On 3 July 1976, just over 37 years ago, the US Supreme Court gave judgement in Gregg v Georgia 428 US 153 (1976). The ruling reinstated capital punishment in the United States. Four years earlier, in Furman v Georgia 408 US 238 (1972), capital punishment had been deemed a ‘cruel and unusual punishment’ in breach of the Eighth Amendment to the United States Constitution. A precedent set in Robinson v California 370 US 660 (1962) held that the Eighth Amendment applied to the states as well as to the federal government by virtue of the Fourteenth Amendment.
Such legal logic is, however, less important than the wider debate on capital punishment in the United States. On 26 June 2013, the state of Texas notched up a macabre statistic: it executed its 500th person since the reinstatement of the death penalty. Kimberly McCarthy was put to death by lethal injection for the murder of her 71-year-old neighbour in 1997. The Republican governor of Texas, Rick Perry, holds another grim record: he has presided over more executions than any other state governor – well over 200 – and is an aggressive believer in what he terms ‘ultimate justice’.
The day before her execution, McCarthy’s final appeal was rejected by the Texas Court of Criminal Appeals. Her attorney, Maurie Levin, had argued on her behalf that there was a racial bias in jury selection, and that some eligible African-American jurors had been blocked from jury membership, producing an all-white jury for McCarthy, a black woman. Whatever the legal arguments around this, it raises a wider issue. It is nearly 60 years since the landmark Supreme Court case of Brown v Board of Education 37 US 483 (1954) which set in train the desegregation of the American south, and over half a century since the publication of Harper Lee’s famous novel To Kill a Mockingbird. Yet, in 2013, the race issue is a live one in the American courts.
In contrast, the British debate on the death penalty was mercifully free of such arguments. Both the second Labour government of 1929-31 and the Attlee government of 1945-51 debated abolition. The Attlee government stopped short of abolition principally because of concerns that society was not quite ready for such a change, particularly after the terrible human experiences of the second world war. Later, by the Murder (Abolition of Death Penalty) Act 1965, hanging was temporarily suspended before being permanently outlawed in 1969, while Harold Wilson was prime minister.
The American debate is different. Even moving beyond the individual case of McCarthy, statistics show that more African-Americans are executed relative to their proportion of the population than are white Americans. The events of recent days also serve to reinforce the controversy on jury selection. Race features not only in the debate on execution, but also on the judicial system itself. On 13 July, George Zimmerman was acquitted of murder and manslaughter for the shooting of black teenager Trayvon Martin by an all-female six-member jury, five of whom were white, sparking protest in American cities.
Next year, 2014, will mark half a century since the Civil Rights Act of 1964 was passed under President Lyndon Johnson in the year after John F Kennedy’s assassination. The events of the last month have been a sharp reminder that race and the continuing debate on the ‘ultimate justice’ have still not been completely disentangled.
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Nick Thomas-Symonds is the author of Attlee: A Life in Politics published by IB Tauris (2010). He writes the Labour history column for Progress tweets @NThomasSymonds
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Quite apart from any death sentence itself being inherently a cruel and unusual punishment what greatly offends me is to read of people being in prison for 30 or more years only to face the death penalty at a late date. It surely must be a cruel and unusual punishment to hold a prisoner for that period before execution. In Britain before the abolition of the death penalty, justice was alarmingly and almost excessively swift. A murder in September could come to trial in November and the culprit be executed in January. For a death penalty to serve any purposes, the deterrent must relate to recent crime, not some offence that happened ‘in black and white’ times. To avoid any misunderstanding I wholly oppose capital punishment.