« "American Exceptionalism in Crime and Punishment" | Main | Detailing increase in felony convictions nationwide in modern times »

January 2, 2018

NY Times again forcefully calls for Supreme Court to end the use of the death penalty

The New York Times editorial page has long advocated for the abolition of the death penalty, and it started the new year with another long and forceful editorial on this front.  Headlined "Capital Punishment Deserves a Quick Death," here are excerpts:

As the nation enters 2018, the Supreme Court is considering whether to hear at least one case asking it to strike down the death penalty, once and for all, for violating the Eighth Amendment’s ban on cruel and unusual punishments.

Whether the justices take that or another case, the facts they face will be the same: The death penalty is a savage, racially biased, arbitrary and pointless punishment that becomes rarer and more geographically isolated with every year. In 2017 the total number of people sitting on death rows across America fell for the 17th straight year. In Harris County, Tex., the nation’s undisputed leader in state-sanctioned killing, the year passed without a single execution or death sentence — the first time that’s happened in more than 40 years.

Still, Texas was one of just two states — Arkansas is the other — responsible for almost half of 2017’s executions. And nearly one in three of the nation’s 39 new death sentences last year were handed down in three counties: Riverside in California, Clark in Nevada and Maricopa in Arizona.

It would be tempting to conclude from this litany, which is drawn from an annual report by the Death Penalty Information Center, that capital punishment is being reserved for the most horrific crimes committed by the most incorrigible offenders. But it would be wrong. The death penalty is not and has never been about the severity of any given crime. Mental illness, intellectual disability, brain damage, childhood abuse or neglect, abysmal lawyers, minimal judicial review, a white victim — these factors are far more closely associated with who ends up getting executed. Of the 23 people put to death in 2017, all but three had at least one of these factors, according to the report. Eight were younger than 21 at the time of their crime....

The rest of the developed world agreed to reject this cruel and pointless practice long ago. How can it be ended here, for good?

Leaving it up to individual states is not the solution. It’s true that 19 states and the District of Columbia have already banned capital punishment, four have suspended it and eight others haven’t executed anyone in more than a decade. Some particularly awful state policies have also been eliminated in the past couple of years, like a Florida law that permitted non-unanimous juries to impose death sentences, and an Alabama rule empowering judges to override a jury’s vote for life, even a unanimous one, and impose death.

And yet at the same time, states have passed laws intended to speed up the capital appeals process, despite the growing evidence of legal errors and prosecutorial misconduct that can be hidden for years or longer. Other states have gone to great lengths to hide their lethal-injection protocols from public scrutiny, even as executions with untested drugs have gone awry and pharmaceutical companies have objected to the use of their products to kill people.

Last summer, Justice Ruth Bader Ginsburg suggested that the death penalty would eventually end with a whimper. “The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” Justice Ginsburg said at a law school event. “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

That’s a dispiriting take. The death penalty holdouts may be few and far between, but they are fiercely committed, and they won’t stop killing people unless they’re forced to. Relying on the vague idea of attrition absolves the court of its responsibility to be the ultimate arbiter and guardian of the Constitution — and specifically of the Eighth Amendment. The court has already relied on that provision to ban the execution of juvenile offenders, the intellectually disabled and those convicted of crimes against people other than murder.

There’s no reason not to take the final step. The justices have all the information they need right now to bring America in line with most of the rest of the world and end the death penalty for good.

January 2, 2018 at 02:46 PM | Permalink


Is Japan part of the developed world?

Posted by: Joe | Jan 2, 2018 3:18:40 PM

The statistics they cite actually cut against abolishing the death penalty in my view. The death penalty should be rare...it is rare. The fact that it is arbitrary is a function of the resistance to the DP, not the DP itself. Whether it is pointless is in the eye of the beholder. The only claim that has any merit is that it may be racist but that is in hot dispute.

I wouldn't cry if the DP went away but the caterwauling about it I don't understand. If we really wanted to stop killing people we would abolish war.

Posted by: Daniel | Jan 2, 2018 5:11:51 PM

The NYTimes editorial page is ridiculous.

If the Supreme Court declares the DP unconstitutional, states should ignore it and execute anyway. Lawlessness should be resisted.

Posted by: federalist | Jan 3, 2018 1:11:48 AM

Death penalty is a human sacrifice.

Posted by: Claudio Giusti | Jan 3, 2018 6:06:39 AM

I agree with Claudio, 100%, and I am not being sarcastic. The American penalty is stupid. Adopt the Italian death penalty, immediately. In Italy, violent thugs are repeatedly and painfully stabbed by other prisoners when they get too annoying or threatening in prison. Cost? Probably a carton of cigarettes, instead of $millions to appellate lawyers and judges. The European Union has branded Italian prisons to be violations of human rights, but they are dismissed. Let these Brussels bureaucrats take a shift as prison guards. Show us how to handle highly dangerous and murderous prisoners. Maybe the criminals would get better with a hug.

I have to note that a licensed attorney, here, has finally read Article I Section 1 of the constitution, in its plain high school English. The Supreme Court is not authorized to make, to repeal, nor to amend any law in the United States.

Posted by: David Behar | Jan 3, 2018 9:31:26 AM

"The fact that it is arbitrary is a function of the resistance to the DP, not the DP itself."

It is arbitrary for various reasons as it was in the past. To cite but one is a tad arbitrary.

Posted by: Joe | Jan 3, 2018 10:44:54 AM

DB is a pathological liar.

Posted by: Claudio Giusti | Jan 3, 2018 3:15:36 PM

or alternatively an idiot.

Posted by: Claudio Giusti | Jan 3, 2018 3:16:43 PM

Everything has its consequences. TO Abolish the death penalty means imprisoning people for life. Very costly, and a life that is clearly not worth living. so what is the real underlying motivation? Punishment? that benefits no one. Avoidance? that only leads to another form of consequence. Meanwhile, the root problem is never addressed: soldiers can kill and do kill civilians, calls it whatever, and there are no consequences except revenge. So, we allow and license killing, then forbid the same 'killing penalty. All this results from 'ideologies which never correspond to fundamental biological reality, and can never succeed in their intentions.

Posted by: Josef | Jan 3, 2018 6:32:16 PM

To eliminate the death penalty does not eliminate any of the behaviors which motivated it in the first place. It just avoids someone, all taking responsibility to cary it out. There is zero benefit across the board. meanwhile, a policeman can shoot someone down on the street, and no death penalty. -J.DellaGrotte, retired professor of history, and practicing psychology.

Posted by: Josef | Jan 3, 2018 6:36:34 PM

“Those who would abolish capital punishment are not urging British to embark upon a new and hazardous experiment, or traverse uncharted seas, but merely to follow the lead of the many other countries where the death penalty as already dispensed with.”
Calvert Roy. Capital Punishment in the Twentieth Century. Putnam. London. 1927 p 45

Posted by: Claudio Giusti | Jan 4, 2018 5:54:43 AM

“Indeed, it would have been odd if it had transpired that Englishmen alone are so peculiarly brutal by nature that they require some special deterrent from murder which nearly all the civilised countries of the world have found unnecessary in practice - in many cases for generations.”
Gerald Gardiner, Capital Punishment as a Deterrent, London, Gollanz, 1956. p 56

Posted by: Claudio Giusti | Jan 4, 2018 5:55:08 AM

Hi, Claudio. Your dispute is not with me. It is with the European Court of Human Rights. I am just repeating their conclusions about the state of prisons in Italy.

Posted by: David Behar | Jan 4, 2018 12:54:25 PM

Hey !! Coglione !!! The problem is that our 50 - 60.000 prisoners are too many for our prisons, and it is NOT what you say about "italian Death penalty" You IDIOT.

Posted by: Claudio Giusti | Jan 4, 2018 5:12:51 PM

Claudio. In your country, they call it "suicide." It just happens to a lot of violent, and difficult prisoners. I prefer the more candid, "Italian death penalty." I think the Italian justice system is so cool.

Posted by: David Behar | Jan 4, 2018 8:52:03 PM

Idiozie !!!!! Suicide is NOT homicide
"In Italy, violent thugs are repeatedly and painfully stabbed by other prisoners when they get too annoying or threatening in prison"
idiocy, stupidity and fraud.

Posted by: Claudio Giusti | Jan 5, 2018 6:29:44 AM

In Italy, they call prison murders, suicide. It is an excellent policy.

Posted by: David Behar | Jan 6, 2018 2:40:11 PM

"TO Abolish the death penalty means imprisoning people for life."

Isn't required but would result in some more people being imprisoned for life, probably, but that happens now for murder and lesser crimes (in the scheme of things especially) anyways. And, few people "volunteer" to be executed, so most seem to prefer even life in prison than execution. They seem to think life is worth living there.

Just war and such isn't the same as the death penalty with all its specific issues though soldiers killing over history often was wrong too. Ultimate punishments provide consequences without the state unduly taking life. Net, the respect for life and due process furthered by ending the death penalty will to some degree help with problems in place. They won't be ended in an imperfect world.

Killing an arbitrary number of people by the state via the death penalty is not a good use of government power overall. Not sure what the police shooting thing tells us either. Some shootings are justified, not matter who does it. Some have special consequences, like all crimes, that warrant less punishment.

If police murder with special consequences, they are liable to the death penalty too.

Posted by: Joe | Jan 7, 2018 11:42:06 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB