The Cost of Death- Boston Review
Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended.
In 1972, by a vote of 5-4, the Supreme Court struck down all existing capital punishment statutes in the United States. While three Justices were prepared to hold the death penalty unconstitutional under all circumstances, two others focused on the fact that the existing statutes led to arbitrary decisions that followed no legal standards. As Justice Potter Stewart put it, capital punishment violated the cruel and unusual punishment clause of the Eighth Amendment because being sentenced to death was like “being struck by lightning.”
Many states responded by enacting new capital punishment statutes that purported to formalize decision making. In 1976 the Supreme Court upheld several of these efforts, pointing to key procedural safeguards, such as the creation of a separate penalty phase to determine whether the defendant deserves to die. In this penalty phase, defense counsel can present a broad range of mitigating evidence that may diminish the defendant’s culpability or incline the judge or jury to mercy.
But too often the formal safeguards that reassured the Court have proved illusory in practice. Underfunded, untrained, or outright incompetent lawyers often fail to provide their clients even minimally adequate representation. A 1990 study by the National Law Journal found that a quarter of the inmates then on Kentucky’s death row had been represented at their trials by lawyers who were later disbarred, suspended from practice, or convicted of crimes. A capital defendant in Georgia was assigned a lawyer who knew the name of only a single criminal law opinion decided by any court.