Thirty-five years ago, on July 2, 1976, on the eve of massive bicentennial celebrations, the U.S. Supreme Court in Gregg v. Georgia voted 7-2 to re-instate capital punishment. There had been no executions in the U.S. since 1967.
The U.S. could have been a leader in the subsequent worldwide trend toward death penalty abolition; instead the U.S. has become an outlier along with a minority of other countries (like China, Iran, and Saudi Arabia) that still kill prisoners.
What might have been?
Three of those 7 justices (Stevens, Blackmun and Powell) have since regretted their vote in Gregg, meaning that if there could be some sort of time-travel Stevens, Blackmun and Powell’s Excellent Adventure do-over, the death penalty might have never come back.
But, as with executing likely innocent people, you can’t go back in time to undo your mistakes. The death penalty did come back.
A new report from Amnesty International (summary here) reflects on the last 35 years of American capital punishment, observing that while the U.S. has been busy killing over 1,250 prisoners, the rest of the world has been abandoning the death penalty, with 139 nations now abolitionist in law or practice.
The isolation of the U.S. on this issue is beginning to have real consequences, as states’ degrading and cringe-inducing efforts to obtain execution drugs in an increasingly global marketplace runs up against growing global opposition to the death penalty.
Lundbeck, the Danish company that manufactures pentobarbital, announced on July 1 that it will
“demand that US distributors sign an agreement stating that they will not make pentobarbital, which is a sedative with a wide range of uses, available for prisons using it for lethal injections.”
The regrets of justices Stevens, Blackmun and Powell are a perfect illustration of the way most people react when they actually see the U.S. “modern” death penalty in action. After three and a half decades, bias, discrimination and error still predominate, and on top of that we now have this absurd circus of barely legal (or perhaps illegal) lethal injection drug dealing.
Attempts to limit the death penalty to “the worst of the worst” have failed, as notorious serial killers have bargained for life sentences, while at least 138 innocent people have been sent to death row.
The race of your victim, or the amount of money you have to hire a lawyer, are the true predictors of whether or not you will get the death penalty, not the heinousness of your crime. Many people who support the death penalty in principle turn away in disgust when they actually see it in operation. Recently, these have included the Governors of New Jersey, New Mexico, and Illinois.
After 35 years it has become clear that the death penalty cannot be applied fairly and is utterly incompatible with human dignity. We may not be able to go back in time to undo Gregg v. Georgia, but, looking ahead, it will be undone.