The summer months of 1972 were bookended with a “second rate burglary” at the Democratic National Committee’s headquarters and the murder of 11 Israeli athletes in at the Munich Olympics. In the middle of these events, the Supreme Court issued a decision that was deemed an incredible advance in civil rights, Furman v. Georgia. The June 29, 1972 ruling supported a death penalty moratorium and appeared to signal a shift in the United States’ attitude toward the practice. It seemed as though the nation would join with the vast majority of industrialized countries and permanently abandon capital punishment. Within four and a half years, Gary Gilmore would be executed at the hands of a five-man firing squad in a remote Utah prison.
Thirty years after the Furman ruling, the United States is once again engaged in a crisis of conscience with the death penalty. On Wednesday, the New York City Council became the 73rd elected body in the nation to call for a death penalty moratorium. Studies, such as the Liebman Study conducted at Columbia University and the Illinois Governor’s Commission on Capital Punishment Report and Appendices, have shown the complete failure of the death penalty to be applied judiciously. Instead, the poor and minorities continually receive inadequate legal counsel and are disproportionately sent to death row. These procedural failures have generated popular doubt as to whether the death penalty is being applied reasonably in this country.
The current death penalty debate springs from Furman and the decision four years later which permitted states to implement capital punishment again, Gregg v. Georgia. After the Furman ruling, Texas, Georgia and Florida instituted reforms to capital trials which the Supreme Court deemed adequate. The decision required capital trials to be separated into a guilt phase and a sentencing phase, automatic review at the appellate level, proportionality review and the implementation of sentencing guidelines. Despite the latent possibility of an end to the practice, capital punishment was quickly reinstated and enshrined into the justice system.
The period between the Furman ruling and Gilmore’s execution is eerily similar to recent times. In the past two weeks, the Supreme Court has issued two decisions in Ring v. Arizona and Atkins v. Virginia which will restrict the death penalty in the United States. Ring, which calls into question hundreds of death sentences that were not determined by juries and Atkins, which bars the execution of the mentally retarded, have been lauded as significant civil rights advances.
Again, death penalty opponents support the rulings as important steps to turn back the advance of barbarism. But while these rulings will save individuals from the scourges of lethal injection and the electric chair, the practice will persist. Furman’s complete inability to prevent capriciousness should prevent anyone from believing that either Ring or Atkins will ensure an equitable or just application of the death penalty in the future.
While practical objections to capital punishment have become de rigueur, objections to its morality are peripheral. Moral challenges have done little, if anything, to shape policy. It is ultimately a retributive punishment and as such has no place in the realm of government action. It advances the worst aspects of the human spirit, corrupting both the governments that initiate it and the individuals who seek it. These views need to be more prevalent in public discourse if the death penalty is to be abolished in this nation.
The need for widespread moral opposition to the death penalty is especially acute at this moment in history. With the Justice Department likely to seek the death penalty against individuals associated with terrorism and the growth of the federal application of death penalty, there now exists the possibility of a resurgence of capital punishment in this nation.
It is time to face the demon, itself. Skirting the issue on the marginalia of statistical evidence will not accomplish an acceptable end. But allow the barbarism to continue unchallenged and victorious. Former Chief Justice Earl Warren wrote in Trop v. Dulles that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” It is our duty to create a society that no longer accepts the death penalty within its standards of decency.
Zac Peskowitz can be reached at email@example.com.