The Leadership Conference on Civil and Human Rights

In 1972, the United States Supreme Court temporarily invalidated existing capital punishment laws. That decision, Furman v. Georgia, held that current application of the death penalty violated the 8th Amendment's prohibition of "cruel and unusual punishment." The Court also found that capital punishment violated the principle of equal protection, since executions were carried out mainly against the poor, African-Americans, and the uneducated. However, after state legislatures passed a new generation of statutes promising equal justice and less cruel methods of execution (such as lethal injection), the Court reinstated capital punishment just four years later in Gregg v. Georgia in 1976.

The landmark 1987 Supreme Court case, McClesky v. Kemp, involved a renewed challenge to the death penalty on the grounds that it was applied in a racially discriminatory manner. Warren McClesky, a black man convicted of killing a white police officer in Georgia, based his appeal on a study by University of Iowa law professor David Baldus that showed killers of white people were four times as likely to get the death penalty as killers of nonwhites. Though the Court accepted the validity of the data, a 5-4 majority ruled that the statistical disparity didn't prove that McClesky had been purposefully sentenced to death because of skin color. Georgia executed Warren McClesky in 1991. That same year, Justice Lewis Powell confessed that his vote to uphold the death penalty in McClesky was among his greatest regrets. Legislative efforts to address racial disparities in the application of the death penalty have also failed to date. In 1994, the House passed a weak version of the Racial Justice Act, but the measure never reached the Senate. The act, which would allow prisoners to challenge their death sentences using statistical evidence available in civil racial discrimination cases, was introduced in four subsequent sessions but still has not been passed.

In a setback for death penalty opponents, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act in April 1996. This legislation increased the number of crimes punishable by the federal death penalty from two to more than fifty and established procedures for resuming federal executions after a 37-year de facto moratorium. The law also drastically limits federal court review of death row appeals and guts public funding of legal aid services for death row prisoners which, for most defendants in capital cases, is their only legal representation. Senator Russell D. Feingold (D-WI) introduced the Federal Death Penalty Abolition Act of 1999 (S. 1917) in November 1999. This bill, co-sponsored by Senator Carl Levin (D-MI), would abolish the death penalty at the federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of federal law. It was referred to the Senate Judiciary Committee, but received no further action. In February 2000, Sen. Patrick Leahy (D-VT) introduced the Innocence Protection Act. Representatives William Delahunt (D-MA) and Ray Lahood (R-IL) introduced an identical companion bill (H.R. 4167) in the House of Representatives. The bills were referred to the respective House and Senate Judiciary Committees, but received no further action. These bills would, among other things, allow those condemned to death to request DNA evidence, as well as provide greater funding for indigent defense.

In April 2000, Sen. Russ Feingold (D-WI) introduced the National Death Penalty Moratorium Act of 2000 (S. 2463). The bill would institute a moratorium on the imposition of the death penalty at the Federal and State level until a National Commission on the Death Penalty studies its use and policies ensuring justice, fairness, and due process are implemented. Similarly, Representative Jesse Jackson, Jr. (D-IL) introduced the Accuracy in Judicial Administration Act of 2000 (H.R. 4162) in April 2000, which calls for a seven-year moratorium of the death penalty at both the state and federal levels. These bills, too, were referred to the respective House and Senate Judiciary Committees.

Though moratoriums on the death penalty have been proposed in numerous states, so far only one has been implemented. In January 2000, Illinois Governor George Ryan (R) declared a moratorium on executions in the state, pending a special investigation into the state's system of capital punishment. Governor Ryan announced the moratorium until the state can determine why more of Illinois' death row inmates have been found innocent and released from prison than executed over the last 25 years.

Also in 2000, Attorney General Janet Reno ordered a review of the application of the death penalty in federal prosecutions. The Department of Justice review, released in September 2000, found that more than 75% of the cases in which federal prosecutors had sought the death penalty in the last five years involved minority defendants.