This reporter examines 50 years of the death penalty in America and how 'broken' the system is

You might be surprised to learn that there was a time in American history when the death penalty was illegal — everywhere. In 1972, the U.S. Supreme Court ruled that all of the death penalty laws around the country violated the Constitution. They were, essentially, too arbitrary.

"Who gets the death penalty is really random. You know, a lot of people commit murder every year, really heinous crimes, but who is actually getting sentenced to death row and executed seemed to have no logic to it, right? One justice even said, "It's sort of like being struck by lightning," even among the class of people who commit murder," Maurice Chammah said.

Chammah, a staff writer for The Marshall Project. and his colleagues are out with a look back at the death penalty 50 years after the Supreme Court reinstated it — in 1976. And The Show spoke with him more about it.

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Full conversation

MAURICE CHAMMAH: What really surprised me was how often the death penalty doesn't work in so far as the person who gets sentenced to death, you know, in a trial, the jury decides this person should go to death row, just how rarely that person ever actually gets executed. We found that it was roughly one in five people.

And far, far more people either spend, you know, decades on death row waiting out appeals and all kinds of different dysfunction in the system that just like makes time go by. And then a number of people, there are problems, mistakes in their trials. Sometimes they are potentially innocent and they're exonerated by a governor. Other times, you know, there's some problem like the defense lawyer let's say fell asleep, or there was racism that infected the jury selection. And for whatever reason, the courts throw out the death sentence, and in many of these cases prosecutors eventually give up and the person is resentenced to a sentence less than death.

So a lot of people who were once on death row are actually now just serving out life sentences. And the idea that a system would only work one out of five times, especially given just how expensive it can be, was a real eye-opener, I think, to us in terms of how broken the system is.

LAUREN GILGER: You also say 23 states have abolished the death penalty. That's almost half. I mean, that's a lot.

MAURICE CHAMMAH: That's right. That's right. It's right. We talk about the death penalty as an American institution, you know. You'll often see opponents say it's something America does alongside China and Saudi Arabia and Iran. But that's really actually only true of half of America.

Michigan, Minnesota, a lot of states have just gave it up decades or even more than a century ago, and it's really increasingly concentrated in a handful of states, the ones that you might think of, I'd say, like, you know, Texas and Florida and Arizona. But then it continues to live on in states that might be a little more surprising, like Ohio, a lot of purple states, too.

LAUREN GILGER: What does public opinion look like on this today, Maurice?

MAURICE CHAMMAH: The death penalty sits at just around 50%, you know, just above, just below, depending on what state you're in. And you've really seen a major shift where a lot of the big cities that used to be really supportive of the death penalty have really dropped away in support. They're electing, you know, district attorneys who say, "This isn't really in the interest of my public anymore."

And one way that that plays out really on the ground level — you know, it's one thing for Gallup or Pew to take a poll and get 50%, but it turns out when you go into court and you try to get 12 citizens who are just willing to give someone the death penalty, it's increasingly difficult.

Years ago I sat in a courtroom in Florida watching jury selection for a death penalty case. It was fascinating. And I watched — it was really hard to find 12 people who said, "Yeah, I'm willing to give somebody the death penalty," you know, even if they thought somebody deserved a really serious punishment.

LAUREN GILGER: Yeah, so that's become less common. That's interesting. So we mentioned many states, almost half in the country, have abolished the death penalty, but not of course here in Arizona. There was an execution here just a few months ago in May that went by with apparently very little incident. But we have seen other executions have issues more recently. And in the last decade or so, we've seen some what even some have called botched executions in Arizona, including this incredibly dramatic story of the 2014 execution of Joseph Wood.

I mean, how emblematic is the difficulty in getting the drugs, carrying out these executions in some kind of humane way that we've seen happen in Arizona? How does that look in the rest of the country?

MAURICE CHAMMAH: I think Arizona's a real bellwether state when it comes to the death penalty. It's politically purple. You have both Democrats and Republicans who have, you know, been in the governor seat, who are really key decision makers on whether to prioritize executions. But it turns out that around the country, it is hard for states, harder for states than ever really, to get pharmaceutical drugs to carry out executions. A lot of the big pharma companies have said they don't want their products used this way.

And so that sends certain states, like Texas for example, going to smaller, more obscure kind of mom-and-pop pharmacies to compound the drugs. There's a lot of secrecy around it. Sometimes there's stories of importing from other countries more or less legally, right? And then you see Arizona, like many states, starting to talk about other methods. I mean, we've now seen South Carolina carry out a few firing squad executions in the last few years. Nitrogen gas has become a method in Alabama.

And in Arizona, I think it perfectly encapsulates the national story, that you have, you know, critics of executions suggesting, well, maybe the firing squad is an option because lethal injection is not guaranteed to work, there's a high rate of botched executions. I also recall some years ago in Arizona a discussion about bringing back cyanide gas and there were sort of Jewish and Holocaust survivor groups who were very opposed to that. So I think the political debate you see around executions in Arizona kind of reflects the national picture pretty clearly.

LAUREN GILGER: Yeah. So let me ask you lastly then, Maurice, about what the future of the death penalty might look like in this country going forward. As you say, it's still rare that it's carried out. Juries are sentencing people to death row less and less often. What does it look like?

MAURICE CHAMMAH: Well, I think you're going to see the death penalty increasingly concentrated in places where there's a lot of political will for it, maybe a very, very concentrated, conservative, pro-death penalty population, but also importantly, where there's money to carry it out.

So Arizona is actually a perfect illustration here. Maricopa County has been a real epicenter of death sentences over the last 50 years, but I remember years ago interviewing a prosecutor in Mohave County, which is very rural, and he said to me very bluntly, "We cannot afford the death penalty." You know, there's serious murders here sometimes, but it's going to cost more than a million dollars to my taxpayers and that is just too big a hit for this county.

So what you're going to see is the death penalty maybe only in increasingly red states, but also increasingly in just these particular counties where there's the tax base to support it. And I think that really raises the question about arbitrariness, going back to these debates that were happening in the '70s about the death penalty, you know. Is it too random? And increasingly today, it can feel like whether someone gets the death penalty has way more to do with where they happen to commit the crime, which side of a county line they were on, than the crime itself.

LAUREN GILGER: All right. Maurice Chammah, staff writer for the Marshall Project, joining us with this look back at 50 years of the death penalty in America. Maurice, thank you for coming on. Thanks for your reporting. Appreciate it.

MAURICE CHAMMAH: Yeah, thanks for having me.