In the 1972 Supreme Court case Furman v. Georgia, two of the most comprehensive arguments in opposition to the death penalty were made by Justices William Brennan and Thurgood Marshall. Brennan’s argument centered on three elements. First, simple because the death penalty was used from the birth of the nation to the present, did not mean that the nation could never abolish it (Tabak, 1991). A modern proof of Brennan’s argument here is that while the death penalty was historically a common punishment in societies across the world, today 140 countries have abolished the death penalty in law or practice (DPIC, 2016). Second, Brennan argued that a review of who was being sentenced to death and the manner in which lead to their sentencing to death strongly suggests that the death penalty was being imposed in an “arbitrary and capricious” manner. While the arbitrary and capricious imposition of any criminal punishment is intolerable; it is unacceptable when done in a death penalty case, argued Brennan, because once executed there is no way to remedy a mistake. As Brennan pointed out in his concurrence, the history of the American criminal justice system is full of examples of mistakes and blunders which regardless of whether they were intentional or unintentional, still resulted in the arbitrary and capricious sentencing of innocent people to death. To be sure, according to the Death Penalty Information Center, the majority of people mistakenly sentenced to death row are done so as result of the “confusion and faulty memory” of eyewitnesses (DPIC, 2016) Third, Brennan argued that courts were imposing death sentences on convicts without first providing their constitutional guaranteed due process right. The result being that people were being executed even though their rights were being violated by the state to such an extent “as to have likely affected the outcome of their trials” (Tabak, 1991). For instance, a 2012 study of criminal cases in Texas revealed that over a four-year period, prosecutorial misconduct lead to questionable convictions in 91 cases; most of which involved murder charges and also included the conviction and sentencing on inmates to death row (Gudorf, 2013).
Justice Marshall’s arguments in opposition to the death penalty, while no less intense, were largely based on his experienced prior to his selection to the Court as a criminal defense attorney which a number of cases in which he represented death row inmates. Accordingly, Marshall’s opposition was based on two central elements (Uelmen, 1994). First, he argued that the way that the death penalty was at worst racist; and at best classist. The facts proven Justice Marshall’s point. Indeed, of 153 death penalty exonerations since 1973; 93 exonerees or over half the total were either African American or Latino. Moreover, nearly all were indigent when they were arrested, tried and convicted. Second, Marshall agreed with Brennan’s argument that the death penalty was arbitrarily imposed. Marshall’s arbitrary argument, however, focused on how defendants were represented in their trials. According to Marshall, one of the key factors in addition the systemic racism and classism of the death penalty was the ineffective assistance of counsel. To be sure, Marshall argued that more than many innocent people on trial were convicted and sentenced to the death penalty as a result of their defense counsel’s laziness, ignorance, unwillingness to do their job, or as a result of their unprofessional and unethical behavior (Uelmen, 1994). For instance, in 1984 Eddie Lloyd was arrested and charged with murder. In preparing for trial, Lloyd’s initial defense attorney paid U.S. $50 to a convicted felon to investigate the facts of the case and Lloyd’s mental health. Eight days prior to trial that attorney withdrew. Another attorney was assigned to the case but the trial was not postponed. Lloyd’s new attorney went to trial without consulting with his initial attorney, and did not perform his own investigation of the facts. At trial the new attorney neither cross-examined the police officers involved in Lloyd’s arrest, nor called any defense witnesses. Naturally, Lloyd was convicted in 1985. Nearly 20 years later after a DNA test confirmed that Lloyd was not the perpetrator, he was exonerated for ineffective assistance of counsel and false confession (IP, n.d.).
Accordingly, while the debate of whether or not the death penalty should continue or be abolished remains a topic of popular debate, the arguments of two Supreme Court Justices intimately involved in the Court’s death penalty jurisprudence provide relevant and timely arguments for why it is a failure a form of criminal punishment.
Death Penalty Information Center (DPIC). “Issues.” Accessed February 12 2016, www.deathpenaltyinfo.org/node/5623/3
Christie E. Gudorf, “Christianity and Opposition to the Death Penalty: Late Modern Shifts,” Dialog: A Journal of Theology 52, no. 2 (2013): 99-109.
Innocence Project (IP). “Inadequate Defense.” February 12, 2016, www.innocenceproject.org/causes-wrongful-conviction/inadequate-defense
Gerald F. Ulemen, “Justice Thurgood Marshall and the Death Penalty: A Former Criminal Defense Lawyer on the Supreme Court,” Arizona State Law Journal 26 (1994): 430-41.
Ronald J. Tabak, “Justice Brennan and the Death Penalty,” Pace Law Review 11, no. 3 (1991): 473-490.