The numbers tell the story: Capital punishment in the United States is on life support, hanging on in the 2 percent of counties that administer more than half of all executions, but losing its grip in wide swaths of the country. Whether the Supreme Court or attrition will deliver the final blow is unclear, but anti-death-penalty advocates believe it’s possible that the day is coming when it will be relegated to the ash heap of history.
Consider the hard facts: Thirty death sentences were handed down last year with 20 executions carried out — a 90 percent decline since the height in the 1990s when several hundred people were executed each year.
Only five states carried out executions in 2016: Georgia (9), Texas (7), Alabama (2), Missouri (1) and Florida (1). As of this writing, five inmates have been executed in three states (Texas, Missouri and Virginia) in 2017, and 21 executions are scheduled in four states, including eight in Arkansas over a 10-day period in April. Those eight, which were set in early March, represent a grim race to carry out the lethal injections before one of the approved drugs becomes unavailable or expires. Counting planned executions that have been stayed or are to be rescheduled, the current projected total for 2017 is 35 in five states.
In the last decade, 12 states have either abolished the death penalty or imposed a moratorium on its use. Public sentiment is shifting toward eliminating the death penalty altogether.
The national trend in declining execution rates “is enormously important, and it’s not just that the number of death sentences is falling,” said Jessica Brand, staff attorney at the Texas Defender Service and a member of the legal advisory council of the Harvard Fair Punishment Project. “I think there are a couple of reasons. One, we know we’ve probably executed innocent people, and people care about that. We also see people with serious mental illness, and disproportionately people of color [being sentenced to death], and those stories resonate with people.”
As if to prove Brand’s point about executing the innocent, January saw the 157th exoneration of a person on death row since 1973.
At the height of its popularity, in the mid-1990s, 80 percent of Americans supported the use of the death penalty, according to a Gallup poll, a figure that has been slowly dropping each year since. A 2014 Public Policy Research poll found that Americans (across gender, political, racial and geographic lines) disapproved of using the death penalty on the mentally ill by a margin of 2 to 1. A 2015 Pew Research Center poll found that 71 percent of Americans think there is some risk of putting an innocent person to death, while 52 percent say minorities are more likely to be put to death than whites. As a corollary, blacks make up 42 percent of those on death row, while the 2010 U.S. census showed blacks to make up 13.6 percent of the general population.
The Supreme Court outlawed the use of the death penalty for the intellectually disabled in 2002 and for minors in 2005; it has not ruled on the use of the death penalty for the mentally ill, even though the U.S. Department of Justice estimated in 2006 that 10 percent of inmates in state prisons had a severe mental illness; the rate in the general public is 4.1 percent. Mental Health America estimates that at least 20 percent of people on death row have a severe mental illness.
Even in Texas, which is often considered the epicenter of capital punishment, the tide is turning. Voters in Harris County, home to the city of Houston, elected a new district attorney last November who has indicated an openness to using capital punishment less. Recent polling in the county showed support for the death penalty at 27 percent. The state is also in the midst of a demographic change and will soon be majority non-white, which will have implications for juries in a place that has historically used the death penalty disproportionately against defendants of color.
Brandon Garrett, Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, recently co-authored a data-rich report to be published this spring in the Journal of Criminal Law and Criminology. Among its major findings: death sentences are strongly associated with dense, urban counties with large black populations (such as Houston’s Harris County or Los Angeles County), and homicide rates are unrelated to death sentences. That is, places with more murders do not necessarily return more death sentences.
“There is no connection between death sentencing and murders,” said Garrett, who is also a member of the legal advisory council at the Harvard Fair Punishment Project. But “there is a really persistent pattern of racial discrimination [in the application of the death penalty]. It’s really ugly. It looks biased. It looks arbitrary.”
It also usually entails having bad legal representation, Garrett said. In fact, in a forthcoming book, Garrett details how relying on court-appointed defenders, as opposed to having a state-wide office for capital defense, is a predictor of death sentencing in a state. “Poor quality indigent defense in death penalty cases is a common feature of the counties that long accounted for most death sentences,” he said.
“Overuse of the death penalty is a symptom of greater flaws in the criminal justice system,” said Robert Dunham, director of the Death Penalty Information Center in Washington, D.C. “You see that where you have aggressive use of the death penalty, you tend also to see higher rates of police violence against civilians, higher rates of overcharging of juveniles, higher rates of racial disparity in the exercise of peremptory challenges [of potential jurors]. When you have a DA [district attorney] who is aggressively pursuing the death penalty, you tend to see someone who is not exercising choices in a way that would produce a fair and equitable criminal justice system.”
Fair and equitable has of late been on the mind of Justice Stephen Breyer, the leading opponent of capital punishment on the Supreme Court. Breyer wrote in a dissent last December after the court turned down four petitions to overturn death sentences, “Individuals who are executed are not the ‘worst of the worst’ but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.”
The eight-member court has five justices with qualms about capital punishment, but any justice appointed by President Donald Trump to replace the late Antonin Scalia will likely be conservative and pro-capital punishment, as might any future appointments to replace Justices Ruth Bader Ginsberg, Anthony Kennedy, and Breyer, who are all past retirement age.
Neil Gorsuch, Trump’s nominee to fill Scalia’s spot on the court, has not shown a tendency to grant relief in the use of the death penalty. Yet, as a judge on the U.S. Court of Appeals for the 10th Circuit Court, he was part of a 2007 effort to improve legal representation for low-income defendants in death penalty cases. The same year, according to The Washington Post, he met with highly regarded lawyers in Oklahoma to teach them how to present death penalty cases before an appellate court and to try to persuade them to take on more such cases.
Voters in Shreveport, La., Birmingham, Ala., and Tampa and Jacksonville, Fla., all ousted incumbent district attorneys in the November elections and installed what Dunham called “reform candidates,” which death penalty opponents are interpreting as signs of a diminishing desire among voters for the ultimate punishment. Whether that’s the case is not clear, but it does touch upon a related issue, that of the enormous power the district attorney wields in these cases, every step of the way, including who gets charged, what they’re charged with, whether juveniles are charged as adults, and the racial composition of the jury. Jury composition matters because all-white juries are more likely to convict defendants of color, and district attorneys who aggressively pursue the death penalty are more likely to strike jurors of color from the jury pool.
In many of the counties that carry out the most executions, “the prosecutorial overreaching is accompanied by a judicial failure to rein in the prosecutor,” said Dunham, “and the justice system in many of these locations enables it by enfeebling the criminal defense function, appointing defense lawyers who have a history of not zealously representing capital defendants, or a history of denying defense counsel adequate resources to investigate cases fully and to retain and present necessary experts.”
Analysis of sentencing trends by the Death Penalty Information Center shows that when there are major declines in the number of death sentences in those 2 percent of counties, it tends not to be because the murder rate has also dropped, but because there is a new prosecutorial administration that is pursuing the death penalty with less zeal. In fact, the five southern California counties that rank in the top 16 counties in terms of the death penalty have neither the highest nor the lowest murder rates.
“The murder rate doesn’t justify pursuing the death penalty as frequently as they do, and the frequent use of it doesn’t drive the murder rate down. It demonstrates the arbitrariness and the fact that the death penalty does not deter,” Dunham said. “And it again demonstrates that the driving force behind the American death penalty is the local prosecutor. It’s not what you did, it’s who was the DA where you were accused of doing it.”
Garrett’s research reaches the same conclusions, showing “just how counterproductive over-punishment is,” he said, adding, “I think it’s an exciting time. On the local level, people understand over-incarceration has to end.”
The movement away from the death penalty is not partisan, said Dunham. “There is an emerging conservative movement away from it,” he said, as well as among evangelicals and millennials.
“More and more fiscal conservatives and more and more people who denominate themselves as pro-life have been coming out against the death penalty,” Dunham said. “If you value human life, and you think government should not be in the business of taking life, the facts are making it increasingly clear that you cannot carry out capital punishment without a substantial risk that somebody who is innocent is going to be caught up in it.”
Thirty-one states still have capital punishment, including three that voted in favor of the death penalty in November: An abolition effort in California was defeated, Nebraska voters restored capital punishment to the books following a 2015 legislative repeal, and the death penalty was added to Oklahoma’s constitution as a legal form of punishment. The Catholic church threw its weight behind abolition in all three cases, and many were disappointed.
Brand, with the Fair Punishment Project, didn’t necessarily see those votes as a setback, though. “In California, voters were almost evenly split. That’s enormous progress. If that vote had taken place 10 years ago, I don’t think you’d have seen a split,” she said, adding that the death penalty “is on the way out and will soon be a relic of the past. That’s where the numbers have been going.”
“What’s happening in the states has a feel of inevitability to it,” said Dunham, noting an ongoing bipartisan effort in Washington state to eliminate the death penalty and the retention of four justices in Kansas who were targeted for ouster in the November elections by pro-death penalty groups.
Those working in the faith community to abolish the death penalty have taken several tacks. In Texas, for example, Catholic bishops are working to change laws about juries, while other groups try to put a human face on the death penalty through education.
Jennifer Carr Allmon, executive director of the Texas Catholic Conference of Bishops, said that her group is supporting a bill to eliminate a bizarre jury instruction law that prevents judges from informing jurors that it takes only one holdout to return a sentence of life over death. This statute compels judges to instruct that it requires two holdouts to return a sentence of life, even though a conflicting statute requires only one. In essence, the law Allmon’s group has targeted for repeal necessitates that judges misinform juries.
“Jurors are broken over this,” when they find out afterward that they might have returned a sentence of life in prison, said Allmon, who noted that judges are also confounded by it, but find their hands tied by the conflicting statutes. “It’s a juror’s rights bill. If a juror is sentencing a person to death, they have the right to know what their individual capacity is to save a life.”
The bill will be introduced in the legislature in March, and Allmon is hopeful that it will pass by June.
“I don’t understand how any legislature can hear the story and vote against it,” she said. “A vote against this bill is a vote against the truth, separate from your position on the death penalty.”
The Catholic Mobilizing Network to End the Death Penalty, based in Washington, D.C., works in conjunction with the U.S. Conference of Catholic Bishops to educate about not just the death penalty, but the criminal justice system and sentencing in general, including restorative justice.
Karen Clifton, the network’s executive director, has found that opinions about capital punishment change when people hear the human stories of those who are incarcerated, even visiting those in prison — of whom there are now more than 2.2 million, including state and federal prisoners and those in jails.
“Our whole mission is to educate Catholics on the church’s teaching, to connect this as a pro-life issue and the dignity of the human person. The church teaching says that any harm that occurs, the punishment needs to be retributive, but it also needs to be restorative. That’s what we’re teaching,” said Clifton.
“Facts and numbers are good, but we need to do the moral compelling of people. This is part of our faith. We can be restoring and forgiving, no matter how egregious the act that was done,” she said. “We’re not soft on crime — it’s harder: making people acknowledge what they’ve done, asking forgiveness, and then making restitution. Restoring the community as best they can for the harm that they’ve done.”
[Julie Bourbon is a freelance writer and editor in Washington, D.C.]