Execution Pace Should Tell Us Something

<i> Vivian Berger is a law professor at Columbia University and of counsel to the NAACP Legal Defense and Educational Fund. Jack Greenberg, vice dean and professor of law at Columbia, was for many years director-counsel of the fund</i>

Former Justice Lewis F. Powell Jr. has suggested that, in light of the multiple appeals that postpone and often prevent executions, lawmakers “should take a serious look at whether retention of a punishment that is not being enforced is in the public interest.” These remarks, made at the American Bar Assn. convention in August, echoing statements that he made in May, 1983, while still on the bench, reflect Powell’s impatience with the system’s persistent inability to ensure fair, swift and final review of death sentences. After his 1983 address, the courts changed various rules to speed the process, but the pace of executions has not accelerated much, and each year the Death Row population grows.

Although more than two-thirds of the states authorize capital punishment, the country remains deeply ambivalent. Americans want to punish crime severely, but they also share the values of the other Western democracies, all of which have abolished the death penalty. This suggests to us that it is highly unlikely that the country will ever move vigorously to execute all those who have been sentenced to death.

A nation truly committed to the death penalty would impose it more often. There are about 20,000 non-negligent killings each year in America, and in states that retain the death penalty, those killers are probably all potential candidates for the death sentence. But, most often, persons who might be convicted of murder and sentenced to death avoid the ultimate penalty because of the interplay of prosecutorial and juror discretion. Plea- or sentence-bargaining is the rule, not the exception; the state frequently does not request death, or the jury opts for life. When juries choose death, they often feel that they are just “sending a message,” not actually condemning the defendant to die, a mind-set that many prosecutors cultivate through comments about the courts correcting “mistakes.”

That the past dozen years have witnessed only 101 executions can hardly be attributed to dilatory lawyers. Fourteen states have abolished the death penalty; 29 have not had an execution in 20 years; 63 of the 101 executions since 1967 have been in Texas, Florida and Louisiana. But in no state is there a commitment to allocate resources to execute more. The fact that roughly 41% of capital judgments are reversed in state courts and 40% of the remainder in federal courts (usually the sentence alone), reveals a judiciary perhaps as uncomfortable with the death penalty as much of the public appears to be. Life-or-death stakes prompt all but the most hardened judges to scrutinize the sentence with care. Since such examination has repeatedly uncovered grave constitutional violations--sometimes after prior petitions have been rejected--society’s continued, if grudging, tolerance for death delayed, or even denied, indicates basic reluctance to substitute efficiency for justice.


If we infer from this that the nation does not want the reality of fully enforced capital punishment, as opposed to occasional symbolic executions (there have been only eight this year) what does that suggest for the future? The experience of the rest of the Western world may prove instructive; after all, in some ways the West is a single society. All countries whose traditions and values resemble ours have done away with the death sentence. The European Convention of Human Rights now prohibits the death penalty. A movement to ban the death penalty is even gaining strength in the Soviet Union! The anomaly is that America has failed to follow the Western democracies in rejecting capital punishment, not that we have been so half-hearted in our embrace of it.

The only convincing explanation for the persistence of executions here is race. Almost half of the approximately 2,000 inmates now on Death Row belong to minority groups. Blacks make up 40% of executed persons. Studies consistently show that killers of whites are much more likely to receive death than murderers of blacks; no white has been executed for killing a black. In the last decade all executions of persons who did not consent to die have occurred in former slave-holding states.

We predict that the backlog on Death Row will grow. There may be just enough executions to create the illusion of a functioning death penalty. Perhaps when Death Row has burgeoned by another few thousand, the public will notice that capital punishment doesn’t and can’t work, and will pursue Justice Powell’s alternative recommendation: abolition.