Five Decades After Furman
June 29th, 2022
Fifty years ago today, the Supreme Court ended the death penalty in the United States. To some extent, the opinion in Furman v. Georgia simply put a period on a punishment that had already faded from public consciousness, as there hadn’t been a single execution in the entire country in the more than five years that had preceded the decision. Yet, as soon as the ink dried on Furman, nearly every legislature in the country, including Pennsylvania, rushed to rewrite its death penalty laws to comply with the new opinion and bring capital punishment back to life. And then, as if to prove that the death penalty really was an important weapon in the fight against crime, executions rose to a peak of 98 in 1999.
That number, and the number of death sentences across the country, has been steadily declining since. Over the last three years fewer than 20 executions have taken place per year; Pennsylvania has not seen one this century. Death sentences have dropped as well, from a high of more than 300 per year to consistently less than 50 over the last eight years. One state after another – New Mexico, Illinois, Connecticut, Maryland, New Hampshire, Colorado, Virginia – has gotten rid of capital punishment.
Given this history, a skeptic might fairly suggest that the death penalty is cyclical in popularity, and that the lesson to learn from Furman is simply that states want the ultimate punishment available to them if necessary, and that different generations will determine necessity differently. The reality of capital punishment over the past two decades tells another story, however; a story that was anticipated by Justice Thurgood Marshall in the Furman opinion itself. He noted that the question of the constitutionality of capital punishment rested on “whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable. In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”
Therein lies the rub, and why the popularity of the death penalty is very likely on a permanent decline. The “information presently available” was markedly different during the period after Furman came down in 1972. For starters, we had no idea how many mistakes we were making. The first DNA exoneration for a death sentenced prisoner didn’t occur until 1993. (That man, Kirk Bloodsworth, is now the Executive Director of Witness To Innocence, a non-profit based in Philadelphia). Since then, nearly 200 more death row exonerations have occurred, the most recent occurring in Delaware County of an innocent Black teenager given a death sentence by an all-white jury and executed in 1931. Other exonerations are not nearly as old, however. Kareem Johnson of Philadelphia went to death row in 2007 based on physical evidence of blood on a hat left at the scene of the crime; it wasn’t until 2015 that attorneys from the Federal Defender Association discovered that the blood was on a different hat entirely.
The Pennsylvania Supreme Court concluded that such a mistake was “unimaginable,” which leads us to other information that was not “presently available” in the decade after Furman. In short, who made such an unimaginable mistake? Obviously, the trial attorneys did not go to the trouble of actually looking at the evidence against their client, nor did they review the DNA report, which clearly indicated that there was a second hat. Such blunders were virtually unheard of in the 1970s – stories of lawyers sleeping through trial, as in the Calvin Burdine case in Texas, or drinking a quart of vodka a night, as in the Georgia case of Robert Holsey, didn’t emerge until the 1990s and later. But our Supreme Court was not even referring to the defense attorneys when it pointed out unimaginable mistakes; instead, it questioned how the prosecution could so casually attempt to execute someone without even scrutinizing its own evidence. Fifty years ago, the public was not aware that prosecutors might intentionally hide evidence, as in the Pennsylvania case of Jay Smith, or sloppily overlook proof of innocence that was sitting in their own files, as in the Kareem Johnson case. And it is mistakes such as these, and our justifiable fear of a wrongful execution, that has driven the cost of capital punishment far higher than even the lengthiest incarceration.
On this 50th anniversary of the Furman decision, we should recognize and appreciate all we have since learned about criminal justice. The decline of the death penalty is no accident; rather, it is the result of the knowledge we have gained from past mistakes.