Next month will mark the 50th anniversary of the return of the death penalty. There was a period in this country when death row was cleared, and the death penalty disappeared.

As The Marshall Project described it, a narrow majority of the U.S. Supreme Court had scrapped the country's entire death penalty system, calling it "morally unacceptable," "racially discriminatory" and "arbitrary."

In 1972, the U.S. Supreme Court decided Furman v. Georgia. The court ruled that the death penalty was unconstitutional in the manner it was applied, violating the Eighth Amendment ban against cruel and unusual punishment.

At the time, U.S. Supreme Court Justice Potter Stewart wrote, "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Furman seemed headed to the gallows until Stewart struck a deal with Justice Byron White, who'd been on the fence about the death penalty. Stewart agreed to abandon his moral statement against the death penalty and would instead say that the problem with capital punishment was excessive arbitrariness. The deal resulted in a surprising 5-4 decision overturning the death penalty.

The compromise outlawing the death penalty only lasted four years. Stewart and the four justices who joined in the decision thought that, with public sentiment being against executions, the death penalty would just be a remnant of the past and slip away, never to be heard of again.

Stewart and his brethren were wrong. The decision prompted "law and order" state legislators to rewrite their unconstitutional death penalty statutes with an eye toward cleansing the law of its arbitrary, capricious and racially discriminatory nature.

On July 2, 1976, the U.S. Supreme Court decided Gregg v. Georgia. The high Court found that three of five states that amended their death penalty statute — Georgia, Florida and Texas — did conform to the directives of Furman. The death penalty was back.

Since 1976, 1,669 people have been executed in this country. Executions decreased each year from 2010 until post-pandemic. Last year, executions soared to 47, with the state of Florida leading the way with 19 executions. Federal executions surged in 2020 and 2021. President Donald Trump oversaw 13 executions in seven months. There had been three federal executions prior to Trump's re-election flurry of death — and none since.

As America reaches this dubious death penalty anniversary, it is worth asking why we have a death penalty in this country. Ohio's Republican Gov. Mike DeWine recently called for an end to capital punishment in his state, suggesting that the death penalty is not an effective deterrent.

Pennsylvania's Democratic Gov. Josh Shapiro came out against the death penalty early in his administration. Shapiro took a principled position that the death penalty was simply immoral.

Recently, Mike Fox wrote an interesting essay for the Cato Institute. Fox suggested, "When the state is granted the ultimate power to end a human life, the system executing that power must be flawless and completely transparent."

Fox lamented, "American legal system operates under rules where police and prosecutorial misconduct can — and does — flourish with virtually no consequences for the bad actors."

Fox goes on to suggest the legislative creations like qualified immunity for police and absolute immunity for prosecutors have "erected an impenetrable shield around its own operators."

Fox's concerns are legitimate, but when it comes to the death penalty, Fox and most who ruminate over the death penalty's inadequacies overlook the obvious.

The criminal justice system is fallible. Prosecutors are not required to prove convictions beyond all doubt or to a mathematical certainty. The government is required to prove an accused guilty beyond a reasonable doubt.

The criminal justice system does not guarantee foolproof convictions. The system accepts that sometimes there will be wrongful convictions. It is a tragedy for any person to be mistakenly sentenced to prison. Those errors, painful as they are, can be corrected.

Death is final. A fallible legal system should not be tinkering with the machinery of death.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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