Fifty years ago, the United States embarked on a controversial path to re-establish capital punishment, aiming to create a just and fair system for the most heinous crimes. This decision, following the 1976 Supreme Court ruling in Gregg v Georgia, reinstated the death penalty after it had been deemed "morally unacceptable" and "racially discriminatory" in 1972. The new framework introduced measures like guidance for jurors and automatic appeals, intended to rectify previous flaws and ensure a more equitable application of the ultimate punishment.
However, a comprehensive analysis by the Marshall Project, coinciding with the 50th anniversary of Gregg v Georgia, suggests that the system has largely failed to achieve its intended goals. The study, which examined over 9,000 death sentences issued across the nation since the punishment's return, reveals significant shortcomings. Crucially, fewer than one out of every five individuals sent to death row has ultimately been executed, indicating a substantial divergence from the original legislative intent.
The research also highlights the enduring presence of issues the 1976 reforms aimed to eliminate. Black individuals remain disproportionately represented on state death rows, and the likelihood of receiving a death sentence often depends more on where a crime is committed rather than the nature of the crime itself. These findings underscore a persistent struggle with systemic bias and inconsistency within the capital punishment framework.
A major contributing factor to the low execution rate is the high number of death sentences overturned by courts; over a third of those issued in the past five decades have been thrown out. This often occurs due to issues identified during appeals, such as prosecutorial misconduct, ineffective defence, or newly discovered evidence. The emergence of skilled defence lawyers, often federally funded, specialising in death row appeals, has played a significant role in uncovering these flaws, leading to landmark decisions that have, for example, excluded minors and individuals with intellectual disabilities from capital punishment.
The protracted nature of these cases also raises concerns. Many individuals on death row, and the families of their victims, face decades of uncertainty and legal battles before a resolution is reached. This lengthy process not only exacts a heavy emotional toll but also diminishes the argument for capital punishment as a deterrent. Ohio Governor Mike DeWine recently cited the death penalty's failure as a deterrent and the emotional cost to victims' families as reasons for his call to abolish it in his state, echoing sentiments from experts who describe the current system as an "epic fail."