A defunct death row in Philadelphia. Though Pennsylvania is not one of them, an increasing number of states have abandoned use of the death penalty.

The Washington State Supreme Court recently ruled that the death penalty is unconstitutional, due to arbitrariness in application and racial bias. A number of states have already adopted this ruling, and others, like Oregon and Colorado, have a governor’s moratorium placed on executions, prohibiting them until the moratorium is lifted. In recent decades, a national trend towards eradication of the death penalty has become evident. The decision of Washington’s Supreme Court provides further evidence that the death penalty is unconstitutional at a national level, and should be abolished.

The death penalty violates the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishment.”  In 1976, the United States Supreme Court upheld the death penalty, provided it was implemented in a reliable and not arbitrary way. The way the death penalty is administered has changed since that time, and no longer fits those requirements. Additionally, the excessive delays that occur before the penalty is ever administered are inhumane and render the punishment useless.

The death penalty is unreliable. An alarmingly high number of individuals sentenced to death have been exonerated. Between 1973 and 1993, 160 people were released from death row due to evidence of their innocence. In 2014, six death row inmates were released upon being found innocent in post-conviction retrials. All had been in prison for over 30 years. This provides evidence that the initial trial of a capital crime is likely to be flawed. Indeed, individuals are 130 times more likely to be exonerated when facing a death sentence. Though some of this may be due to the greater attention directed towards death row inmates seeking post-conviction relief, a large amount is also undoubtedly due to a high rate of wrongful initial convictions.

Furthermore, research has found evidence that in recent decades innocent people have been executed. Studies from the L.A. Times and The New Yorker have identified multiple executions that likely resulted from false convictions. A number of pardons have also been granted in recent years to people found to have wrongfully been executed.

This may seem an issue with the conviction process itself, not with the punishment. But in the case of the death penalty, the two are intertwined. Death is different than other punishments; no prisoner of death can be released upon finding their sentence overturned. Any possibility of unreliability—and in this case the possibility is quite great—renders death an excessive punishment.

The unreliability of capital cases results from a number of factors associated with the death penalty. Such cases often place unusually high amounts of pressure on judges, jury members, and prosecutors to find a guilty verdict, and deliver justice. This pressure is lessened in cases involving merely a life sentence.

The death penalty is imposed arbitrarily. Factors such as race and location that should not affect application of the death penalty instead have a heavy bearing on it. According to the Death Penalty Information Center, 76% of the murder victims in cases that resulted in an execution were white, yet only 50% of murder victims in general are white. A disproportionate amount of murderers given the death sentence are black, and numerous studies have concluded that people accused of murdering white victims rather than black victims are more likely to receive the death penalty.

Certain locations impose the death penalty at a significantly higher rate than the rest of the nation. 29 counties, fewer than one percent of the counties in the United States, implemented about 50% of all death penalty sentences between 2004 and 2009. Factors contributing to this may include the abilities of the local prosecutor, the power of the defense attorney, and racial aspects of the county. Other studies suggest that political pressures on judges may have an impact. None of these factors should affect implementation of the death sentence, but they do. Therefore, the death penalty is awarded arbitrarily.

Individuals sentenced to death usually spend prolonged amounts of time on death row awaiting their execution. The 35 executions that occured in 2014 took place an average of 18 years after the initial conviction of the prisoners. As of the same year, the last 10 prisoners executed in Florida were administered 25 years after conviction on average. As of 2015, the average delay was 18 years, and given the current rate of executions, the average prisoner on death row could expect to wait 37.5 more years before being executed. The customary delay length has increased significantly, even since 1960, when the average wait was two years.

These delays are cruel. In People v. Anderson, the California Supreme Court held that, “The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out.” Indeed, the adverse effects of awaiting execution for so long cannot be understated. Most death row inmates are kept in isolation for 22 hours per day or more. A number of studies have documented the mental deleterious harms caused by such confinement, including but not limited to causing prisoners to experience “anxiety, panic, rage, los of control, paranoia, hallucinations, and self-mutilations,” according to a 2006 Washington University study.

Such effects can only be increased by the uncertainty as to when the execution will be carried out. In 1890, the Supreme Court recognized that when a prisoner is awaiting execution on death row, “one of the most horrible feelings he can be subjected during that time is the uncertainty during the whole of it.” The delay referenced by the Court was a mere four weeks, nothing compared to today’s average of 18 years. Many prisoners have had their death warrants revoked and reissued numerous times before their execution. Sometimes this happens with little time before the execution is to take place. Willie Manning’s execution was stayed by the Mississippi Supreme Court just four hours before it was to take place, and he was exonerated at a retrial two years later.

It is evidence of the horrid conditions faced on death row that so many inmates (11% according to ACLU) drop their appeals and volunteer to be executed. However, despite their clear unconstitutionality, such delays are necessary to satisfy that other constitutional tenet of due process. It is because of the opportunities for appeals and retrials that must be afforded prisoners that delays are often so long. If the process was in some way rushed, and opportunities for post-conviction relief diminished, a much higher post-execution exoneration rate would surely follow, and the reliability of the process would decline.

The primary justification of the death penalty relies on the need for deterrence and retribution. Because of the lengthy delays necessitated by the nature of the punishment, neither of these objectives are achieved. It is unlikely that any free individual will be significantly deterred by an execution that occurs 18 years after the crime took place. Deterrence is also unlikely given that so few death row inmates today are actually executed. Of the 8,466 inmates given a death sentence since 1973, only 16% have been executed. 42% have had their convictions overturned or their sentences commuted. Most studies on capital punishment’s deterrent effect recognize little to no benefit, based on comparing homicide rates in states with and without the death penalty.

The retribution aspect, which would hope to serve primarily the family and associates of the victims of the crime, is also lacking. It is unlikely that an 18 year process of legal uncertainty would award relatives the emotional liberation that capital punishment intends. Communities and families change in that amount of time, and find solace in other ways. This is especially true considering that such a long wait is not just possible but expected, making it quite unreasonable for relatives to wait eagerly in anticipation of the execution.

The death penalty is unreliable, arbitrary, and cruel due to the prolonged delays associated with its implementation. Many states, such as Washington, have recognized this, and have abolished it. 30 states have either abolished the death penalty or have not implemented it since 2007. Between 1986 and 1999, an average of 286 people were sentenced to death annually. Those numbers have generally declined since the turn of the century. In 2013, only 73 people were sentenced to death. The rate at which the death penalty is imposed and implemented has also decreased dramatically in recent years, since 98 executions in 1999 down to 23 executions in 2017.

Clearly states and courts have recognized that the death penalty violates the Eighth Amendment. The direction of change is clear. It is the duty of our federal government to recognize that change, and act accordingly. It is their duty to do so before another innocent person is executed, before a guilty one is awarded death arbitrarily, before the 2,698 inmates on death row have to suffer another minute waiting their demise with anticipation, anxiety, and little hope.


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