The Decline of Capital Punishment

The death penalty has been used as punishment in the United States since the colonial era, with the first execution dating back to 1608 in the British colony of Jamestown. Throughout U.S. history, capital punishment has been a contentious issue, with moves to abolish the practice in the Jacksonian era and in the progressive period a century later. No major policy changes were made until 1972, when the Supreme Court suspended capital punishment in Furman v. Georgia, ruling that the death penalty for murder was “cruel and unusual” and therefore in violation of the Eighth Amendment. In 1976, the death penalty was reinstated in Gregg v. Georgia, giving jurisdiction to the states. Today, 31 states allow the death penalty. The reinstatement of the death penalty was a detrimental decision by the Supreme Court. It is time that they abolish this cruel and unusual punishment.

Since 1976, public support for the death penalty had an upward trend that eventually declined. There have been 1,463 executions since 1976, and the number of executions each year has roughly mirrored patterns in public opinion. Support peaked in the mid-1990s. In 1994, 8 in 10 Americans favored the death penalty as punishment for murder. The percent of the population in favor of the death penalty began to decrease after 1994, reaching a low in 2017 with only 55% of Americans favoring the punishment. Opposition to the death penalty is the highest it has been since Furman v. Georgia.

Although support among the public as a whole is at a low, opinions about the practice vary among demographics. There is a stark partisan gap in support for the death penalty; as of 2016, only 44% of Democrats favor the death penalty whereas 72% of Republicans favor it. Executions are overwhelmingly more prevalent in the South. Of the 1,463 executions that occurred in the United States since 1976, 1,193 of the executions were in southern states. Texas alone accounts for 544 executions. Virginia is a far second with 113 executions, followed by Oklahoma that has had 112 executions.

The South has the highest execution rate, yet it also has the highest murder rate. These statistics disprove the notion that the death penalty deters severe crime like murder. Death penalty sentencing is often the result of overzealous prosecutors, inadequate public defense systems and racial bias. It has no benefit to society.

Even from a financial standpoint, the death penalty is not an effective practice. The average cost of defending a trial where the death penalty is sought is $620,932, about 8 times of a murder case not seeking the death penalty. Through execution, the median cost of a death penalty is $1.26 million. Spending tax dollars on the death penalty system diverts resources from other crime control measures such as rehabilitation programs, emergency services, education, and prosecutions of child abuse and domestic violence.

Southern states have wider support for the death penalty, but the sheer numbers of death row inmates and executions can be attributed to prosecutors. It is ultimately the decision of prosecutors to seek capital punishment, even though the ruling is in the hands of the jurors and judge. Harvard Law School’s Fair Punishment Project discusses how five “deadliest” prosecutors secured 440 capital convictions, equating to about 15% of the current population on death row. After these prosecutors left office, death sentences dramatically declined in their jurisdictions. It is unfair that just five individuals could have such vast influence on the fate of human lives. The behavior of prosecutors is changing as public support for the death penalty decreases. Today, only one of the “deadly prosecutors” is still practicing law. Prosecutors who so vehemently seek the death penalty and value winning above presenting a fair case tarnish the American justice system and support the idea that the death penalty is arbitrary, along with being cruel and unusual.

Especially when going up against powerful prosecutors, weak public defense systems are a major flaw of capital punishment. Inadequate defense can lead to unmitigated prosecutorial abuse, harsh sentences and the conviction of innocent people. Almost all of the defendants in capital punishment cases cannot afford their own attorneys and are appointed inexperienced, underpaid and overworked public defenders who are no match for the experienced and powerful prosecutors. Nonprofits such as the Equal Justice Initiative work to provide incarcerated individuals with a stronger defense to help eliminate excessive and unfair sentencing, exonerating death row prisoners and working to address the abuse that children and mentally ill individuals face when being tried as adults. Bryan Stevenson, American lawyer and author of Just Mercy, serves as the Executive Director of EJI. His work and book have helped expose the injustices of the criminal justice system, but there is still a long way to go. Abolishing the death penalty would be a major stride in the right direction.

Another issue that cannot be ignored is the racial bias in capital punishment. Blacks account for a disproportionate 44% of executions since 1976 and encompass 55% of the defendants currently awaiting execution on death row. Additionally, the death penalty is most likely to be sought in cases with a black defendant and white victim. 98% of the time, the prosecutor is also white. Although blacks commit more crime, they are still disproportionately incarcerated due to bias at all levels of the justice system, starting with arrests. Clear patterns of racial bias in death penalty cases exist from whether or not the prosecutor will seek capital punishment to jury selection. The criminal justice system is imperfect, but it clearly disadvantages blacks.

The strongest argument for the end of capital punishment is on constitutional grounds. It is cruel and unusual and thus violates the Eighth Amendment.  The terms “cruel and unusual” are left open to interpretation, but the way the death penalty is carried out certainly meet these requirements. The Penalty Information Center estimates that 3.15% of executions are botched, with lethal injections having the highest rate of botched executions at 7.12%. Botched lethal injections include situations where executions have taken over two hours, where the individuals gasping for air or convulsing for extended periods of time and where the needle needed to be placed in several veins before finding one that would work. Lethal injections are not a reliable way to ensure and quick and painless death, yet they are primary methods of execution in every state that still authorizes the death penalty. Nine states still allow use of the electric chair, a method that Georgia and Nebraska have ruled violates the Eighth Amendment. Additionally, the United States is the only western democracy that still practices the death penalty, which fits the term “unusual.”

Since 1976, over 150 death row inmates have been exonerated. The risk alone that a defendant facing the death penalty could be innocent is a strong enough reason to repeal capital punishment. A mistake by the criminal justice system should not cost someone their life. Even when individuals on death row are guilty of their crime, it does not make sense to punish those who have killed with state sanctioned killing.

The death penalty has always been cruel and unusual, and today public opinion is evolving to reflect those views. Although prosecutors and state lawmakers are responding with policy changes, the federal government needs to take a stance. It is time that the Supreme Court abolishes the barbaric practice of the death penalty.