Fifty years ago, on July 2, 1976, the U.S. Supreme Court reinstated the death penalty in Gregg v. Georgia, four years after Furman v. Georgia had struck down existing state statutes as “arbitrary,” “racially discriminatory,” and “morally unacceptable.” The Gregg court—which included Justice John Paul Stevens, who joined the court following Justice William O. Douglas’s 1975 retirement—held that the death penalty’s defects could be cured by procedural safeguards: sentencing guidance for jurors, two-phase trials separating the determination of guilt from sentencing, and automatic appellate review. Stevens would later say his vote in Gregg was the one vote he regretted from his thirty-five-year tenure on the Court.
A major analysis published June 22 by The Marshall Project, in partnership with The Guardian and drawing on data compiled by University of North Carolina political scientist Frank Baumgartner and the Death Penalty Information Center, examines the 9,000 death sentences imposed under the Gregg framework over five decades. “Our system is an epic fail,” Baumgartner told the Project. “Every flaw [the Supreme Court] sought to rectify has been a failure, and now there are new problems that didn’t used to exist.”
More than a third of death sentences imposed since 1976 have been reversed on appeal because of constitutional errors. Disparities persist—whether a defendant receives a death sentence still depends more on the county of prosecution than on the nature of the crime. Fewer than one in five death sentences ultimately results in execution, and in 2023, for the first time since Gregg, executions in the U.S. surpassed new death sentences. At least 202 people sentenced to death since 1973 have been exonerated, meaning, in the Death Penalty Information Center’s definition, that they were acquitted on retrial, had charges dismissed, or received a complete pardon based on evidence of innocence. Governors have commuted more than 400 death sentences. The average wait on death row now exceeds 27 years.
Pharmaceutical companies have refused since the early 2010s to supply drugs for lethal injection, and several states have been unable to execute prisoners as a result. Public support for capital punishment, which peaked around 80% in the 1990s, has fallen to roughly 50%. Twenty-three states have abolished executions.
On June 16, Ohio Governor Mike DeWine, a Republican, called for abolition in his own state. DeWine co-authored Ohio’s reinstating law in 1981 as a state legislator. Citing the absence of any deterrent effect and the decades-long delays imposed on victims’ families, he concluded that “the moral justification I had ... no longer exists.” He has paused all executions in Ohio.
