Abstract

Excerpted From: John D. Bessler, The Gross Injustices of Capital Punishment: A Torturous Practice and Justice Thurgood Marshall's Astute Appraisal of the Death Penalty's Cruelty, Discriminatory Use, and Unconstitutionality, 29 Washington and Lee Journal of Civil Rights and Social Justice 65 (Spring, 2023) (320 Footnotes) (Full Document)

The history of capital punishment is rife with discrimination and other violations of civil and human rights. In Furman v. Georgia, the per curiam, five-to-four U.S. Supreme Court decision declaring America's death penalty a “cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment,” Justice William O. Douglas--after examining English and American history with the majority, observing in his concurrence that “[t]hose who wrote the Eighth Amendment knew what price their forebears had paid for a system based not on equal justice, but on discrimination.” “The high service rendered by the 'cruel and unusual’ punishment clause of the Eighth Amendment,” Justice Douglas emphasized, “is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.” Justice Douglas concluded that statutes allowing for the death penalty's “discretionary” application “are unconstitutional in their operation” as they are “pregnant with discrimination, and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual’ punishments.”

The death penalty's arbitrary and discriminatory application drove the majority's decision in Furman. In his concurrence, Justice Potter Stewart wrote that the death sentences under review “are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” emphasizing that “the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” “My concurring Brothers,” he added, “have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.” In his own concurrence, Justice Thurgood Marshall--also examining English and American history--concluded that America's founders “intended to outlaw torture and other cruel punishments.” “Regarding discrimination,” Justice Marshall wrote, “it has been said that '[i]t is usually the poor, the illiterate, the underprivileged, the member of the minority group--the man who, because he is without means, and is defended by a court-appointed attorney--who becomes society's sacrificial lamb ....”’ “[A] look at the bare statistics regarding executions is enough to betray much of the discrimination,” Marshall pointed out, citing data on those executed since 1930, evidence of racial and gender discrimination, and how the death penalty falls upon the most vulnerable.

The U.S. Supreme Court's June 29, 1972 decision in Furman, in which Justices Thurgood Marshall and William Brennan and three of their colleagues wrote of the death penalty's unconstitutionality in separate concurring opinions, came close on the heels of the California Supreme Court's February 18, 1972 decision in People v. Anderson. In the latter case, the California Supreme Court considered the case of Robert Anderson, convicted of first-degree murder, attempted murder, and first-degree robbery and sentenced to die by a jury. Anderson argued that the death penalty constituted a cruel and unusual punishment and contravened both the U.S. Constitution's Eighth Amendment and article I, section 6 of California's constitution. In that case, the California Supreme Court--applying state law--concluded that capital punishment “is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state.” “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,” the California Supreme Court ruled. “Penologists and medical experts agree,” California's highest court added, “that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”

While some predicted the American death penalty's demise in Furman's wake, thirty-five states soon reenacted death penalty laws and the nation's highest court felt compelled to revisit the subject just four years later. In 1976, the U.S. Supreme Court--bowing to then-existing public sentiment as expressed by state legislatures seeking to reinstate capital punishment--reversed course and upheld the death penalty's constitutionality in Gregg v. Georgia and two companion cases. Justice Marshall--deeply affected and now forced to become a dissenter--wrote in his dissent in Gregg that he continued to view the death penalty as “a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” Marshall pointed out that “the American people know little about the death penalty,” observing that “an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.” “An excessive penalty is invalid under the Cruel and Unusual Punishments Clause 'even though popular sentiment may favor’ it,” Justice Marshall emphasized. In his dissent, Justice Marshall noted: “To be sustained under the Eighth Amendment, the death penalty must 'compor(t) with the basic concept of human dignity at the core of the Amendment,’ the objective in imposing it must be '(consistent) with our respect for the dignity of (other) men.”’ “Under these standards,” he concluded, “the taking of life 'because the wrongdoer deserves it’ surely must fall, for such a punishment has as its very basis the total denial of the wrong-doer's dignity and worth.” In Gregg and until his retirement in 1991, Justice Marshall--along with his colleague, Justice William Brennan--regularly expressed the view that the death penalty violates the dictates of the Eighth and Fourteenth Amendments. For Marshall, it was a position informed by his extensive civil rights work and his prior representation of capital defendants.

Since Gregg, the U.S. Supreme Court has upheld the constitutionality of the death penalty in spite of the punishment's inherent characteristics--one of which is that it systematically makes use of threats of death--and the way in which it has been administered. Despite all of the historical data about discrimination presented and relied upon in Furman, and in spite of a massive, highly sophisticated study--the “Baldus study”--showing the death penalty's discriminatory administration, including on the basis of the race of the victim, the U.S. Supreme Court in McCleskey v. Kemp continued to turn a blind eye to what Justice Marshall called capital punishment's “gross injustices.” By a five-to-four vote, the Court in McCleskey held that Georgia's capital punishment law did not violate the U.S. Constitution's Equal Protection Clause or the Eighth Amendment's prohibition of cruel and unusual punishments. The Baldus study, after taking account of 230 variables, concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence; that Black defendants were 1.1 times as likely to receive death sentences as others defendants; and that Black defendants who killed white victims have the greatest likelihood of being sentenced to death.

Justice Lewis Powell cast the deciding vote in McCleskey and wrote the Court's decision. “At most,” Justice Powell wrote for the majority, “the Baldus study indicates a discrepancy that appears to correlate with race.” “Apparent disparities in sentencing,” he stressed in the opinion he very much came to regret after his retirement, “are an inevitable part of our criminal justice system.” The Supreme Court's majority opinion in McCleskey specifically determined that the capital offender had to prove that “the decisionmakers in his case acted with discriminatory purpose” and that statistical evidence was insufficient as proof of such discrimination. “[W]e hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose,” Justice Powell wrote for the Court, rejecting Warren McCleskey's claim, thereby sending McCleskey--a Black man--to his death. In contrast, Justice Brennan--in a dissenting opinion joined by Justice Marshall--wrote: “Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case.” Citing the damning statistics from the Baldus study and Justice Marshall's concurring opinion in Godfrey v. Georgia, Justice Brennan wrote in dissent: “[M]urder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Nothing could convey more powerfully the intractable reality of the death penalty: 'that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it--and the death penalty--must be abandoned altogether.”’

In spite of the Supreme Court's dreadful decision in McCleskey that has yet to be renounced by the nation's highest court, this Article concludes that the death penalty must be seen as a torturous and discriminatory practice and as a clear violation of the U.S. Constitution's Equal Protection Clause and other fundamental and constitutional rights. Part I of the Article shows how, historically, American death sentences have been imposed-- and executions have been carried out--in a highly discriminatory fashion, including on the basis of race. The history of Virginia, for example, illustrates the death penalty's racially discriminatory administration, ultimately leading lawmakers in 2021--among other factors--to do away with the state's ultimate sanction in that commonwealth. Part II then recalls Justice Marshall's astute appraisal of the fatal flaws associated with state-sanctioned killing, arguing that the language of the Civil Rights Act of 1866 and the U.S. Constitution's Eighth and Fourteenth Amendments must be read to forbid capital punishment. Indeed, the immutable characteristics of the death penalty and its highly discriminatory administration should have led the U.S. Supreme Court to permanently prohibit all executions--as a matter of American constitutional law--long ago.

Drawing upon Justice Thurgood Marshall's clear-eyed view of capital punishment's gross injustices, including its discriminatory application, Part III contends that a fair-minded interpretation of the U.S. Constitution demands a declaration by the U.S. Supreme Court that death sentences and executions violate fundamental human rights, including the right to be free from cruelty and torture. The Article, invoking the Eighth Amendment's Cruel and Unusual Punishments Clause and the Fourteenth Amendment's Equal Protection Clause, concludes that America's death penalty laws must be struck down because of their discriminatory use and capital punishment's inherently cruel and torturous characteristics. The death penalty violates human dignity and basic human rights, including of offenders and their family members, and it should be classified as a cruel and unusual punishment and an equal protection violation because all persons (whether guilty or innocent) are entitled to be protected from cruel and unusual and torturous treatment.

[. . .]

Capital punishment--the practice Justice Thurgood Marshall so vocally criticized--has been used for centuries, though the global movement to abolish executions has accelerated substantially since Marshall (as the U.S. solicitor general) predicted in 1965 at a news conference in Stockholm, Sweden, that the death penalty would be abolished throughout the United States. In remarks delivered in the mid-1980s at the Judicial Conference of the Second Circuit, Justice Marshall spoke on the subject of the death penalty--what he called “an element of our criminal justice system about which I have thought and agonized a great deal during my career as an advocate and judge.” In those remarks, Justice Marshall focused not on Eighth Amendment theory or “the intricacies of death penalty jurisprudence,” but on “the practicalities of the administration of the death penalty in this country. He began by lamenting “the extraordinary unfairness that now surrounds the administration of the death penalty,” and highlighted in particular the “very serious mistakes” made by counsel in handling capital cases and the lack of resources devoted to such cases. Justice Marshall also took notice in the wake of Gregg v. Georgia of “the willingness of the courts and the state governments to expedite proceedings in order to bring about speedy executions.” “Execution dates generally are set about one month before the execution is to occur,” Marshall said, emphasizing that “[u]ntil an execution date is set, and the situation becomes urgent,” capital defendants had been unable to secure post-conviction counsel for the collateral review of their cases. “For the capital defendant whose execution looms,” Marshall added, speaking of the frequent rush to judgment in capital cases, “the opportunity for deliberation, consideration, and rebuttal vanishes” as courts expedite proceedings, with one death row inmate put to death after a 4-4 vote on a stay request.

Justice Marshall knew first-hand what was at stake--life or death--in capital cases. While Justice Marshall--in addressing the Judicial Conference of Second Circuit--made concrete suggestions to improve the death penalty's administration, he also made his long-held position on capital punishment clear in those remarks: “I do not mean to suggest that these changes would solve the problems inherent in the death penalty. I continue to oppose that sentence under all circumstances.” Indeed, Justice Marshall filed a final, strongly-worded dissent in a death penalty case--Payne v. Tennessee retiring from the U.S. Supreme Court in 1991. “Power, not reason, is the new currency of this Court's decisionmaking,” Justice Marshall began that dissent, observing that (1) “[f]our Terms ago,” in Booth v. Maryland, “a five-Justice majority of this Court held that 'victim impact’ evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial”; (2) “[b]y another 5-4 vote,” in South Carolina v. Gathers, “a majority of this Court rebuffed an attacking upon this ruling just two Terms ago”; and (3) “having expressly invited respondent to renew the attack, today's majority overrules Booth and Gathers and credits the dissenting views in those cases.” “Cast aside today,” Marshall wrote in his dissent in Payne, “are those condemned to face society's ultimate penalty.” With Justice Marshall announcing his retirement the day Payne was decided, he thus took a parting shot at the death penalty's administration before returning to private life.

Justice Marshall had an unwavering commitment to equal protection of the laws, and he regularly articulated his view that the death penalty violated the U.S. Constitution's prohibition on cruel and unusual punishments. On the 200th anniversary of the U.S. Constitution, Justice Marshall observed that the government devised at the Constitutional Convention in Philadelphia “was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” Referencing societal progress, the emergence of “equality by law,” and “new constitutional principles” pertaining to the U.S. Constitution that “emerged to meet the challenges of a changing society,” Justice Marshall--taking specific note of “the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document” and of “hopes not realized and promised not fulfilled”--indicated his plan “to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.” With the first total abolition of the death penalty in Western societies occurring in Tuscany in November 1786, just months before the Constitutional Convention in Philadelphia, it is long past time for the U.S. Constitution to be interpreted to bar the death penalty's use--a ruling that would forbid a plainly torturous practice, that would protect the universal human right to be free from cruelty and torture, and that would finally vindicate Justice Marshall's vision of the U.S. Constitution as one that protects all equally, safeguarding all individuals from torture, excessive punishments, and gratuitous and unnecessary cruelty.

Professor of Law, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center.