Austin Sarat, of Amherst College writes on The Crime Report:
The state of Oklahoma put
James Coddington to death on Aug. 25 for the 1997 murder of a
73-year-old friend who refused to give him money to buy drugs.
It marks the beginning of a busy period at the
Oklahoma State Penitentiary’s execution chamber.
Last month, the state
announced plans to carry out the death sentence of 25 people over the
next couple of years.
As a scholar who has long followed
the capital punishment debate in the U.S., I know that Oklahoma’s plan
runs against the grain of the death penalty’s recent history. Over the past
several years both the number of death sentences imposed and executions carried
out across the U.S. has
Since 2007 more states have abolished
the death penalty than in any comparable 15-year period in American
history. And in November 2020 America elected its first
president ever to openly oppose capital punishment.
Today, fewer jurisdictions are using the death
penalty, but some – like Oklahoma – seem to be doubling down.
America’s death penalty is now defined, as the
nonprofit Death Penalty Information Center noted in
a 2021 report, “by two competing forces: the continuing long-term erosion of capital
punishment across most of the country, and extreme conduct by a dwindling
number of outlier jurisdictions to continue to pursue death sentences and
Looked at as a whole, capital punishment in the
United States, as Amnesty International puts
it, is used “against the most vulnerable in society, including the poor,
ethnic and religious minorities, and people with mental disabilities.”
the argument against the death penalty in ways that appeal to
American’s sense of procedural fairness and equal treatment has been a tactic
of death penalty abolitionists for decades – and may help explain the gradual decline in
popular support for executions since the early 1990s.
Yet the U.S. appears to be at something of a stalemate when
it comes to the death penalty – the country is seemingly unable to either
achieve fairness in capital sentencing or to abolish the death penalty once and
My research on capital punishment suggests that
both the arguments of
today’s abolitionists and the current stalemate can be traced back
half a century to the Supreme Court’s 1972 decision in a landmark death penalty
case: Furman v. Georgia.
For a time, that decision stopped the death
penalty in its tracks and offered a stinging critique of its
unfairness. Yet it left the door open for states to implement or reform their
own laws – and some chose to preserve capital punishment.
The Furman Framework
The Furman litigation was the culmination of a
campaign conducted by
a group of lawyers under the auspices of the NAACP Legal Defense Fund. They hoped the
Supreme Court would strike down the death penalty because of its demonstrated
racial discrimination and other inequities.
What they got instead was something less.
The court issued a cryptic
and unusual “per curiam” decision – one which is a given in the name of the
court rather than any specific judges.
It read: “The Court holds that the imposition and
carrying out of the death penalty in these cases constitute cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments.” The ruling
was narrow in scope. It set out that if a death sentence was handed out in a
capricious or discriminatory nature, then it would be unconstitutional.
But the NAACP lawyers were unable to get a
majority of the court to agree on a set of reasons for this judgment. In fact,
five justices each wrote separate opinions concurring in the judgment of the
court. The other four justices each wrote separate dissenting opinions.
Justice William Douglas,
not think the death penalty was always unconstitutional, used his opinion
to condemn the arbitrary and discriminatory way in which death sentences were
imposed under laws that gave complete discretion to the sentencing judge or
Because judges or juries rarely handed down death
Potter Stewart wrote that any particular capital defendant would have
to be very unlucky to get one. It was, Stewart said, like “being struck by
Byron White agreed and concluded that, because they were rarely
imposed, they could serve no legitimate punitive purpose.
The dissenters were similarly split in their views,
though they generally agreed that the question of whether the death penalty
should be ended was a legislative and not a judicial question.
The Furman decision was
both a remarkable achievement for the NAACP lawyers and a
disappointment for those seeking to abolish capital punishment in this country.
It was remarkable because, for the first time in
American history, the court insisted that if the
U.S. were going to use death as a punishment, the government had to take
extraordinary steps to ensure that it was administered fairly.
It was a disappointment because the court did not
say, once and for all, that capital punishment could not be squared with the
The Return of Capital Punishment
Some states, such as Louisiana and North Carolina,
enacted mandatory death penalty statutes, eliminating discretion entirely from
the death penalty system. Others – Georgia, Florida and Texas – chose a
different path, retaining the punishment but guiding discretion by narrowing
and specifying the class of death-eligible crimes.
Four years after Furman, the death penalty was back
before the Supreme Court. The question was whether either of those approaches
adequately addressed the concerns expressed by the justices who concurred with
the Furman decision.
This time the court’s verdict was less equivocal,
though no less divided. In a 5-4 decision, it struck
down mandatory death sentencing statutes. In addition, a seven-justice
majority found guided
discretion statutes to be constitutional.
Despite compelling evidence that narrowing and
specifying the class of death-eligible defendants did not cure the problems of
unfairness identified in Furman, the Supreme Court again
upheld the death penalty in 1987.
In McCleskey v. Kemp, it ruled
that statistical evidence could not be used to prove that racial discrimination
persisted even after the implementation of the Furman-inspired reforms.
Fifty years after Furman, arbitrariness and
discrimination remain persistent
features of America’s death penalty system.
Today Americans are
still arguing about fairness in that system. And the case against the death
penalty continues to be made on the terms that Furman’s concurring opinions
But Furman also initiated a process that lent
a veneer of legal respectability to the death penalty system. It has
allowed states such as Oklahoma to keep the machinery of death running by
making procedural changes rather than addressing the injustices that continue
to plague capital punishment in the United States.
Sociologist and law professor David
observed that Furman and the court decisions that took up its mantle
have served “to enhance the perceived lawfulness and legitimacy of capital
punishment” and acted “as a force for its conservation.”