Arbitrary and Capricious Application of Death Penalty Persists Three Decades After Furman v. Georgia

June 27, 2003 12:00 am

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WASHINGTON-More than 30 years after the Supreme Court called for a temporary halt on executions in the landmark Furman v. Georgia decision, the death penalty is still being applied in an arbitrary, discriminatory and capricious manner, according to a report by the American Civil Liberties Union’s Capital Punishment Project released today to coincide with this month’s anniversary of the decision.

The report examines some of the most persistent flaws in the death penalty system such as wrongful convictions, inadequate representation, geographic disparity and socioeconomic and racial bias, issues raised by the Court in Furman that have yet to be adequately resolved.

“”Since 1973, 108 people who were on death row were found to be innocent,”” said Diann Rust-Tierney, Director of the ACLU’s Capital Punishment Project. “”More than half of those came in the last 10 years, which means that one person has been exonerated for every eight executed. There are thousands of people on death row today and we know from the past that many are innocent.””

The report, The Anniversary of Furman v. Georgia — Three Decades Later: Why We Need a Temporary Halt on Executions, comes three decades after the Supreme Court commuted the sentences of 629 death row inmates and enacted the first moratorium on executions as a result of its historic 1972 ruling in the Furman case. State lawmakers scrambled to rewrite their capital punishment statutes, and four years later the Court upheld newly crafted death penalty statutes in Gregg v. Georgia. Executions resumed in 1977.

According to the report, of the 859 executions carried out since 1977, 82 percent were carried out by 10 states; more than half of those executions were in Texas and Virginia.

The category of crimes that can result in a death sentence vary significantly from state to state. For instance, 22 states allow for the execution of a person who committed a crime while under the age of 18, while 16 states do not. Felony murder-an unintentional murder in the course of a serious crime-is a capital crime in New Jersey, but not in Maryland.

“”A sentence of death is supposed to be reserved for the most serious crimes,”” said Rachel King, State Campaign Coordinator for the ACLU’s Capital Punishment Project and author of the report. “”But in 2003, a death sentence is still much more likely to be determined by what kind of counsel you can afford, where you live and the color of your skin.””

The ACLU report also reviews state studies that highlight the harmful effects and implications of ineffective assistance of counsel. In one example, a report by the Common Sense Foundation of North Carolina, Life and Death Lottery: Capital Defendants and the Lawyers Who Fail Them, found that one out of every six death row inmates had been represented by lawyers who had been disbarred, suspended or otherwise disciplined by the state. Studies in Texas, Pennsylvania and Georgia have uncovered similar problems.

In a welcome sign that the Supreme Court recognizes the right to effective assistance of counsel, the Justices this week overturned the death sentence of a Maryland man in Wiggins v. Smith. Ruling on the final day of the Term, the Court found that the due process rights of Kevin Wiggins had been violated and acknowledged that defense counsel must at the very minimum explore a client’s history as well as the possible mitigating circumstances surrounding the commission of a crime. To do less, especially in a capital case, is to fail to provide the effective assistance of counsel that the Constitution requires.

The ACLU report is available online at /node/22031

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