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Jill Castellano for The Marshall Project, Maurice Chamah for The Marshall Project
Fifty years ago, Americans set out on a polarizing mission: to find a fair and just way to punish the worst crimes through the death penalty.
In some ways, it was a surprising choice. In 1972, a narrow majority of the US Supreme Court struck down the nation’s entire death penalty system, calling it “morally unacceptable,” “racially discriminatory,” and “arbitrary.” It was possible that Americans could join their peers in Europe and Latin America, many of whom ended up being executed.
But then the Americans, as they often do, went their own way. In the summer of 1976, the Supreme Court issued another landmark decision, Gregg v. Georgia, which brought back the death penalty with some revisions intended to make it less arbitrary, including guidelines for judges and automatic appeals.
On the 50th anniversary of Gregg v. Georgia, Marshall Project More than 9,000 executions have been carried out across the country since states reinstated the penalty. Analysis also coincides with release “The Last 12 Weeks,” the new podcast from The Marshall Project with Serial Productions and The New York Times. The podcast features a case that has dragged on for more than 30 years, and the data suggests that this is common: People on death row and their victims’ families often have to wait decades for their cases to be resolved.
And most of the time, the result is not a death sentence.
If a goal of the death penalty is to deter crime, it is hard to imagine deterring someone because of the very low probability of the death penalty being carried out decades into the future. In mid-June, Ohio Governor Mike DeWine Urges his state to abolish the death penaltyBecause of its failure as a deterrent and the emotional cost to victims’ families.
“Our system is an epic failure,” said Frank Baumgartner, a professor at the University of North Carolina at Chapel Hill who spent years collecting data with researchers at the Death Penalty Information Center. “Every error they tried to fix failed, and now there are new problems that didn’t exist.”
Black people still exist Overrepresented in state death rows. And it depends on whether someone gets the death penalty Where they commit crimes rather than crimes. But new data also reveal how rarely executions end up as lawmakers intended: fewer than 1 in 5 people sent to death row are executed.
Proponents and opponents of the death penalty may debate who is to blame for this dysfunction, but new data give us a window into why the death penalty is so broken.
States passed new laws and began issuing new death sentences in 1972, inviting the Supreme Court to approve these efforts a few years later. Soon, a network of highly skilled defense lawyers emerged – often with federal funding – to specialize in death penalty appeals. (Several such lawyers are called “Last 12 weeks“Podcast.)
These lawyers often Opposed the death penalty as racist and immoral. They dug up trial transcripts and sent in investigators who found all kinds of problems, from Prosecutors are making racist statements And Keeping black people out of justice from Defense lawyers literally fell asleep during the trial. Eventually, defense lawyers convinced the Supreme Court to eliminate the death penalty for crimes committed before the defendant turned 18 and for people with intellectual disabilities.
All of these developments—failures at trial and success of defenses in finding them—help explain why courts have overturned more than a third of death sentences handed down over the past 50 years. When this happens, prosecutors can seek a new death penalty, and sometimes they do it more than once. Curtis Full, whose case was made famous By the podcast “In the Dark“Has faced the death penalty six times in Mississippi courts Before the charges against him were finally withdrawn.
But in other cases prosecutors have agreed to let the defendant plead guilty in exchange for a life sentence, or judges have again refused to impose the death penalty. “It’s such an inefficient system, because you’re wasting huge amounts of money on capital trials that backfire 20 years later,” Baumgartner said. Payments for these trials regularly hit the million-dollar mark All involve lawyers, investigators, and expert witnesses.
The 1990s saw the rise of DNA testing and legal efforts to overturn wrongful convictions, such as the Innocence Project. 1 in 50 cases since 1972 – freeing people from the death penalty has become more common due to evidence of innocence by jurors.
But it wasn’t always a court that stepped in to stop a death sentence: In more than 400 cases, a governor or president commuted someone’s death sentence. The reason is different. Sometimes it’s because a state abolishes the death penalty, as 23 have done Other times, a leader wanted to stop the heir from executing the people; President Joe Biden released 37 people from federal death row before leaving office. (He did not exonerate three people convicted of mass shootings whose commutations would have been particularly controversial: Dylann Roof, Dzhokhar Tsarnaev, Robert Bowers.)
Another major reason why people should not be put to death can be boiled down to politics. Support for the death penalty dropped by nearly 50% in the polls. Under pressure from activists and the public, pharmaceutical companies began to refuse to sell their products for lethal injection. Governors such as Florida’s Ron DeSantis and Texas’ Greg Abbott prioritized executions and their states found new providers or alternative methods. Like a firing squad. But others have given up.
Meanwhile, some governors oppose the death penalty on paper, but risk political repercussions if they go too far. California Gov. Gavin Newsom and Pennsylvania Gov. Josh Shapiro both halted executions in their states, but neither commuted any sentences. The result is that more than 700 people in those states remain on death row — a de facto life sentence that costs taxpayers a lot of money in the wake of ongoing appeals.
Of the more than 9,000 executions over the past half-century, 8% of the cases resulted in the death of the inmate from a cause other than the death penalty. Some of them have turned to suicide. At least one was Killed by another prisoner.
Combine complex legal processes and political ambivalence, and the result is a system that takes too long to reach unpredictable results.
The average person executed last year had been on death row for about 27 years. Three decades ago, the average wait was just 12 years. The irony is that lawmakers have spent so much time limiting appeals and executions. They clearly failed Increases the risk of innocent people being executedThey limit what kind of evidence they can bring to court.
More than two thousand people are now on the death row across the country. More than a quarter of them have been there for more than 30 years. “They’re not going away, so they’re fine Going into geriatric care” Baumgartner said.
The future of punishment is anything but clear. Judges are sending fewer people to death row. President Donald Trump is also present Pushing for revival And talking about bringing back the firing squad. But there is no indication that all the problems that have bedeviled sentencing for the past half century — racial disparities, arbitrary outcomes, interminable waits, the risk of executing the innocent — have been, or ever will be, fixed.
This article was published in partnership with The Guardian.
Additional data reporting by Steven Rich.
This is the story is produced by Marshall Project and review and distribution Stacker.
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Previously published at hub.stackernewswire
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Photo Credit: Alan B. 169 Texas Death Row Prisoners in Livingston, Texas. A fence, barbed wire and a guard are visible at the Polanski unit.
