Whether the justices take that or another case, the facts they face will be the same: The death penalty is a savage, racially biased, arbitrary and pointless punishment that becomes rarer and more geographically isolated with every year. In 2017 the total number of people sitting on death rows across America fell for the 17th straight year. In Harris County, Tex., the nation’s undisputed leader in state-sanctioned killing, the year passed without a single execution or death sentence — the first time that’s happened in more than 40 years.
Still, Texas was one of just two states — Arkansas is the other — responsible for almost half of 2017’s executions. And nearly one in three of the nation’s 39 new death sentences last year were handed down in three counties: Riverside in California, Clark in Nevada and Maricopa in Arizona.
It would be tempting to conclude from this litany, which is drawn from an annual report by the Death Penalty Information Center, that capital punishment is being reserved for the most horrific crimes committed by the most incorrigible offenders. But it would be wrong.
The death penalty is not and has never been about the severity of any given crime. Mental illness, intellectual disability, brain damage, childhood abuse or neglect, abysmal lawyers, minimal judicial review, a white victim — these factors are far more closely associated with who ends up getting executed. Of the 23 people put to death in 2017, all but three had at least one of these factors, according to the report. Eight were younger than 21 at the time of their crime.
More troubling still are the wrongful convictions. In 2017, four more people who had been sentenced to death were exonerated, for a total of 160 since 1973 — a time during which 1,465 people were executed. In many of the exonerations, prosecutors won convictions and sentences despite questionable or nonexistent evidence, pervasive misconduct or a pattern of racial bias. A 2014 study published in the Proceedings of the National Academy of Sciences extrapolated from known cases of wrongful convictions to estimate that at least 4 percent of all death-row inmates are wrongfully convicted. Against this backdrop, it would take an enormous leap of faith to believe that no innocent person has ever been executed.
This page has long opposed the death penalty, and would continue to even if the penalty’s application were completely free of bias and error. That is an unattainable goal, as should be obvious by now. Perhaps this explains why Americans, whose support for capital punishment climbed as high as 80 percent in 1994, have increasingly lost their appetite for state-sanctioned killing. Support is down to around 55 percent, its lowest level in 45 years.
The rest of the developed world agreed to reject this cruel and pointless practice long ago. How can it be ended here, for good?
Leaving it up to individual states is not the solution. It’s true that 19 states and the District of Columbia have already banned capital punishment, four have suspended it and eight others haven’t executed anyone in more than a decade. Some particularly awful state policies have also been eliminated in the past couple of years, like a Florida law that permitted non-unanimous juries to impose death sentences, and an Alabama rule empowering judges to override a jury’s vote for life, even a unanimous one, and impose death.
And yet at the same time, states have passed laws intended to speed up the capital appeals process, despite the growing evidence of legal errors and prosecutorial misconduct that can be hidden for years or longer. Other states have gone to great lengths to hide their lethal-injection protocols from public scrutiny, even as executions with untested drugs have gone awry and pharmaceutical companies have objected to the use of their products to kill people.
Last summer, Justice Ruth Bader Ginsburg suggested that the death penalty would eventually end with a whimper. “The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” Justice Ginsburg said at a law school event. “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”
That’s a dispiriting take. The death penalty holdouts may be few and far between, but they are fiercely committed, and they won’t stop killing people unless they’re forced to. Relying on the vague idea of attrition absolves the court of its responsibility to be the ultimate arbiter and guardian of the Constitution — and specifically of the Eighth Amendment. The court has already relied on that provision to ban the execution of juvenile offenders, the intellectually disabled and those convicted of crimes against people other than murder.
There’s no reason not to take the final step. The justices have all the information they need right now to bring America in line with most of the rest of the world and end the death penalty for good.