Private: Elections and the Death Penalty

by Rob Smith and Bidish Sarma of the Fair Punishment Project 

There is no denying that the tide of public opinion is turning against the death penalty, but let’s not learn the wrong lessons from this shift in societal support.

In 1992, Bill Clinton left the presidential campaign trail to return to Arkansas so that he could oversee the execution of an intellectually disabled Black man. A quarter century later, ending the death penalty is part of the Democratic Party Platform. The National Hispanic Caucus of State Legislators also called for the end of the death penalty this year. The Pope recently stood in front of Congress and called for death penalty abolition. The National Evangelical Association, a group that called for re-instatement of the death penalty in 1972 as a matter of “Christian ethics,” changed its position this year to acknowledge the legitimacy of a “a growing number of evangelicals [who] now call for government entities to shift their resources away from pursuing the death penalty” due to “the fallibility of human systems, documented wrongful convictions, and our desire that God’s grace, Christian hope, and life in Christ be advanced[.]” And, in 2009, the American Law Institute, the prominent group of judges, lawyers, and law professors that crafted the model capital punishment statute in the 1970s, removed the capital punishment statute from its model penal code.

These anecdotes provide insight into a broader trend: It is no longer political suicide to oppose capital punishment. In fact, many politicians are making competitive runs and being elected on clear anti-death penalty platforms. Seven states have formally abandoned the death penalty over the past eight years (and, in Delaware, the state supreme court invalidated the death penalty statute and the legislature has not passed--and is not expected to pass--a new statute). The governors of four additional states—Colorado, Oregon, Pennsylvania and Washington—have declared moratoriums on executions in their respective states. In Colorado, Governor John Hickenlooper’s opponent released a Willie Horton style advertisement that featured a murder victim’s father calling Hickenlooper a coward. Not only was Hickenlooper re-elected, a statewide poll found that only three percent of voters said that the death penalty mattered most in deciding how to vote for governor. It is likely the governors of Washington and Oregon will also retain their seats next week.

Perhaps most strikingly, incumbent prosecutors from Caddo Parish, Louisiana, to Duval County, Florida, have lost electoral races in part because they used capital punishment too much. Even the County Attorney race in Maricopa County, Arizona—a location that has produced more death sentences than almost any other county in the country in the past 10 years—has the incumbent and his main opponent arguing over who would more aggressively reduce the number of capital prosecutions. In Riverside County, California, a place that sentenced four times as many people to death last year as the entire state of Texas, the incumbent has responded to negative coverage by ensuring that he is working to reduce the number of capital cases that his office pursues.

The most recent Gallup Poll reveals that death penalty support has reached 40 year lows. In 2014, a Washington Post poll showed that Americans prefer life without parole over the death penalty. A 2016 poll from Pew Research found that support for capital punishment dropped below 50 percent for the first time since 1971. And, University of North Carolina Professor Frank Baumgartner conducted a comprehensive review of over 400 public opinion polls and found that support for capital punishment has decreased dramatically and consistently over the last quarter-century.

This shift in public sentiment comes at a time when the death penalty is on the ballot in three states, California, Nebraska and Oklahoma. In California, confusingly, there are two ballot measures: Proposition 62 would eliminate the death penalty; Proposition 66 would change death penalty procedures. In deep red Nebraska, where the conservative legislature recently eliminated the death penalty, there is an initiative to undo that legislation (one funded in significant part by the Governor whose veto the legislature overrode). Finally, in Oklahoma, a state that retains capital punishment, there is a ballot initiative to enshrine the death penalty in the state constitution.

Several commentators have suggested that the results of these votes will determine the future of the death penalty in America, but those suggestions ignore some important political and legal history. In the Washington Post last week, Charles Lane argued that poll numbers showing that California may not repeal the death penalty prove America has not moved on from the ultimate punishment. Andrew Cohen, in a Newsweek column titled, “Capital Punishment is on Trial in the Election,” wrote late last month that the momentum away from the death penalty is “about to run smack-dab into [] ballot measures [] that will test the popular mood and perhaps shape the national debate over capital punishment into 2017 and beyond.” Kenneth Jost, namesake of the popular blog Jost on Justice, noted that while Justices Stephen Breyer and Ruth Bader Ginsburg have expressed doubts as to the constitutionality of the punishment, “[t]hose doubts are gaining ground among the general public, but voters in two death-penalty battleground states apparently are not there yet.”

However, win or lose at the polls next week, it is important to remember the point that the U.S. Supreme Court wrote last year in Obergefell v. Hodges, which established the right to marry for all people: “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Our Constitution’s framers believed that most societal problems are best solved through a system of representative democracy that encourages both representatives and citizens to come together to debate, deliberate and decide issues. At the same time, they understood that some issues may not generate the type of well-considered deliberative process that results in sound and rights-respecting outcomes. One only has to look to California's 2008 passage of Proposition 8, in which voters denied the freedom to marry to all people by a narrow vote of 52 to 48 percent (a nearly identical result to Proposition 34, which attempted to repeal the death penalty in 2012), to see that voters do not always have the last word on issues involving fundamental rights. Indeed, James Madison pointed out in Federalist Paper #51—which emphasizes the importance of the separation of powers between branches of government—“[i]f a majority be united by a common interest, the rights of the minority will be insecure.”

The Supreme Court has acknowledged as “well-known” the baseline fact “that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime.” For this reason, we do not leave the question of whether a particular punishment is excessive to a straw poll. It is too easy to swing public opinion with fear-mongering around a recent and terrible crime or a story that plays on deep-seated crime-related fears we harbor as partners, parents, and law-abiding citizens. So, we ask the judiciary to police the constitutional boundaries under the Eighth Amendment’s ban on cruel and unusual punishment

This is not to say that contemporary standards are irrelevant. The real question is how to measure those standards. The U.S. Supreme Court looks to a wide variety of factors includind: how often juries are imposting a spedifice punishment, how widely the punishment is being used and whether its usage is isolated to just a few counties or states, and whether there are any legislative trends in use. 

One can also look at public opinion polls, but they may be significantly less reflective of our society’s views about the death penalty’s appropriateness than other indicators because they are the most abstract indicator, whereas jury verdicts are the most concrete. Legislative acts and ballot initiatives surely reveal more information about a punishment’s status than public opinion polls. But they also say less than most tend to assume. They systematically undervalue the minority interests at stake. They can be influenced heavily by the dynamics of moral panic and financial resources: alarming ads about purportedly widespread violent attacks; the specter of evil men being released from prison and committing ever-worse offenses; ominous sound bites peddling misinformation.

Juries, however, must actually make the decision to send someone—a real person with an entire life story (usually a tragic one full of trauma)—to death row. Thus, what truly shows where we stand as a nation is how the death penalty is actually deployed in practice. Last year, in a nation of 320 million people and 15,000 homicides, juries only returned 49 death sentences. In other words, roughly speaking, 0.3 percent of homicides result in a death verdict. So far, the number of new death sentences in 2016 is on track to decline even more.

Considering the totality of all of information we have, there can be little doubt that capital punishment is slowly but surely fading into obscurity. Death sentences are in the steepest decline we have ever seen in the modern era of the American death penalty. The number of executions nationwide has plummeted in recent years. A vanishingly small number of district attorneys even seek the death penalty these days. Of the few who regularly plunged their office’s resources into the death penalty pit, several have lost recent bids for re-election. Governors from around the country have put the brakes on their states’ death penalty, raising questions about the system’s unfairness, the racially disparate outcomes it produces, and the ever-increasing expense it entails. Even with the inherent power that anti-crime rhetoric has in this country, public opinion polls demonstrate the lowest level of support in decades. Together, this tapestry of indicators makes clear that America has repudiated the death penalty. 

Regardless of what happens at the polls next week, every indicator suggests the death penalty is in decline. Even if the measures to eliminate the death penalty are defeated, given that voters are being challenged to grapple with how to treat people convicted of the most serious crimes who possess the least political and social clout, even obtaining a significant portion of the popular vote to end capital punishment would be further powerful evidence that the country has abandoned the death penalty. 

Death Penalty