“I can’t get over the fact that just because I was born Black, and someone who had had the authority who had happened to be white, felt the need to send me to a cage and try to take my life for something they knew I didn’t do. I was the wrong one, but the right color.”
—Ray Hinton, who spent 30 years on Alabama’s death row
A recent Gallup poll revealed that 50% of Americans think the death penalty is administered fairly; this, amid facts that 1 in 8 executions is that of an innocent person, and that 34% of executions are that of a Black person, despite Blacks comprising only 13% of the U.S. population.
Half the country says, Nah, it’s all good. This brings me to that little landmark SCOTUS decision, Furman v. Georgia in 1972.
In 1972, thirteen years before Hinton’s conviction, the U.S. Supreme Court voted in Furman v. Georgia to place a temporary ban on capital punishment based on their findings of capricious and arbitrary administration of the death penalty.1
The decision didn’t prevent Hinton’s wrongful conviction, nor that of 195+ others exonerated from death row since 1976. “If it can happen to me, it can happen to you,” said 1993 exoneree, Kirk Bloodsworth.2 The decision had, however, produced an unheard of nine written opinions; even the five majority justices disagreed on the definition and scope of arbitrariness. None of the justices provided recommendations or remedies.
Despite a lack of meaningful guidance by the Court, thirty-five states revised their statutes resulting in an array of death schemes and in 1976, the Court reversed the ban after concluding in Gregg v. Georgia, that Georgia’s bifurcated trials, automatic appellate review, and proportionality reviews would adequately prevent “unfettered discretion.” Surprisingly, the Court did not require each of these reforms be included in other states’ new statutes. While some statutes have been deemed unconstitutional since 1976, many of the death penalty laws in the twenty-seven states with active death rows, continue to violate the Constitution, leaving one to ponder the constitutionality of the 1,582 executions since Gregg. Therefore, the lack of plurality and recommendations by the majority in Furman v. Georgia, led to hastily approved statutes, continued unbounded discretion and discrimination, and violations of due process when determining death sentences.
“As any first-year law student quickly learns, when the Court invalidates legislation, only careful study and analysis of the Court’s reasoning guides a legislature away from the same constitutional pitfalls in the future. In this regard, the proponents (and a generation of law students) regarded Furman as a disaster.”
—UC Davis law professor, John Poulous,UC Davis law professor
Indeed, taking advantage of a fractured majority, states developed their own broad interpretation of what constituted a violation of the “cruel and unusual punishment” clause under the Eighth Amendment and had to merely satisfy one to two justices. Justices Brennan and Marshall made clear they would set aside any capital punishment decision. For Justice White, the absence of standards didn’t make statutes unconstitutional; it was that the death penalty wasn’t being imposed enough. This left Stewart’s vote up for grabs. (Douglas had retired in 1975 and was replaced by John Paul Stevens who, like Stewart, favored the middle-ground.)3 For example, Florida (who submitted their revised statutes in only five months) and Georgia wooed Stewart by compiling additional discretionary measures like bifurcated sentencing procedures, while sentences on the more mandatory side put forth by North Carolina, Louisiana, and Texas, appealed to White’s “draconian” position.4 Confusing states even further, the Court struck down any mandatory death sentences in the 1976 case, Woodson v. North Carolina because of the lack of discretion.
How then, would states comply with Furman while also adhering to the “fundamental respect to humanity,” set forth in Woodson? The accepted solution involves aggravating and mitigating factors. States could compile their own lists of special circumstances that juries could consider when deciding death penalty cases. For example, in Arizona, if someone is found guilty of first-degree murder, the jury must choose from a list of fourteen aggravated circumstances such as the defendant committed the offense in an especially heinous, cruel or depraved manner, in order to impose the death sentence. Mitigating circumstances might include one’s low intellectual capacity, or addiction problems, but in some states, like Nebraska, offer juries aggravated circumstances only.
These sentencing schemes, that list a number of special circumstances, grant wide discretionary powers to juries that carry the grave potential of inconsistent or indiscriminate sentences in violation of the Eighth Amendment, precisely what the Furman majority aimed to avoid. Most disturbing, is the vast and ever-growing body of evidence showing racial discrimination in death penalty cases, including a 1983 study that concluded, among other results, that 11% of cases with a white victim resulted in a death sentence, whereas, 1% of death sentences involved a Black victim.5 The trend has continued. As of 2002, only twelve white defendants, whose victims were Black, had been executed, compared to a staggering 178 Black defendants being executed for the murder of white victims.6 When looking at prosecutorial discretion (something Furman failed to either consider or address), a recent study found that one California prosecutor, from 1978 to 1993, sought the death penalty in 20% of cases involving a white victim, but only 5.5% in cases involving Black or Latinx victims.7
What if the discretionary power to impose the death penalty is left up to a single judge? Several states, like Alabama, Delaware, Florida, and Indiana have “hybrid” statutes that leave the ultimate sentencing determinations to the judge and in some states, juries don’t have to be unanimous, violating a defendant’s right to a trial by jury.8 In fact, the U.S. Supreme Court ruled in Ring v. Arizona, that a death sentence can only be decided by a jury yet remarkably, other states have evaded Sixth Amendment scrutiny. This fact is not lost on the Florida judicial system. Florida Supreme Court Justice Charles Wells said after Ring, that to strike down the state’s death penalty procedures would “have a catastrophic effect on the administration of justice in Florida and seriously undermine our citizens’ faith in Florida’s judicial system.” In other words, the task would simply overwhelm the courts.
Moreover, states with hybrid statutes oftentimes don’t require a jury to disclose what specific circumstances they’ve chosen before handing the decision over to the judge who then exercises his or her own discretion without being privy to the jury’s factual findings, a clear violation of both the Sixth and Eighth Amendments.9 In Utah, a jury may recommend death while rejecting one or more aggravators with the judge never knowing, rendering judicial neutrality useless and resulting in an arbitrary sentence by both the judge and the jury.
Is it any wonder that for every eight people executed, one death row inmate has been exonerated?10 Ray Hinton was in his fourth year of confinement when my own personal interest in the death penalty began at age twelve. As an adult, years of research and a deep interest in the death penalty, enlightened me to its implications. Before, my comprehension was limited to the question of morality: Is the practice right or wrong? Rarely did I ask myself if the procedures leading to such a definitive—often violent—end, were sound, just, and without defects. While that research which began in 2008 pushed my understanding beyond capital punishment’s moral dilemma, this further exploration of the circumstances behind the Furman decision, broadened my perspective into the ethical and legal realms that heightens the urgency for additional study and perhaps more important, immediate action by state and federal legislators.
Today, the various capital punishment schemes among the thirty-five states that have not fully abolished capital punishment, are a motley crew of convoluted rules and laws of legal (or illegal) gymnastics, bound to render a jury or judge dizzy with discretionary power. Add in biases and any number of the established flaws within our criminal justice system, is it any wonder over 2,300 people are sitting on death row?
People often assume the highest court in the land, protectors of our most sacred foundations, keep careful guard and study over our Constitution, raising the red flag when something runs amiss. It is their job after all. We all know this isn’t happening. This analysis of the Furman decision is not novel; much has been written about the debacle and I suspect further research will merely add to the totals I’ve presented here; fifty-one years of analysis speaks volumes, literally. Continued study and research are imperative, as is bringing forth the results in a palatable presentation to mainstream society in order to encourage greater advocacy and awareness. Exactly what participants in the Gallup study referenced above would do well to know.
Organizations like the Innocence Project and the Equal Justice Initiative are leading this charge. In fact, without the tenacity and determination of these organizations, people like Ray Hinton would have been wrongfully put to death. Hinton knows all too well the implications of Furman’s fatal flaws:
“Justice is not blind. She knows what race you are. She knows what gender you are. She knows what college you attend, what neighborhood you live [in]. She knows everything she needs to know about you. She even knows how much money you have in the bank. And when you find yourself in the courtroom, they have already been determined by those things she already knows, whether or not you’re going to be found guilty.”
—Ray Hinton
So, would you say the death penalty is administered fairly?
Furman v. Georgia, 408 U.S. 238 (1972)
Bloodsworth, Kirk. (2014). “Of Course the Death Penalty is Cruel and Unusual.” The New York Times.
Bazelon, Emily, “Why Justice Stevens Turned Against the Death Penalty.” New York Times, July 17, 2019
Burt, Robert. (1987) Disorder in the Court: The Death Penalty and the Constitution. Michigan Law Review, Vol. 85 Issue 8 1987 pp. 1741-1819
Baldus, David, et al. (1986) Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts. Stetson Law Review Vol. 15 No. 2 Spring 1986 pp.133-261
Mourer, Sarah. (2014) Forgetting Furman: Arbitrary Death Penalty Sentencing Schemes across the Nation. William and Mary Bill of Rights Journal, Vol. 22, Issue 4 (May 2014), pp. 1183-1220
Shatz, Steven, Pierce, Glenn, Radelet, Michael. (2020) Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion. Columbia Human Rights Law Review Spring 2020, Vol. 51 Issue 3, pp.1070-1098, 29p.
see [5]
see [5]
Equal Justice Initiative (2020). Innocence and Error. Retrieved: https://eji.org/issues/death-penalty/