Running out of Appeal: Will We Experience the Death Knell of Capital Punishment in the U.S.?

In 1976 the Supreme Court reinstated the death penalty in the United States for serious crimes on the basis that it would be a deterrent to committing grave acts against the law, like murder, and as a means for society to gain retribution against a moral wrong. [1]  Eighteen states and the District of Columbia, however, have outlawed capital punishment, either since 1976, or prior to the Supreme Court ruling, and have not brought it back.

Thirty more states that have the death penalty have not carried out an execution in more than 5 years. According to the National Coalition to Abolish the Death Penalty (NCADP) this means that about 2% of American counties have been responsible for 30% of all executions in the U.S. in the time since the Supreme Court allowed the death penalty to resume. [2]  

Since 1976, a little over 1,400 executions have occurred in the United States. Of that 1,400, more than 915 (or about 65% of the total) have been put to death in just five states in the following descending order: Texas, Oklahoma, Virginia, Florida, and Missouri. 

The number of executed persons could have been higher. Around 150 innocent people in the U.S. have been released from death row due to DNA tests or other evidence that came to light after their convictions. Additionally, clemencies have been offered to more than 275 people. [3]

The Innocence Project (IP) is a nationwide organization that reviews hundreds of cases (although not limited to death penalty matters) where convictions may be in doubt. The IP, referring to some studies that try to determine how many Americans currently incarcerated may be innocent, suggested that the percentage may be 2-5%. If only 1% of inmates are wrongly convicted that would mean that more than 20,000 citizens are being imprisoned for crimes they did not commit. [4]

In the last 25 years 329 people representing 37 states have had their convictions overturned after DNA testing exonerated them. IP points out that the criminal justice system has a number of flaws that can increase the likelihood of wrongful convictions. Witness testimony is frequently a cornerstone of prosecutions, and carries weight with juries, but can be unreliable. IP notes that incorrect eyewitness testimony was a contributing factor in three-quarters (75%) of the wrongful convictions it has been involved with. False confessions or admissions made by frightened or confused persons of interest in police custody play a role in about a quarter of wrongful convictions. The priority to get convictions and keep the bad guys off the street can sometimes blind law enforcement, prosecutors, and even magistrates, and can cause them to rush to judgment or set aside information that works against their cases.

Forensic science has immeasurably helped investigate crime. But there are still occasions where scientific standards may not be rigorously applied, or are trumped up to fit the law enforcement case being built. Informants, like witnesses, can provide crucial testimony, but the information they give can also be unreliable. Often informants have an incentive to give false information because they will receive special treatment in a criminal case of their own as a result of doing so. Cases in which a wrongful conviction occurred often took place because a defendant without financial means had an overworked public defender, or simply poor legal counsel.

At the beginning of 2007 all but twelve American states had the death penalty. But six additional states abolished capital punishment in the six years that followed. The national media reports about the overturning of capital cases because of new evidence, and what appears to be an arbitrary and racial undercurrent in the selection of defendants to be exposed to the death penalty, have given pause to legislators around the country. Moreover, jurisdictions face a difficult decision in determining the method of execution. California, North Carolina, and Arkansas, as well as the Federal Government, have effectively placed moratoriums on carrying out executions due to an inability to develop a standard protocol for the drugs to be used in lethal injections, and procedures for their utilization. [5]

Another state in that position, Maryland, simply decided to end capital punishment. Then Governor Martin O’Malley said, “Over the longer arc of history, I think you’ll see more and more states repeal the death penalty. It’s wasteful. It’s ineffective. It doesn’t work to reduce violent crime.” [6] Today O’Malley is exploring a dark horse candidacy for the Democratic Party’s nomination.

Delaware and Colorado made serious attempts to end capital punishment in 2013. Delaware’s Senate passed an anti-death penalty bill, but it was defeated in the House of Representatives. Colorado Governor John Hickenlooper effectively created a moratorium in his state when he stayed an execution in 2013, and signaled that he may do the same in other cases. Hickenlooper said, “If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado’s system for capital punishment is not flawless.” The Governor went on to muse whether the state should take the lives of citizens regardless of whatever reforms to the system could be made. Hickenlooper’s opposition to the situation in Colorado was used against him in the 2014 gubernatorial election, but he was reelected. 

In Nebraska the Judiciary Committee of that state’s unicameral legislature is this year, once again, advancing a ban on the death penalty. A previous attempt was vetoed by the governor in 1979, and may fall victim to current governor Pete Ricketts’s pen in 2015. [7]

New Hampshire’s attempt to pass a ban last year fell by a single vote in the legislature. Governor Maggie Hassan had announced she would have signed the bill into law had it passed. [8]

These close brushes with an end to executions may bring anti-death penalty and consistent pro-life advocates a sense of hope. But, sadly, there has also been some backsliding on the issue.

North Carolina has been swept into a right-wing maelstrom in the last few years with all levers of power in the state belonging to the Republicans. The General Assembly threw out the Racial Justice Act of 2009, in which inmates could cast doubt on convictions by providing statistical evidence of discriminatory patterns of justice in the jurisdiction where they were sentenced. [9] Throwing out the Racial Justice Act will presumably mean an easier path to the carrying out of executions, since it eliminates one appellate avenue.

Florida, already a national leader in executions, has passed the “Timely Justice Act,” imposing deadlines on the appellate process. [10] Putting definite time constraints on mounting an effective challenge to a capital case increases the likelihood that Florida will act too quickly to put an inmate to death.

All states that perform executions by lethal injection (the most popular method) have begun to have a problem securing the necessary drugs, because many of them are developed by European pharmaceutical companies. Due to firm opposition in the European Union (EU) against executions in the United States, the drug makers are now banned from exporting those products to this country. [11]

The U.S. finds itself in a similar diplomatic persona non grata status when it comes to extradition law. Most EU countries, and many democracies around the world, including Canada and Mexico, will not send a captured fugitive back to America if the person in question would be tried in a capital case.

At the United Nations (UN), Secretary-General Ban Ki-Moon of South Korea has stated that “(t)he death penalty has no place in the 21st century.” [12] The UN’s Office of the High Commissioner of Human Rights has called for the universal abolition of capital punishment around the world. Of the 195 UN members or observers, 53% (103 states) have abolished the death penalty, and 26% (50 states) have retained the death penalty but have not recently carried out an execution or otherwise have placed a moratorium on the practice. Only 18% (36 states) maintain the practice including some of the most consistent abusers of human rights such as China, Iran, North Korea, Saudi Arabia, and Sudan.  Is this the kind of company the United States wants to be included in? [13] [14]

Legislative bodies and religious organizations seem to be the most consistent opponents to the death penalty, as ordinary citizens have generally supported capital punishment according to Gallup polls throughout the years. Only once did Gallup find a majority of Americans opposed to state-sanctioned executions. This was in May of 1966 when 47% were opposed and only 42% were in favor. By the late 1980s, with a conservative ascendency in domestic politics, a mere 13% said they were against the death penalty. But in the intervening years, due to media reports, court findings of innocent people being sentenced to death, and the growing realization that capital punishment is invariably applied to poor and minority defendants, the percentage against it has more than doubled to about a third of the population. [15] In 2009, 59% of those asked believed that at least one innocent person had been put to death in the previous five years.

Due to the appeal process and other associated legal costs that arise associated when a prosecutor seeks the death penalty, capital punishment winds up being a very expensive form of criminal justice. The National Coalition to Abolish the Death Penalty (NCADP) notes that cases in the state of Washington where a defendant was sentenced to death cost approximately $1,000,000 more on average than comparable cases in which the death penalty was not sought. [16] 
Many advocates and observers are concerned that the vast sums states and counties spend in order to legally cover their tracks in death penalty cases could be better spent on early childhood education, community-based gang prevention efforts, and increased funding of mental health and substance abuse programs that can and do divert anti-social behavior. With adequate services and support, there is less likelihood someone may commit crime.

There is a tendency for supporters of the death penalty to say that those who are opposed to state-sanctioned killing would feel differently if they worked in law enforcement and had to deal with these perpetrators and aggressors. But a 2009 nationwide poll of police chiefs by the Death Penalty Information Center (DPIC) gives a very different result. When chiefs were asked multiple choices for the top three factors that interfere with effective law enforcement, the most selected responses by far was ‘lack of resources’ for their departments, ‘drug/alcohol abuse’ in their jurisdictions, ‘family problems/child abuse’ outcomes, and lack of programs for ‘mental illness’. The choice with the least votes was ‘insufficient use of the death penalty.’ When asked to decide whether certain statements were accurate or inaccurate according to their experience, 69% of chiefs agreed that “(p)oliticians support the death penalty as a symbolic way to show they are tough on crime,” suggesting that elected officials use the death penalty as a smokescreen to avoid tougher legislative choices that could better supply community or law enforcement resources. When asked whether “the death penalty is one of the most important law enforcement tools,” 66% disagreed. Finally, 69% of law enforcement top officials disagreed that “(m)urderers think about the range of possible punishments before committing homicides.” 57% of those polled disagreed that the death penalty works as a deterrent. [17]

One particularly emphatic response against the death penalty in the DPIC report was made by the chief of West Orange, N.J., James Abbot, who said, “I no longer believe that you can fix the death penalty. I learned that the death penalty throws millions of dollars down the drain - money that I could be putting directly to work fighting crime every day - while dragging victims’ families through a long and torturous process that only exacerbates their pain. . . Give a law enforcement professional like me (money), and I’ll show you how to reduce crime. The death penalty isn’t anywhere on my list.”

Criminologists are almost unanimous in their belief that the death penalty does not lower the rate of murder. 88% said it does not do so in a 2008 poll published in the Journal of Criminal Law and Criminology. That is an even higher rate than the result of a similar poll in 1996 when 83% did not agree with the death penalty’s value as a deterrent to the commission of serious crimes. [18]  

Pope Francis has denounced the death penalty, which is not surprising given Catholic teaching on the sanctity of life, but he has gone further in his critique of the criminal justice system than other pontiffs. Speaking before the International Association of Penal Law in October, the Holy Father said, "(i)t is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor… All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty.” [19] However the pope may have surprised some by also saying that inhumane conditions were tied to sentences of life imprisonment. Francis referred to life imprisonment as a “hidden death penalty.” In the same talk, although not specifically referring to the United States, the Pope referenced extraordinary rendition as "illegal transportation to detention centers in which torture is practiced."

The Pope’s call for decency echoes the teachings of many other faith groups. The National Council of Churches (NCC) has officially called for the abolition of the death penalty since 1968 (although some individual churches have opposed it for much longer). [20] The NCC represents most mainline Protestant and Eastern Orthodox denominations in the United States. Conservative, Reform, and Reconstructionist wings of Judaism are also opposed to the death penalty. [21]

Evangelical and non-denominational churches in the United States appear to be the only religious supporters of the death penalty in the United States. The Southern Baptist Convention and the fundamentalist counterpart to the NCC, the National Association of Evangelicals, support “fair and equitable” application of the death penalty in serious matters. [22]  But evangelicals who want their faith movement to have a leadership role in social justice causes have formed organizations like Evangelicals for Social Action, which has urged an end to capital punishment, and has promoted prison reform. [23]
There are many reasons to oppose the death penalty. There is the possibility that, however rigorously the legal system operates, an innocent person might be put to death. Whether the condemned has been justly convicted or not, there have been numerous botched executions in recent years that have resulted in deaths that may clearly be “cruel and unusual.” The number of poor and racial minorities who receive the death penalty convictions is disproportionate in relation the number of white and affluent defendants receiving capital punishment for similar crimes. There is no solid evidence that capital punishment is a deterrent that leads to less violent crime. Finally, if murder is morally wrong, then it is wrong for society to sanction it by the state.

In a 2013 New Year’s Day editorial opposing the death penalty, The New York Times noted that the Supreme Court used the reasoning of the "evolving standards of decency" (first articulated in the majority opinion of a case in the Earl Warren Supreme Court in 1958’s Trop v. Dulles in which a person’s citizenship had been revoked as a punishment) in deciding that imprisoning youth offenders to life imprisonment without the possible of parole was cruel and disproportionate in 2011. [24] The Times proposed that the high court should employ similar standards of a progressive view of decency in curtailing all capital punishment in the U.S. [25] The United States should indeed heed the call of decency and compassion called for by the Holy Father, most other faith leaders in the nation, and a growing percentage of the population, and begin dismantling a cruel and arbitrary system that increasingly makes the United States an international outlier.

Kirk G. Morrison

Kirk Morrison is chairman of the National Committee of the American Solidarity Party.