In 1972, the Supreme Court declared the death penalty unconstitutionally unfair, but left the door open for states to come up with new laws to remedy the arbitrary sentencing criteria it found troubling. Conservatives seized that opportunity to advance a broader agenda of reclaiming a government that, in their minds, had been captured by liberal elites — welfare-oriented bureaucracies and Earl Warren’s Supreme Court — that were intent on using big government to upend traditional values. The timing was right. Violent crime had been rising since the mid-1960s. More and more Americans wanted a government that would vanquish evil rather than manage it. The revival of capital punishment expressed a powerful moral clarity that “time off for good behavior” did not.
When it came to delivering punishment in a timely and dramatic fashion, moreover, the death penalty delivered the goods: As late as 1959, most of those executed spent less than two years on death row. Thus, as states created new death penalty laws, which the Supreme Court approved in 1976, few foresaw the degree to which federal oversight of capital cases would continue.
This, more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty. New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date. The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent. The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”
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