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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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The Death Penalty in America Today

'Screaming and kicking every step of the way...'
Last week's news told us everything we need to know about the death penalty in America today.

On Thursday, May 12, in Alabama, the scheduled execution of Vernon Madison was halted at the last minute because of a split 4-4 vote by the Supreme Court. This tie meant that the temporary stay of execution approved by the 11th Circuit Court of Appeals remained in-tact. Madison is 65 years old and suffers from the effects of several strokes, diabetes, hypertension, and, possibly, dementia. He slurs his words, walks with a cane, is legally blind and exhibits "significant cognitive decline," according to his lawyers. He can no longer remember the offense for which he was condemned to die.

Moreover, Madison's 3 trials for the 1985 murder of a police officer were marked by prosecutorial misconduct, racial bias, and the questionable practice of judicial over-ride. Twice, courts ordered a new trial for him - the 1st time because African Americans were illegally struck from the jury, and the second time because of improper expert testimony. While the 3rd trial resulted in a guilty verdict, the jury voted to sentence him to life in prison. The elected judge, however, over-rode the jury's decision and imposed a death sentence. Alabama is 1 of only 2 states that allows for judicial over-ride in death sentences, a practice that has been severely criticized and makes the state, in the words of Supreme Court Justice Sotomeyer, a "clear outlier."

Despite all of these factors, the state of Alabama was fully prepared to proceed with the execution. The fact that Madison is alive today is largely a fluke. The Supreme Court split its vote because Justice Antonin Scalia died in his sleep several months ago, and the Senate is steadfastly refusing to review and vote upon the President's nominee to replace him.

In other words, this entire process has been characterized by dysfunction all around.

The next day, on Friday, the pharmaceutical giant, Pfizer, announced it would no longer make its products available for lethal injection, writing that to do so would not be "consistent with its values." Pfizer's decision means that those states that remain determined to proceed with executions must either convene a firing squad, bring back the electric chair, or apply a combination of untested, unregulated drugs that may or may not work, may or may not torture the individual, and that were obtained in a process shrouded in secrecy.

All are grisly options.

This is what capital punishment in this country looks like. Death sentences are imposed in a shrinking number of counties with histories of extreme racial bias, in wholly arbitrary fashions after trials often marked by prosecutorial over-reach and misconduct, against defendants who are almost always poor, and suffer from histories of trauma, abuse and mental illness. The executions now are fraught with secrecy, fear and uncertainty, the threat of agonizing error always looming, and traumatize all who are associated with it.

The only way to fix this is to end this. Hillary Clinton is wrong when she suggests that the United States is capable of holding the death penalty exclusively "in reserve" for terrorists. If the definition of insanity is doing the same thing over and over again and expecting different results, then this position is insane. We have tried time and again to "fix" capital punishment. But its mere existence on the books triggers a blood-thirstiness in some prosecutors, who consider death sentences to be "feathers in their caps," and testaments to their trial skills. As long as the statute exists, it will be a magnet for racial bias, human error, and a lust for vengeance. It is the responsibility of a civilized society to tamp down, not inflame, violent impulses among its citizens.

When the history of the end of capital punishment is written from a distance of 50 years or so, these last, sputtering efforts to maintain it may appear to be almost darkly comic, if the results weren't so tragic. The death penalty in this country is dying, of that there is no doubt. The question that remains is whether we will be able to put it out of its misery relatively quickly, or whether it will go out screaming and kicking every step of the way.

Source: Huffington Post, Johanna Wald, May 20, 2016. Johanna Wald is Director of Strategic Planning for the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School.

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