Welcome to Let Kids Be Kids, Inc., advocacy blog "We All Deserve Better."
Our goal is to post relevant information that will spark action,discussion and interaction, creating a catalyst for solutions and ideas to impact the challenges we face in our society. We welcome comments, suggestions and submissions in support of those seeking a voice. "...Courage is not the absence of fear, but rather the judgement that something else is more important than fear..."
"Thursday will mark the 50th anniversary of the rebirth of the death penalty in the United States. On 2 July 1976, the supreme courthanded down decisionsin five cases that laid out a formula for passing constitutional muster.
The formula the court devised and explained at length in one of those cases, Gregg v Georgia, was built on a wish and a prayer. It was a fantasy of fairness, powerful enough, its authors thought, to keep capital punishment alive and to lend it legitimacy, but it was a fantasy nonetheless.
What has happened since shows the hollowness of that hope. History has not and will not look kindly on the court’s misbegotten effort.
Four years before the 1976 quintet of court rulings, the court had halted capital punishment in a case called Furman v Georgia. It did so on the grounds that the sentencing discretion that state laws gave judges, and juries created an unacceptable risk that it would be used in an arbitrary and discriminatory manner.
Opponents of the death penalty celebrated, believing that it would not survive the setback the court delivered. One, Professor Hugo Adam Bedau, predicted: “We will not see another execution in this nation in this century.”
Another, Jack Greenberg, then a lawyer working for the Legal Defense Fund, the leading anti-death penalty group in the country, went further. After Furman, Greenberg observed: “There will no longer be any more capital punishment in the United States.”
But that celebration was both premature and unwarranted. Bedau, Greenberg and others should have known better.
As the historian David Oshinsky explained to an interviewer at the University of Texas, where he teaches: “The justices were so divided that each one wrote a different opinion.” In his view, “the two ‘pivotal’ opinions are those of Justices Potter and Bryon White. They concluded that the system of absolute jury discretion in sentencing had yielded death sentences with such infrequency and irrationality as to be cruel and unusual and therefore in violation of the eighth amendment.”
While abolitionists celebrated, Oshinsky observes: “Capital punishment advocates saw an opening in the decision. Furman … did not outlaw capital punishment. It said if ‘you want it, you have to rewrite your laws.’”
And 37 states took the opportunity to do so, trying as best they could to divine the right remedy for the problems highlighted in Furman. Some, such as North Carolina, thought that remedy would be eliminating all discretion and making a death sentence mandatory for people convicted of certain very serious offenses.
Others, Oshinsky suggests, took a middle ground, “providing a bifurcated trial, separating the guilt phase from the penalty phase, and allowing juries to hear aggravating and mitigating circumstances to determine if a convicted murderer should die”.
So the stage was set for an epic legal battle. Half a century ago, the question was whether the court would go further than it had in Furman and end the death penalty once and for all, or find one of the recently enacted sentencing schemes acceptable.
When the court announced its rulings, abolitionists’ hopes were dashed. As justice Potter Stewart, now writing for a seven-judge majority, argued: “It is now evident that a large proportion of American society continues to regard … [the death penalty] as an appropriate and necessary criminal sanction.
“We now hold,” Stewart added, “that the punishment of death does not invariably violate the Constitution.” That single sentence has stood as an ironclad barrier to judicial abolition, from then until now, and the court has turned a cold shoulder to wholesale challenges to that penalty.
In fact, as the Atlantic’s Elizabeth Bruenig argued four years ago, the court’s interpretation of the eighth amendment’s prohibition on cruel and unusual punishment has led to the amendment’s “disintegration” and “destruction”.
Meanwhile, what the supreme court decided 50 years ago remains the basis for dispensing death sentences today. It struck down mandatory death penalty laws, calling them “unduly harsh and unworkably rigid”.
At the same time, it ruled that statutes which provided what it called “guided discretion” were enough to mitigate the problems identified in Furman. Georgia, in Stewart’s view, now “suitably directed and limited” jury discretion “so as to minimize the risk of wholly arbitrary and capricious action”.
“It is possible,” Stewart confidently asserted, “to construct capital sentencing systems capable of meeting Furman’s constitutional concerns.” He and his colleagues imagined that a “bifurcated proceeding where the trial and sentencing are conducted separately”, while “specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence’s circumstances with other similar cases” would ensure that “the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence.”
The court was satisfied that what they had approved would ensure the death penalty’s “judicious and careful use”.
Over the last five decades, we have learned a hard lesson: all that was pure fantasy.
We know that since 1973, “202 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row,” per the Death Penalty Information Center. In addition, a study conducted in 2014 “estimated that at least 4% of those sentenced to death are innocent”, the DPIC reported.
It is also clear that the court’s “guided discretion” has not ended arbitrary and discriminatory treatment. People of color still fare badly at every stage in America’s post-Gregg death penalty system and are even more likely to have their executions botched than are white people.
Stewart and his colleagues thought that if they could find the right formula, the people who serve on capital juries could put aside their biases and rise to the occasion when they had someone’s life in their hands. It is a noble aspiration, but one that sadly can’t be realized in any human system of justice.
Writing in 1994, Justice Harry Blackmun exposed the myth that has sustained the US’s death penalty since Gregg. As he explained: “Once the pool of death eligible defendants has been reduced, the sentencer retains the discretion to consider whatever relevant mitigating evidence the defendant chooses to offer … Over time, I have come to conclude that even this approach is unacceptable: it simply reduces, rather than eliminates, the number of people subject to arbitrary sentencing.”
Blackmun went on to say: “The decision whether a human being should live or die is so inherently subjective – rife with all of life’s understandings, experiences, prejudices, and passions – that it inevitably defies the rationality and consistency required by the constitution.”
For him and for me, it is clear that no set of “procedural rules or verbal formulas” can ever “provide consistency, fairness, and reliability in a capital sentencing scheme”. The last half century has only proven that, in Blackmun’s words, the effort is “doomed to failure … and the death penalty – must be abandoned altogether”.
Austin Sarat, associate dean of the faculty and William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty
Writing during the carnage of the first world war, the iconoclast intellectual Randolph Bourne described the American revolutionary inheritance as a squalid marriage between the town capitalist and plantation patriarch. Glittering generalities of freedom and democracy, Bourne observed, were indelibly marked by their long captivity to the money counters and owners of human chattel.
In the land lorded over by the likes of Donald Trump, leader of one of the most indecently corrupt, violently inept administrations in the country’s history, the 250th anniversary of the American Declaration of Independence would seem to affirm this judgment. Our moment, defined by the mobilization of market frenzy, machineries of war, deportation deliriums and nativist passions, echoes Bourne’s; it is a time of social fracture, moral failure and hegemonic collapse, with cynical reason ascendant.
In the days ahead, the US origin story will be told again with fanfare and at great expense, dressed in the garb of Christian nationalism and gaudy militarism, but drained of its narrative power as a world-making event – the idea that “the cause of America”, in the words of Thomas Paine’s 1776 revolutionary pamphlet Common Sense,“is the cause of all mankind”. It is easy in the current context to forget that not long ago, this redemptive idea still resonated. On the night of his election to the presidency, Barack Obamaframed his victory as an event that decisively narrowed the gap between the nation’s democratic ideals and its often flawed reality: “If there is anyone out there who still doubts that America is a place where all things are possible, who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy, tonight is your answer.”
Celebrating ordinary people as the authors of “our better history”, Obama used his rhetorical gifts to trace a narrative arc – linking women’s suffrage to the New Deal, the civil rights movement and marriage equality, part of a continuous, unfinished march toward a “more perfect union”. The outlines of this American universalist narrative first emerged during the second world war, advancing upon claims to anti-fascism and anti-racism that gained sway even over conservative elites. During the post-second world war era, with anti-discrimination principles increasingly consecrated in law and culture, US history was defined as a series of emancipatory milestones that vindicated the domestic ruling order and US claims to global leadership.
Recent years have seen growing numbers of mainstream detractors from this consensus history – among the most prominent, the New York Times’s 1619 Project, which offered an account of a “new founding” adjacent to the one championed by civil rights liberals, but wildly traducing the original. The revolutionary war, its lead author Nikole Hannah-Jones argued, was primarily motivated by the tawdry desire to give a free hand to Bourne’s plantation patriarchs “in order to ensure that slavery would continue”.
Conservatives howled at this re-telling of the founding, and Jones’s claims received pushback from US historians, who long debated whether the country’s birth was best understood in terms of the heritage of slavery or anti-slavery. But generally glossed over – by both the 1619 Project and the ensuing debate over it – was the fact that land hunger, and westward expansion, was a major impetus of revolutionary energies.
In fact, emancipation and expansion are twin pillars of the American revolutionary narrative. Both are closely bound to the histories of slavery and freedom, mobile frontiers and the United States’ continental and global reach, and both have been variously used to support the idea of a democracy upholding opportunity and affluence for the majority of US citizens and residents. In the great muddle of the present moment, however, the idea of a virtuous expansionist-emancipatory dialectic has fallen on hard times, undone by growing wealth inequality, civil rights reversals, violent policing and unpopular wars of choice.
“What to the Slave is the Fourth of July?” asked the formerly enslaved Frederick Douglass on 4 July 1852, in a moment of similar contention and uncertainty. At that time, the recently passed Fugitive Slave Act meant that free states could no longer offer Douglass sanctuary against capture, rendition and return to slavery: “What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us?” In 1857, just before the civil war, the US supreme court’s Dred Scott decision answered him, attempting to resolve any doubts about the constitutional meaning of slavery: Africans and their descendants could never be citizens, as they held no rights “which the white man was bound to respect”.
It took a bloody civil war to achieve a resoundingly affirmative answer to Douglass’s question, for slavery’s descendants. That it took another century for Black Americans to achieve substantive political and civil rights indicates ambivalence and backsliding that persist to this day.
Quibbles aside, what was most important about the 1619 Project was its demonstration that the established synthesis of nationalist and progressive history is broken. The meaning of the American founding and its relationship to the country’s present is now firmly up for grabs.
Fourth of July celebrations have consistently invited Americans to ask, and in some cases re-litigate, fundamental questions about the political character of the country. The historical record of such celebrations suggests a propensity for evasion, rather than scrutiny.
The US centennial in 1876, at the end of the bitter Reconstruction period following the civil war, barely mentioned slavery, focusing instead on the US’s emerging industrial might and expansion across the continent and into the Pacific world. The Chicago World’s Fair that began on 4 July 1893, a time of racial segregation, anti-Black terror and imperial adventurism, affirmed this narrative. In a famous lecture to the American Historical Association, held in conjunction with the fair, historian Frederick Jackson Turner described movements across a series of western “frontiers” as the motor of force of the US’s democratic expansion in which “the slavery question” was but “an incident”, secondary to the geographic largesse that underwrote the creation of a free society of individual property holders.
