"The Times They Are A-Changin'" (or are they?)by John H. Blume
New death sentences are down, the number of executions has dropped, public support for the death penalty has declined, and several states have abolished capital punishment. Could this be the beginning of a new era? A time when the United States, like all other Western democracies, decides it can survive without executing its own citizens?
In the last decade there have been significant developments that would lead one to think it is at least a viable possibility.
Finally, several states have abolished the death penalty. In New York, the Court of Appeals held that the New York death penalty statute violated the New York Constitution. (4) Since then, the General Assembly has not reenacted a new capital punishment regime. And there is no indication that New York will bring the death penalty back anytime in the near future. New Jersey abolished the death penalty in 2007, and New Mexico followed suit in 2008. An abolition bill was passed by the Connecticut legislature, but vetoed by the governor. Abolition bills are pending in a number of other states, and, in the next few years, it is likely that at least several more states will repeal their capital punishment laws.
Is there an explanation for these developments? Admittedly, it is difficult to say. But, there do seem to be several factors at work. First is the significant number of death row inmates who have been wrongfully convicted and sentenced to death. There have been 139 exonerations in twenty-six states since 1976. (5) While the evidence is anecdotal, prosecutors and capital defense lawyers I have talked to report that juries have become reluctant to sentence defendants to death in cases where there is not very strong forensic evidence establishing the defendant’s guilt. Since jury behavior often influences the behavior of prosecutors (why seek the death penalty if you probably aren’t going to get it), this may explain, in part, the reduction in the number of death sentences.
The second factor is the availability of life without parole as an alternative to the death penalty. Every state that has the death penalty now has a life without parole option. The Supreme Court has also held that jurors must be informed of the life without parole option alternative. (6) Thus, jurors in capital cases now know that if they sentence the defendant to life without parole, he will never be released.
Finally, there is the issue of cost. All studies demonstrate that the death penalty is expensive. It is much more expensive than incarcerating a convicted murderer for life. The numbers vary from state to state, but it is anywhere from two to ten times more expensive to sentence a defendant to death than it is to impose a sentence of life without parole. California, for example, estimates that it currently spends 137 million dollars a year to maintain its capital sentencing scheme. If capital punishment were abolished, the cost would drop to 11.5 million dollars a year. (7) In New Jersey and New Mexico, the cost of capital punishment was an important factor in the legislative determination to abolish it. (8) These states decided that the death penalty was a luxury they could no longer afford.
The American Law Institute is an independent organization dedicated to scholarly work to clarify, modernize, and improve the law. It is perhaps the most highly respected organization of its kind. These same concerns, especially the possibility of executing the innocent and the high cost of capital punishment, led the Institute to withdraw its support for the death penalty in April of 2009.
But the question remains, is this a momentary blip or a definite trend? The honest answer is we don’t know. One of my colleagues often says that support for the death penalty in the United States is a “mile wide and an inch deep.” It appears now that support may be dwindling and enthusiasm for retaining capital punishment is just a half mile or so wide and a half-inch deep. But, it has not gone away. The optimist (assuming, of course, that you are not a capital punishment supporter) would look at these developments and think a clear trend towards abolition has developed. But the reality is that if one were to go back in time to the 1960s, things would look pretty similar: death sentences had trickled to new lows; 1968 was the first year in the history of the United States that there were no executions; and some states were shedding their dependence on the death penalty as a means of crime control. In 1972, the Supreme Court held in Furman v. Georgia that all then-existing death penalty statutes were unconstitutional. Many, if not most, people thought it was the end of capital punishment in the United States. Thousands of death sentences, 1,195 executions, and hundreds of millions of dollars later, we know that was not the case.
But, there are several important differences between then and now. First, the international picture is much clearer now. In the late 1960s and early 1970s only several of the major democracies in Europe had abolished capital punishment. Now, the death penalty is no longer used for ordinary crimes anywhere in Europe. Additionally, South Africa and many Asian countries have also turned their back on the death penalty. Thus, the retention of the death penalty makes the United States much more of an outlier now than it did forty or fifty years ago. Additionally, the current trend is driven more by public opinion as reflected in jury verdicts and, probably more importantly, legislative action by elected state officials, than the driven abolition strategy of the pre-Furman era. These two differences between “then” and “now” may in fact signal a true trend.
The times may indeed be changing, but the jury is still out on the fate of capital punishment in America. Only time will tell.
1. John H. Blume, Theodore Eisenberg & Martin Wells, Explaining Death Row’s Population and Racial Composition, 1 J. Emp. Leg. Stud. 165 (2004).
4. People v. LaVelle, 3 N.Y.3d 88 (2004).
6. Simmons v. South Carolina, 512 U.S. 154 (1996).
7. California Commission on the Fair Administration of Justice (July 1, 2008).
8. “Debating the Cost of Capital Punishment,” Parade, Jan. 31, 2010.
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