50 years after Furman ruling, death penalty may come down to states, experts say

June 29 (UPI) -- Fifty years after the U.S. Supreme Court imposed a temporary moratorium on the death penalty -- calling it arbitrary and capricious -- efforts to abolish capital punishment will likely find more success at the state level, experts say.

On June 29, 1972, the high court ruled 5-4 that the death penalty violates the Constitution's Eighth Amendment protection against a cruel and unusual punishment. The case, Furman vs. Georgia, involved William "Henry" Furman, who was sentenced to death for the 1967 murder of Coast Guard Petty Officer William Micke Jr. during a home burglary.

Furman said Micke was shot when he tried to run from the Savannah residence and he tripped and fell, causing his gun to fall and fire, killing Micke. Even though he didn't pull the trigger, Furman was sentenced to death because the slaying happened while he was in the process of carrying out a felony -- the robbery.

The Supreme Court heard two other cases consolidated under the Furman vs. Georgia case, Jackson vs. Georgia and Branch vs. Texas, in which the defendants were sentenced to death for rape.

The court ruled in favor of Furman, with Justices William Douglas, Potter Stewart and Byron White saying the administration of the death penalty was arbitrary and inconsistent across jurisdictions.

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual," Stewart wrote in his opinion. "For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

"I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

The court's ruling reduced all death sentences in the United States to life in prison, and Furman was paroled in 1984. But the halt on executions was ultimately temporary.

The ruling forced states to enact laws to ensure that the death penalty was used in a consistent manner, and the court ruled in 1976's Gregg vs. Georgia that capital punishment could be reinstated.

Death penalty today

File Photo by Bonnie Cash/UPI

In the five decades since that ruling, the Supreme Court has ruled on individual death penalty cases and further narrowed its use, protecting defendants under the age of 18 and those with intellectual disability. But the court's current conservative majority -- due largely to the three justices appointed by former President Donald Trump -- is unlikely to rule in favor of a wholesale ban of the death penalty anytime soon.

Anthony Amsterdam, who, while working with the NAACP Legal Defense Fund argued the Furman vs. Georgia case, wrote in a recent article in Amicus Journal that death penalty opponents would be better served mounting trial and state-level defenses.

"A two-thirds majority of the court, including mid-50-year-olds like [Brett] Kavanaugh and [Neil] Gorsuch, together with [Amy Coney] Barrett -- who has just hit 50 -- stands as a rock-solid wall against federal constitutional invalidation of capital punishment," he wrote.

"These are not people persuadable by law or reason. They are ideologues whose keen intelligence is devoted exclusively to vindicating their instinctively authoritarian and punitive predispositions."

Since the death penalty's reinstatement nearly 50 years ago, support among the American people has declined. In a 1976 Gallup poll, 66% of Americans favored the punishment, while 26% opposed and 8% had no opinion. The most recent survey in October found 54% in favor, 43% opposed and 3% had no opinion.

High favorable opinions of the death penalty coincided with its greatest use in the 1990s, with 80% in favor, 16% opposed and 4% having no opinion in 1994.

Robert Dunham, executive director of the Death Penalty Information Center, told UPI that if the Supreme Court were to rule against the death penalty, it would first have to determine there's "been an evolved national consensus" against it.

"In order to build to that point in a federal constitutional challenge, you need to, in effect, create a nationwide consensus by having death penalty statutes at the state level repealed and having the use of the death penalty at the county level shrink," he said.

According to data compiled by the DPIC, death sentences have declined by about 90% since peaking at more than 300 a year in the mid-1990s. There have been fewer than 50 new death sentences a year since 2015.

Executions have also dropped 75% since a high of 98 in 1999, to an average of 23.6 a year in the five years before the COVID-19 pandemic. The pandemic delayed several executions originally scheduled to take place in 2020 and 2021.

Dunham echoed Amsterdam's assertion that the focus of abolitionists has to shift to the states.

"The shift is that one by one, abolitionists need to persuade legislatures to repeal their death penalty statutes or litigators need to persuade state courts that the administration of their death penalty statutes is unconstitutional," Dunham said.

That number of states with the death penalty on the books has been coming down in recent years. Currently, 23 states and Washington, D.C., have abolished the death penalty, and three others have governor-imposed moratoria. Another 13 states that allow the death penalty haven't carried out an execution in at least 10 years.

The DPIC on Tuesday released a newly compiled comprehensive database of every death sentence handed down since the Furman vs. Georgia ruling, allowing the organization to do a deep dive on trends over the past 50 years.

Dunham said an analysis of the more than 9,700 death sentences in the database found that 34 counties -- fewer than 1.1% of all counties in the United States -- accounted for half of everyone on death row as of Jan. 1, 2021. Over the past 50 years, 2.4% of all counties account for half of all death sentences.

"Whether you get capitally charged, capitally convicted, sentenced to death and executed depends more than anything else on what side of the county line the offense occurred," he said. "What it comes down to ... is the whims of individual prosecutors. That's why you've got these outliers."

Fewer than one in six death sentences result in execution, and death sentences are three times more likely to be reversed in a court decision than to result in an execution. At least 189 people sentenced to death have been exonerated since 1973 -- one for every 8.2 people executed.

Meanwhile, race has continued to be a factor in death sentences since the Furman ruling, 52.8% of all people sentenced to death and 44.3% of all those executed being people of color. Defendants of color make up 64.2% of exonerees and 83.1% of those later to be found ineligible for the death penalty because of intellectual disability.

"We get it wrong," Dunham said. "We do it based on race, we do it based on place and we do it based on time.

"Fifty years ago, the United States Supreme Court said the death penalty was imposed in a manner that was arbitrary and capricious. We now have a mountain of evidence ... that suggests we don't do it any better today."