In 1972, the U.S. Supreme Court effectively shut down the execution mill in the U.S., declaring all state death penalty statutes unconstitutional because they fostered "cruel and unusual" punishment. But not cruel and unusual because being hung by the neck or fried in an electric chair was ghastly and certainly painful. Cruel and unusual because the death penalty was not being fairly and equitably applied, with African Americans and impoverished individuals far more likely to receive a death sentence, while others received a lesser punishment for similar crimes.
States scuffled to rewrite their death penalty laws to meet with Supreme Court approval, adopting statutes that listed aggravating factors, one or more of which needed to apply in order for the prosecution to request a death sentence (e.g., torture, rape, murder of a child or elderly person), and provided for mitigation at the time of sentencing, allowing for an examination of debilitating and positive aspects of the offender's past life (e.g., being a victim of abuse, mental or intellectual impairment, prior good deeds or community service).
Problem solved, right? Scarcely. By way of example, take a side-by-side look at the cases of Ted Kaczynski and Manny Babbitt.
First consider the similarities. Both men were turned in by their brothers. David Kaczynski came to suspect his brother Ted when he read the "Unabomber Manifesto" published in The Washington Post. Bill Babbitt's suspicion fell to his mentally ill brother Manny after reading a newspaper account of the murder and noting circumstances mentioned in the article that pointed to Manny, a Viet Nam War veteran suffering from PTSD. Both Ted Kaczynski and Manny Babbitt were diagnosed with paranoid schizophrenia. Both Ted Kaczynski and Manny Babbitt had all White juries. In both cases, the victims were White.
Here the similarities end. Ted Kaczynski received an undergraduate degree from Harvard and a PhD from the University of Michigan. Manny Babbitt dropped out of school, enlisted in the Marines, and passed the entrance exam only because the examiners provided him with the answers. In Viet Nam he was wounded, mistaken for dead, and loaded onto a pile of corpses and body parts. He recovered from his wounds and reenlisted for a second tour of duty. Upon returning to the states, his bizarre behavior twice landed him in psychiatric facilities where he received a diagnosis of paranoid schizophrenia long before he ever committed the crime.
Ted Kaczynski's homemade bombs killed three people, in premeditated attacks. Manny Babbitt killed an elderly woman when he suffered a psychotic flashback. He was walking by the woman's home, heard the film "Tokyo Joe" playing, crashed through the screen door, struck her seven times with his fists, and she died of a heart attack. He tagged her ankle with a strap and covered her body with a mattress after the military manner of identifying and protecting fallen comrades.
The U.S. government spent $5 million prosecuting Ted Kaczynski and $3 million defending him, providing him with the best criminal defense attorneys in the nation. Manny Babbitt was represented by a public defender who had never before tried a death penalty case and was later sued for racism and embezzlement.
Ted Kaczynski received a sentence of life without parole. Following the sentencing, the prosecution praised Ted Kaczynski's brother David, referring to him as a "hero—he saved lives." When Bill Babbitt turned in his brother, the police had promised to help Manny. Bill Babbitt's thank you was a ringside seat at Manny's execution, carried out on his 50th birthday.
One final difference: Ted Kaczynski was Caucasian; Manny Babbitt was an African American.
The U.S. resumed executions in 1977, with the revised state death penalty laws approved by the Supreme Court.
Yet, 30 years later all signs indicate that application of the death penalty in the U.S. remains fraught with racial and economic bias. More than 20 percent of Black defendants executed since 1977 had all White juries; 95 percent of the individuals on death row in the U.S. could not afford a private attorney; and no one represented by a private attorney at the original trial has been executed. Since the mid 1970s, 130 innocent individuals have been sentenced to death, with poverty and racial bias playing a role in many of these wrongful convictions. Are there more innocent people on death row? Probably.
The death penalty laws currently in effect have failed the guilty, failed the innocent, and failed the citizens of this country who want to live in a just and fair society. I suspect that would include most of us. To apply the term "just" to the capital punishment process in the U.S. makes a mockery of what our nation represents, a promise of "liberty and justice for all."
Leslie Lytle has an M.A. from Antioch University and serves on the board of the Tennessee Coalition to Abolish State Killing, as a staff writer for the community newspaper Sewanee Mountain Messenger, and is executive director of the Cumberland Center for Justice and Peace.