Pause for thought - 40 years since the US Supreme Court briefly stopped executions

Today is the 40th anniversary of the US Supreme Court briefly stopping executions. USA Researcher Rob Freer looks back at that ruling and the use of death penalty by the US today.

For a brief moment four decades ago, it looked like the USA might join an emerging global trend against the death penalty.

On 29 June 1972, its Supreme Court issued a ruling, Furman v. Georgia, which overturned the country’s capital laws and nearly 600 death sentences that were pending at the time.

But the moment proved fleeting. Only two Justices had found capital punishment per se unconstitutional, leaving legislators room for manoeuvre. Individual US states showed little hesitation in setting about revising their capital statutes, and a mere four years later in Gregg v. Georgia, the Supreme Court gave them the go-ahead to resume executions.

By 1972, 13 countries had abolished capital punishment for all crimes. Forty years later, this number has grown to 97 countries, while 141 are abolitionist in law or practice.

Today, only 57 countries retain the death penalty, a small percentage of which account for the bulk of the world’s executions each year. The USA is among them, having put to death 1,300 men and women since its Supreme Court lifted the Furman moratorium in 1976.

More than 3,000 others are currently waiting on death row.

Justice Thurgood Marshall, who with Justice William Brennan decided in the Furman case that the death penalty was in and of itself unconstitutional, celebrated the global abolitionist trend and the prospect of the USA joining it.

Chief Justice Warren Burger, on the other hand, leading the four-Justice dissenting opinion in the case, rejected this world trend as a “way to a judicial solution in this country under a written Constitution”. The dissent sowed the seeds of the Gregg ruling four years later.

In 1992, the year the US annual execution toll went above 30 for the first time since the Furman moratorium was lifted – a number that would more than triple by 1999 – the USA ratified the International Covenant on Civil and Political Rights (ICCPR). This treaty places restrictions on the use of the death penalty and its language points to an expectation that governments will work towards abolition.

When the USA ratified the ICCPR, it made clear that it was doing so with reservations – when it came to placing constraints on capital punishment, nothing would be allowed to trump its Constitution. It maintains these reservations to this day, despite calls from the ICCPR’s expert monitoring body, the UN Human Rights Committee, to remove them.

During the past decade, the same reservations have contributed to flawed legal justifications for torture and other ill-treatment of detainees in US custody in the counter-terrorism context. The question arises, then, whether the USA’s pursuit of the death penalty in the last three decades of the 20th century may have contributed to these human rights violations in the first decade of the 21st.

If the Furman decision had called a permanent halt to the death penalty rather than leaving itself open to reversals, the USA would have been closer to respecting the human rights principles it claims to uphold.

Instead the USA’s pursuit of judicial killing has institutionalized a cruel ritual – the families of the condemned are forced to endure suffering, adding to the pain and grief of the murder victims’ families – for no constructive societal benefit. What is more, there is always a risk of irrevocable error and inequity.

This pursuit has helped to cement a US reluctance to apply international human rights law to its own conduct and a tendency to view domestic constitutional standards as the only measure of justice.

Forty years after the Furman ruling, and 20 years since it ratified the ICCPR, the USA would do well to reflect on Justice Marshall’s words. In his lengthy opinion in Furman he encouraged the USA to think of itself as a country that “cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system”. In striking down the country’s death penalty laws, he said:

“…this Court does not malign our system of government. On the contrary, it pays homage to it… In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve a major milestone in the long road up from barbarism and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.”

Today that total has doubled to more than 140 countries which have abolished the ultimate cruel and inhumane punishment. The USA should ask itself why it has fallen so far behind much of the rest of the world on this fundamental human rights issue. It should ensure that its constitutional system and democratic processes are used as a progressive force for human rights, not as an obstacle to them.