THE BLOG
04/28/2015 06:35 pm ET Updated Jun 28, 2015

Execution and the Supreme Court: Right Issue, Wrong Questions

Co-authored by Tim O’Brien

At the U.S. Supreme Court on Wednesday morning, it will once again be a matter of life or death. Specifically, the Justices will be considering a morbid potpourri of death penalty issues arising out of the controversy over the drugs that states use to put people to death. Is there a risk of cruel and unusual pain and suffering? Should the burden be on the condemned inmate to come up with a better alternative than the drugs presently administered?

Unfortunately, these are the wrong questions -- a striking case of ignoring the forest for the trees. Experience of the last four decades -- ever since the Supreme Court revived capital punishment in 1976 -- brings to the fore the underlying and more fundamental questions for state legislatures as well as the high Court. Are states today even capable of putting prison inmates to death in a manner that is both rational and fair? That is consistent with the U.S. Constitution's guarantee of due process? That honors the command of the frieze that adorns the Supreme Court itself: "Equal Justice Under Law"? The research shows that they have not, and cannot.

It's not that proponents of capital punishment -- including some who sit on the Court itself -- haven't given it a good try. In 1972, the Court halted executions after concluding that judges and juries had so much discretion, there was no way of determining who would get a death sentence and who wouldn't. In the words of Justice Potter Stewart, implementation was "wanton and freakish," and about as foreseeable as "getting struck by lightning."

So the Court took away much of that discretion, requiring among other things that states specify in their death penalty statutes "aggravating circumstances" about the crime or criminal so that capital punishment might be reserved for those most deserving. But then the Court found that jurors didn't have enough discretion. Children were being sentenced to die, as were accomplices who only played a minor role in the underlying offense.

The Court recognized the nightmare it had created two years later in the case of Sandra Lockett, sentenced to die in Ohio for driving the getaway car in an armed robbery that went awry, resulting in the shooting death of a pawn shop owner. The three men who had actually committed the robbery were spared, including the triggerman who testified against Lockett. In rejecting Lockett's death sentence, the Court gave back the discretion it had just taken away, ruling that judges and juries must be allowed to consider any relevant evidence that might work in the defendant's favor.

It still didn't work. Wherever one might stand on the morality of capital punishment, the evidence today is overwhelming that the death penalty is still not being applied fairly or even rationally -- nor is it accomplishing its intended goals of deterrence and retribution in any meaningful way. The key factors that were supposed to determine whether a defendant gets a death sentence, namely the character of the offender and the nature of the offense, have little to do with the outcome. And factors that should have no bearing on the death penalty at all often turn out to be dispositive -- factors like race. Not only are Hispanic and African Americans more likely to get a death sentence than whites, but those who kill whites are many times more likely to get a death sentence than those who might kill a person of color.

Poverty also figures prominently in who might be condemned to death. It's not just that the 'have-nots' are more apt to commit violent crime than the 'haves.' Money talks. It is exceedingly rare for anyone who can afford a good lawyer to get a death sentence.

That's as true now as it was fifty years ago when Warden Clinton Duffy observed, "The rich are never executed; only the poor wind up on death row." Duffy knew from personal experience what he was talking about, having put to death 90 prisoners in San Quentin's gas chamber.

Stephen Bright -- who runs the Southern Center for Human Rights in Atlanta and is a guest lecturer at the Yale Law School -- has chronicled scores of cases where defendants were sentenced to die not because they had committed the worst crimes but because they had the worst lawyers -- lawyers who fell asleep during the trial, showed up drunk or didn't show up at all.

Advances in DNA testing have also demonstrated that the risk of executing the innocent is far greater than we had previously imagined.

There is no reason to believe that the handful of condemned prisoners put to death in 2014 -- 35 of roughly 3,000 inmates -- were the most deserving, and every reason to believe they were not.

The late U.S. Solicitor General and federal appeals court judge, Robert Bork, arguing in the Supreme Court in defense of Georgia's death penalty law, conceded there was a major problem with capital punishment -- that not enough murderers were being executed. Bork insisted that that was no reason to abandon capital punishment, and the Supreme Court ultimately agreed in Gregg v. Georgia. We are persuaded otherwise.

What if we were to ask death row residents to simply pick a card: "Select the joker and you'll die." No country in the world would adopt a system so irrational. With some 14-thousand homicides a year in the United States resulting in around 200-death sentences, what we have today is every bit as arbitrary. Less than two percent of the homicides in the U.S. bring death sentences and only a small percentage of those sentenced will actually be executed. Pick a card.

To many, debating what kind of drugs to use in order to make death painless for a convicted murderer is hardly necessary. Justice Antonin Scalia -- the Court's most forceful defender of capital punishment -- sought to distinguish the horrible crimes that routinely come before the Court from the punishment the Court is asked to uphold. "How enviable a quiet death by lethal injection compared with that!" wrote Scalia.

Scalia is of course correct that many of the crimes that bring death sentences shock the conscience and cry out for retribution. It is understandable why so many Americans, particularly loved ones left behind after a brutal murder, thirst for the ultimate sanction. Whether we should put the perpetrators to death, however, is again the wrong question. For it is not about them. Rather, it is about us.

Martin Clancy and Tim O'Brien, veterans of ABC News, are the authors of the death penalty book, Murder at the Supreme Court: Lethal Crimes and Landmark Cases (Prometheus Books).