With roughly 12,000 murders in the United States and only 49 death sentences and 28 executions, we have to wonder: Why these 28 men and women? 

According to the U.S. Supreme Court in Kennedy v. Louisiana:

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also Part IV–B, infra. It is the last of these, retribution, that most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own but sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568 (quoting Atkins, supra, at 319). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U. S. 153 (1976) , the Court insists upon confining the instances in which the punishment can be imposed. 

Essentially, all murders are terrible. But the average murder is not eligible for capital punishment. The Supreme Court has said: 

Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. See Roper, supra, at 571–573; Atkins, supra, at 318, 320. The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. 

And, in Kennedy v. Louisiana, the Court held that the death penalty was unconstitutional for non-homicide crimes against individuals. So, the fact that an executed person committed aggravated murder is to be expected. The prosecutor and the jury learn the facts of the aggravated murder in trial. But, because of poor lawyering, functionally impaired defendants, lack of resources, etc., evidence of mitigation often is not fully developed. Thus, it’s important to know about mitigation found later during the post conviction phase, because it tells us whether the trial court system met the constitutional requirement set forth in Kennedy, that is: that the death penalty only be reserved for those “offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” Reporting about mitigation evidence, then, is not just balanced reporting. It is the most important and relevant info in most cases. Despite its great importance, it often appears to be overlooked.

For example, the Marshall Project sponsors a project called “The Next to Die,” a project designed to keep track of upcoming executions around the United States. Their mission states as follows:

The Next to Die aims to bring attention, and thus accountability, to these upcoming executions. As impartial news organizations, The Marshall Project and its journalistic partners do not take a stance on the morality of capital punishment, but we do see a need for better reporting on a punishment that so divides Americans. Whether you believe that execution is a fitting way for society to deplore the most heinous crimes, or that it is too expensive, racially biased and subject to lethal error, you should be prepared to look it in the face.

Although a fantastic goal, it appears that the project underreports or ignores evidence of mitigation. For example, compare this case summary prepared by the Next to Die Project with this Intercept piece. Although both are written about recently executed death row inmate Brandon Jones, only the piece by the Intercept reports on the mitigating circumstances in Brandon Jones’ life. 

Yes, part of the problem is most likely caused by the fact that mitigating information is so often buried in post-conviction rulings and briefs or clemency materials. It is time consuming work. But it is necessary work. The only way we can determine whether death sentences meet the “worst of the worst” standard set by the U.S. Supreme Court is to examine and report on all the information available to us about those sentenced to die, most especially on any information that suggests that they are not “the worst of the worst.” 

Recent comments by Hillary Clinton also help illustrate how the U.S. Criminal justice system has failed at identifying “the worst of the worst.” Hillary Clinton recently explained that she supports the death penalty for “crimes against the state,” but not for crimes against individuals. The U.S. Supreme Court made this distinction in Kennedy v. Louisiana, stating:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken. 

A petition before the Supreme Court right now (Tucker v. Louisiana) also makes the same distinction. Crimes against the government have long been singled out as worse than crimes against individuals because they threaten social fabric. But this distinction has very little to do with the federal death penalty. Of the 62 people on death row for federal crimes, only one person fits the category Hillary Clinton set forth: Timothy McVeigh is the only person executed since the Julius and Ethel Rosenberg executions in 1953 who meets the standard. Even Hillary’s own definition puts people on death row that she does not believe should be there. But Hillary Clinton is right about one thing: 
HILLARY CLINTON: This is such a profoundly difficult question. What I have said and what I continue to believe is that the states have proven themselves incapable of carrying out fair trials that give any defendant all the rights that defendants should have, all the support that defendants’ lawyers should have. And I’ve said I would breathe a sigh of relief if the Supreme Court or the states themselves began to eliminate the death penalty.
These infographics from the Charles Hamilton Houston Institute help illustrate how broken the death penalty really is. For example, only a handful of outlier counties still impose the death penalty. Moreover, the death penalty is often prosecutor personality driven at the state level. 
Moreover, as Hillary noted, problems with defense lawyers often contribute to death sentences. For example, this article examines the consequences of being paired with some of the worst defense attorneys in the nation, and this article helps illustrate what happens when defense attorneys are required to meet higher standards. 

Again, as reflected in infographics from the Charles Hamilton Houston Institute, racial unfairness and the badges of racism still haunt some of these outlier counties, too And, as a result of this dysfunction, as Hillary Clinton noted, the people we execute are sometimes innocent.

And therein lies the greatest problem: we have failed to live up to the Supreme Court’s standard set in Kennedy.  Not only are we not executing the worst of the worst, we are often executing people who have committed no crime at all.