Thursday will mark the 50th anniversary of the rebirth of the death penalty in the United States. On 2 July 1976, the supreme court handed down decisions in five cases that laid out a formula for passing constitutional muster.

The formula the court devised and explained at length in one of those cases, Gregg v Georgia, was built on a wish and a prayer. It was a fantasy of fairness, powerful enough, its authors thought, to keep capital punishment alive and to lend it legitimacy, but it was a fantasy nonetheless.

What has happened since shows the hollowness of that hope. History has not and will not look kindly on the court’s misbegotten effort.

Four years before the 1976 quintet of court rulings, the court had halted capital punishment in a case called Furman v Georgia. It did so on the grounds that the sentencing discretion that state laws gave judges, and juries created an unacceptable risk that it would be used in an arbitrary and discriminatory manner.

Opponents of the death penalty celebrated, believing that it would not survive the setback the court delivered. One, Professor Hugo Adam Bedau, predicted: “We will not see another execution in this nation in this century.”

Another, Jack Greenberg, then a lawyer working for the Legal Defense Fund, the leading anti-death penalty group in the country, went further. After Furman, Greenberg observed: “There will no longer be any more capital punishment in the United States.”

But that celebration was both premature and unwarranted. Bedau, Greenberg and others should have known better.

As the historian David Oshinsky explained to an interviewer at the University of Texas, where he teaches: “The justices were so divided that each one wrote a different opinion.” In his view, “the two ‘pivotal’ opinions are those of Justices Potter and Bryon White. They concluded that the system of absolute jury discretion in sentencing had yielded death sentences with such infrequency and irrationality as........

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