JURIST Guest Columnist John H. Blume of Cornell Law School discusses the current state of the death penalty in the United States…
On November 8th, voters in three states endorsed “pro-death penalty” measures. In Nebraska, an initiative asking voters to reinstate capital punishment following a 2015 legislative death penalty repeal (over the Governor’s veto no less) passed by a 60-40 margin. In California, a capital punishment repeal measure was rejected by 54% of those who voted. And, in Oklahoma, voters strongly supported a largely symbolic ballot initiative declaring that the death penalty was not cruel and unusual punishment. These developments seem to indicate that Americans (at least in three states) strongly support capital punishment. But—when the obituary of the American death penalty is finally written—the November 8th ballot initiatives will almost certainly be seen as a minor bump near the end of the road to abolition.
For more than a decade, support for capital punishment has steadily declined using all relevant criteria including the number of: states that retain the death penalty; executions, new death sentences imposed, as well as the results of public opinion polls. Despite the initiatives in California, Oklahoma and Nebraska, that did not change in 2016, and it is not going to change significantly in the short or long run. The death penalty in America is dying; it might be a (relatively) slow death, but the numbers don’t lie.
This year, Delaware joined the growing number of states without a death penalty statute in place when its highest court ruled that the state statutory complex was unconstitutional. While there are still thirty-one states that retain capital punishment, in four of those, there are official gubernatorial moratoriums in place. In most of the remaining states, the death penalty ranges from moribund to non-existent as reflected by persons sentenced to death and executed. For example, there will be less than 20 executions nationwide this year, a 75% reduction from the 98 executions carried out in 1999, which was the “high water mark” for state sanctioned killing in the United States in the “modern” (post-1976) era of capital punishment. And the execution drop in 2016 follows declines in each of the last three years with 35 executions in 2015 and 39 executions in 2013. Public opinion polls show that less than half of Americans support the death penalty when given the option of life without parole, down from 80% who said they did so fifteen years ago. Perhaps most importantly, this deep ambivalence about and skepticism of the death penalty can be seen in the fact that prosecutors are seeking the death penalty in fewer cases and—when they do—jurors are reluctant to impose it. There were 49 new death sentences imposed nationwide in 2015, down from 315 that were imposed twenty years ago. There will be even fewer in 2016. This is true even in deep south conservative bastion states like South Carolina and Georgia, which have historically been high volume death penalty jurisdictions. Not a single person was sentenced to death in 2016 in either state.
So, where the death penalty rubber hits the road, support for capital punishment continues to decline. And, given that death penalty politics is so localized, nothing in the recent ballot initiatives is going to affect the slow death of capital punishment. The reality is that even in California, Oklahoma and Nebraska, the number of new death sentences imposed will be negligible. California’s death sentences come out of a few jurisdictions; the reality is most of the state is a “death free” zone. Nebraska will remain, as it always has been, a state where the death penalty is rarely imposed and executions range from infrequent to non-existent, and Oklahoma’s referendum saying that a currently legal punishment is still legal will have no effect on sentencing and execution practices in the Sooner state.
The perceived pro-capital punishment legislative successes also need to be viewed against other voter decisions that tell a more nuanced story. In Hillsborough County (Florida), Harris County (Texas) and Jefferson County (Alabama), three very pro-death penalty prosecutors were upset by reform candidates who ran on criminal justice reform platforms that included seeking the death penalty less frequently (if at all). Governors in Washington and Oregon who supported and vowed to keep in place moratoriums on capital punishment were easily re-elected. And in Kansas, four members of the state supreme court were retained by voters despite a well-funded attempt by conservative groups to unseat them based on their decisions to invalidate the death sentence in several high profile capital cases.
Taking the long view, the death penalty is dying for three primary reasons. First, it is unreliable. We know that innocent people are sentenced to death and innocent people are executed. As of today, 156 death row inmates have been exonerated and released from prison. Countless others have been released from death row (and in many cases from prison) due to their likely innocence but have not, because of the lack of irrefutable proof of innocence, technically been exonerated. And some former death row inmates, persons such as Cameron Todd Willingham, Carlos DeLuna and Richard Charles Johnson were tragically executed despite very strong evidence of their actual innocence. Nothing in any of November 8th’s ballot measures does anything to fix the death penalty’s wrongful conviction problem. Another reason for the death penalty’s demise is its cost. All studies in all states have shown that it costs millions of dollars, and in some states tens or even hundreds of millions of dollars, to execute someone. This exceeds by factors of 10 to 100 what it costs to incarcerate someone for the remainder of their life. Thus, retaining the death penalty diverts a disproportionate share of scarce criminal justice resources to the execution of a small (and dwindling) number of persons at a time when the widespread need for broad criminal justice reform is recognized across party lines. In theory, the death penalty might be worth retaining—despite its staggering cost—if it were a deterrent, but all reliable studies have revealed that the existence of the death penalty in a particular state has no deterrent effect. Again, nothing that happened on election day does anything to minimize capital punishment’s runaway costs. Third, what fuels the death penalty is race. Over 80% of death row inmates are there for killing someone who is white. And the chances of being sentenced to death when the defendant is black and the victim is white are greatest, even when factors such as the heinousness of the crime and the defendant’s prior record are taken into account. When the victim is a white female, the odds go up even more that a death sentence will be imposed and that the person will eventually be executed. This basic pattern has not changed since the Civil War, nor has the fact that the states where the death penalty still (primarily) thrives are the former states of the Confederacy. Again, there is nothing that voters approved on election day that will, or can, rectify the death penalty’s pre-occupation with race.
Due to these intractable problems with capital punishment, which a growing number of Americans find unacceptable, the death penalty is on the way out the door. Abolition will not, however, be a straight line. Inevitability does not mean immediacy and working towards the correct answer to many important social issues rarely is anything but messy in a democracy. Will more people be executed before the American death penalty is officially assigned to the history books? Yes, of course. Might there might even be an uptick in executions in some states, e.g., California, before capital punishment breathes it last gasp? Yes, that is also possible. Nevertheless, American’s experiment with the death penalty is on its last legs. We may, to quote Justice Blackmun, continue to “tinker with death” for the foreseeable future, but nothing that happened on November 8th changes the inexorable march towards the end of the death penalty in this country.
John H. Blume is the Director of the Cornell Death Penalty Project. He teaches Criminal Procedure, Evidence, and Federal Appellate Practice, and supervises the Capital Punishment and Juvenile Justice Clinics at Cornell Law School. Professor Blume has published numerous book chapters and law review articles in the fields of capital punishment, habeas corpus, criminal procedure and evidence.
Suggested citation: John H. Blume, Putting the 2016 Capital Punishment Ballot Initiatives in Perspective, JURIST – Academic Commentary, Nov. 17, 2016, http://jurist.org/forum/2016/11/John-Blume-death-penalty.php
This article was prepared for publication by Ben Cohen, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at firstname.lastname@example.org
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