg, though, we have to talk about the case that came before it: Furman v. Georgia from 1972.
The Furman decision, which resulted in all death sentences nationwide being thrown out, held that death penalty laws were unconstitutional because the way they were administered was arbitrary, capricious, and discriminatory.
The Furman decision was a good outcome but the Supreme Court had splintered reasoning, with each justice writing a separate opinion. The backlash, especially in the South, was immediate.
After the Furman decision came down in 1972, states immediately began re-writing their laws in an effort to revive the death penalty. The Supreme Court hadn’t said that the death penalty itself was unconstitutional, but that the existing laws were unfair.
Gregg v. Georgia was a legal challenge to Georgia’s new death penalty laws. The Supreme Court heard arguments in March of 1976. The case involved two separate issues: mandatory death sentences for murder and jury discretion for other crimes.
Historical Sidebar: One of the advocates in favor of the death penalty was none other than Robert Bork, who would be denied confirmation to the Supreme Court a decade later. On the other side was Anthony Amsterdam, one of the greatest civil rights lawyers of the 20th century.
Justices Brennan and Marshall were opposed to the death penalty in all cases. Chief Justice Burger and Justices White, Rehnquist, and Blackmun (more on him a little later!) were ok with both parts of Georgia’s death penalty laws.
With two justices categorically opposed and four justices categorically in favor of the death penalty, there was no majority. It came down to Justices Stewart, Stevens, and Powell, who sawed the baby in two, rejecting mandatory death sentences but upholding jury discretion.
The Gregg decision gave jurors the discretion to weigh “aggravating” and “mitigating” factors in order to decide whether a person should be sentenced to die. Aggravating factors weigh in favor of death, mitigating factors weigh in favor of life.
These theoretically objective, counterbalanced, aggravating and mitigating factors were supposed to overcome arbitrary sentencing by giving jurors a common frame of reference. By all measures, that’s been an abject failure over the past 40+ years.
Our death penalty system post-Gregg is based on assumptions that don’t make any sense. First, the Supreme Court assumed that some crimes are worse than others. How do we judge this? Surely each crime is going to be the worst for that victim or victim’s family.
Second, the Supreme Court assumed that jurors would make decisions based solely on legal criteria. We know that’s not how juries work. Just in the past few years, we’ve seen cases where jurors sent people to death row because of their race or sexual orientation.
And third, the Supreme Court assumed that arbitrariness in the death penalty system only comes from juries. What about other players in the system? Prosecutors get to make the decision about when to pursue the death penalty and the quality of defense counsel can be a crapshoot.
Two decades after Justice Blackmun joined the majority in the Gregg decision, he declared that the death penalty “delusion” had “failed”: “From this day forward I shall no longer tinker with the machinery of death.”
In trying to fix the death penalty system through the Gregg decision, the Supreme Court created a new set of unsolvable problems. It’s been tinkering with the broken machinery of death ever since, coming up with increasingly outlandish decisions each year.
What do you think about the Gregg decision? Can we ever really eliminate arbitrariness from the process? Is it fair to tell one victim’s family that their loved one’s death warrants the death penalty, implicitly telling other victims’ families that their loss isn’t as important?
If weighing aggravating and mitigating factors failed to fix the arbitrary and capricious nature of the death penalty, was there some other solution the Court could have found? Or, within a human system, is there no solution?
I’m really looking forward to having this #SupremelyBad conversation with you.
