A Reflection on Contemporary Issues Regarding the Death Penalty

The general trend in the use and application of the death penalty is an increasing movement toward abolition.

Talia Roitberg Harmon, PhD.

David Taylor, PhD.

Chelsea Henning

Abstract

The general trend in the use and application of the death penalty is an increasing movement toward abolition. This is reflected in the repeal of state death penalty laws, state moratoriums, and the reduction in executions and death sentences. The nature of the death penalty debate has also changed in the past two decades. Radelet and Borg (2000) provided an exhaustive overview of the nature of the debate surrounding capital punishment. This comment updates and reflects on some of the crucial contemporary scholarship that has been done in the following six central areas: incapacitation, deterrence, caprice and racial bias, retribution, innocence and miscarriages of justice, and cost. The authors also consider emerging frames that are impacting the debate. The main conclusion is that current scholarship continues to have a significant impact on framing the debate as well as creating the potential for the eventual abolition of capital punishment in this country.

Keywords

Capital punishment, death penalty, incapacitation, deterrence, racial bias, retribution, innocence

The state of South Carolina in 2022, which had not executed a person in more than ten years, was scheduled to execute Richard Moore and Brad Sigmon via firing squad. Both men have received their third stays of execution while the South Carolina Supreme Court reviews the constitutionality of the firing squad and electric chair as methods of execution (DPIC, 2022a). Two years earlier, after a decades-long hiatus, the federal death penalty had been resurrected by the Trump Administration for a brief six-month period (July 2020 – January 2021), resulting in the executions of 13 death row inmates. These examples are counter to the general trend of using capital punishment in the United States. Contemporary trends provide growing tendencies toward opposition and abolition. Public opinion polls illustrate the volatility in the application of the death penalty, and the lack of a shared and consistent national consensus when it comes to capital punishment.

One year after the 50 th anniversary of Furman v. Georgia (1972), the landmark case where the death penalty was ruled unconstitutional due to its arbitrary, capricious, and discriminatory application 1 ; it is appropriate and timely to revisit and update Michael Radelet and Marian Borg’s 2000 seminal article, “The Changing Nature of Death Penalty Debates.” Both globally and here in the United States, some aspects of the debate have remained the same; however, much has also changed in the capital punishment landscape over the past 23 years.

As of the end of 2022, there were 2364 men and 50 women on death rows in 27 states and two federal jurisdictions (NAACP, 2022; DPIC, 2022b). This is down from approximately 3500 men and 50 women on death rows in 38 states and two federal jurisdictions in mid-1999 (see Radelet & Borg, 2000). In addition, there have been 804 executions in the past two decades that have resulted in a total of 1,565 executions since 1976 (DPIC, 2023).

The general trend in the use of the death penalty illustrates a steady and consistent movement toward abolition. This inclination can be categorized by a precipitous drop in executions and court ordered death sentences (DPIC, 2022b; McCord & Harmon, 2017 & 2019; Steiker & Steiker, 2020). For example, McCord & Harmon (2017) documented: “death sentences [have] plunged from 310 in 1994 to 73 in 2014—an astonishing 76% decline” (p. 2). Additionally, this number has consistently decreased since 2014 to 18 death sentences per year in 2020 and 2021 and 20 in 2022 (DPIC 2023). Furthermore, states have moved toward repeal of their death penalty laws (DPIC, 2019a), or have placed moratoriums on executions by governors (DPIC, 2019b).

Since 2000, eleven states have abolished the death penalty, bringing the total number of states without the death penalty to twenty-three (See Table 1). In addition, three states have placed gubernatorial moratoria on the death penalty since 2000 (DPIC, 2019b). In 2021, Virginia became the latest state, and the first of the traditional southern states, to abolish capital punishment (DPIC, 2021a). 2

Table 1: State-by-state death penalty status as of 2023. (Adapted from DPIC Data)

Worldwide, since 2000, more than thirty countries have abolished the death penalty for all crimes (DPIC, 2022c) bringing the total number of countries that have abolished the death penalty in law for all crimes to 108. Fifty-five countries still retain the death penalty (Amnesty International, 2022a). 3 Tables 2-5 represent a current list of all abolitionist and retentionist countries. Most of the countries that abolished the death penalty did so due to a consensus that the practice violates human rights and international law (Amnesty International, 2022b). Mathias (2013) also found that aside from a human rights perspective, the predominant religion in the nation-state was significantly related to abolition of the death penalty. More specifically, Catholic nation-states were more likely than Muslim nation-states to abolish the death penalty.

Table 2: Abolitionist countries for all crime. (Adapted from Amnesty International data)

Table 4: Abolitionist countries in practice. (Adapted from Amnesty International data)

Table 5: Retentionist countries. (Adapted from Amnesty International data)

Gallup polls since the late 1990’s has indicated a significant decline in support of capital punishment for those convicted of first-degree murder. A recent Gallup poll establishes stability during the past six years with approximately 55% of Americans supporting it (Gallup Inc., 2022). Notably, since 2019, most Americans support life without parole (LWOP) over capital punishment for the first time since Gallup began asking the question in 1985 (Gallup Inc., 2022; DPIC, 2020).

Radelet and Borg (2000) provided a comprehensive summary of the debate and the primary issues of concern where social science research has made an impact. The present analysis provides an update and extends their analysis since the time of their publication. As noted above, substantial consideration has been given to social concerns during the past 22 years. These have necessitated an update of the issues to provide a reflection on the contemporary scholarship that has been done in the six areas that these pioneering scholars identified as central in the debate. This is crucial to determine what has shifted and what has remained stable over time. Key central issues examined are incapacitation, deterrence, caprice and racial bias, retribution, innocence and miscarriages of justice, and cost. The main argument of this article is that the current scholarship has continued to have a significant impact on framing the national debate as well as creating the potential for the eventual demise of capital punishment in this country.

STEADY PROGRESS TOWARD ABOLITION IN THE UNITED STATES

Scholars have hypothesized numerous factors to account for the recent significant downward shift toward abolition: increase in costs (Steiker & Steiker, 2010), lethal injection drug shortages and botches (Harmon et al., 2020; Steiker & Steiker, 2020; Sarat 2022), wrongful convictions (Hicks et al., 2021; Wu, 2021; EJI, 2022; Norris & Mullinix, 2019), racial bias (EJI, 2022; Garrett et al., 2017; Baumgartner et al., 2015; Cholbi & Madva, 2018; VIJ, 2021; Steiker & Steiker, 2015; Ulmer et al., 2021), increased professionalism and improved trial-level capital representation, a significant drop in public support (Gallup Inc., 2022; Steiker & Steiker, 2020), and, most recently, COVID-19 (Amnesty International, 2021; Chammah & Blakinger, 2020).

The vast improvement in defense lawyers’ representation of capital defendants may also contribute to prosecutors’ willingness to forgo capital prosecutions which in turn, also may enhance the cost of capital cases. Moreover, public opinion from 2000-2017 showed a consistent trajectory downward from 65% to 54% in favor of capital punishment and that percentage has remained stable through 2022. Although there remains a majority of Americans who continue to support capital punishment, the trend appears to be approaching more of a “50-50 split” (Gallup, Inc., 2022).

Public support for the death penalty has significantly declined in the previous 20 years. In the most recent Gallup poll on Americans’ attitudes about capital punishment, conducted in October 2022, 54% of Americans stated that they were in favor of the death penalty for a person convicted of murder. This is down from 66% in 2000 and represents the lowest level of support for the death penalty since just prior to the Supreme Court’s Furman v. Georgia decision. In the last 20 years, support for the death penalty peaked at 70% from 2002-2003 but declined to 55% in 2017 and has remained steady at that level ever since (Gallup Inc., 2022). Still, it has yet to dip below the 50% mark to allow opponents to proclaim that more Americans oppose the death penalty than support it.

When faced with the option of life imprisonment with absolutely no possibility of parole (LWOP), public support for the death penalty drops considerably. In 2019, when the question of LWOP over the death penalty was posed, 60% of respondents chose life imprisonment as the better penalty for murder. This represents an increase of 23 percentage points from (February) 2000 when only 37% chose life imprisonment. This steady and rather swift decline contrasts with the 15-year period from 1985 until 2000 when the choice of life imprisonment varied only slightly, from a low of 29% to a high of 38% 4 % (DPIC, 2021g; Gallup Inc., 2022).

Other examples of this trend occurred when a record 62 percent of Californians indicated that they prefer LWOP over the death penalty as a punishment for murder (Public Policy Institute of California, 2019). Furthermore, interesting results have been reported in the traditionally stalwart states of Texas and Florida. A recent poll of registered Texas voters found that support for the death penalty, while still strong, has fallen significantly over the past decade. A University of Texas/Texas Tribune internet survey of 1,200 registered voters conducted from April 16-22, 2021, found that 63% say they favor keeping the death penalty for people convicted of violent crimes. The recent poll is a significant decline from 75% in February 2015 and 78% when the poll started in 2010 (DPIC, 2021b). Florida provides another illustration of this phenomenon. A poll in 2016 found that 62% of Floridians favor some form of life in prison for convicted murderers, while only 35% of Floridians prefer the death penalty for convicted murderers (DPIC, 2016).

Scholars have hypothesized various factors that have led to the drop in public support including increased media attention devoted to wrongful convictions and high-profile exonerations, as well as racial discrimination in the application of the death penalty (Baumgartner et al., 2008; Harmon et al., 2016; Dieter, 2015; Steiker, 2013; Aronson & Cole, 2009; Williams, 2007; Fan, 2002; Zalman et al., 2012). Moreover, an additional area of focus on public opinion includes empirical tests of the Marshall hypothesis. In his concurrence in Furman, Justice Marshall had concluded that most people are uninformed about the death penalty; and if given information, “people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty, shocking, unjust and unacceptable” p. 361. Several studies have sought to examine specific types of knowledge that are influential in swaying public opinion and concluded that race of victim bias, cost, innocence, and deterrence were all significant factors (see Lambert & Clarke, 2001; Cochran& Chamlin, 2005; Michel & Cochran, 2011; Harmon et al., 2022).

Logic dictates that the emergence of true and genuine LWOP sentences have also contributed to the sharp decline in public opinion since one of the primary arguments for proponents continued use of the death penalty relates to future dangerousness or a lack of complete incapacitation for capital offenders (Blecker, 2013). This issue clearly ties into the incapacitation argument and point that the death penalty may still be seen as necessary because inmates pose a future danger to others in prison including prison guards (Van den Haag & Conrad, 1983; Van den Haag, 2014; McLeod, 2018); In contrast, important research conducted on the Furman commutations reject this notion and suggest an extremely low recidivism rate (Marquart & Sorensen, 1989; Buffington-Vollum et al., 2008; Sorensen & Cunningham, 2009). Universal adoption of LWOP by death penalty jurisdictions provides a palatable alternative to execution and a “way out” for prosecutors who need political cover or the appearance of being tough on criminals. Significant research has been conducted on the explosion of LWOP as the new “alternative death sentence” suggesting that many of the same central concerns with capital punishment are also prevalent with LWOP such as high cost, racial bias, factual innocence, and lack of a superior deterrent effect (Kleinstuber, et al. 2022).

At the time of the Radelet and Borg article, scholars seemed to discount the deterrence argument based upon social science research (Acker, 1993). In fact, the American Society of Criminology (ASC) announced in 1989 that the only conclusion that could be drawn was that the death penalty was not a superior deterrent to LWOP, thus suggesting capital punishment should be abolished (Radelet & Lacock, 2009). Based on a sample of “distinguished scholar experts,” they found less than 10% believed the death penalty could be justified on deterrence grounds (p. 500). More current econometric studies gained attention and resulted in a temporary resurgence of this argument among proponents of capital punishment (Cloninger & Marchesini, 2001 & 2006; Zimmerman, 2004; Mocan & Gittings, 2003; Shepherd, 2004 & 2005). However, a follow-up report conducted by the National Research Council in 2012 critiqued all deterrence studies on capital punishment and have ultimately tempered this scholarly controversy. For example, they concluded:

Research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. The committee was disappointed to reach the conclusion that research conducted in the 30 years since the earlier NRC report has not sufficiently advanced knowledge to allow a conclusion, however qualified, about the effect of the death penalty on homicide rates. (Nagin & Pepper, 2012, p. 2)

CAPRICE AND RACIAL BIAS

Current scholarship on racial bias has continued to show strong race of victim effects in numerous states (Baumgartner et al., 2015; Grosso et al., 2019 & 2020; Ulmer et al., 2019 & 2021; Pollock & Johnson, 2021; Garret et al., 2017). These race effects appear pronounced when examining the race of the victim and more so when looking at the racial combination of the race of the defendant and victim (as an example, see Grosso, et al. 2020). Follow-up studies to the Government Accountability Office (GAO) report continues to show primarily race of victim bias in over 15 jurisdictions (see Gross et. al, 2022). By way of another example, Ulmer et. al (2019), found race of victim bias in Pennsylvania. Pennsylvania (DPIC, 2022d), Washington, Delaware (NCSL, 2021), Virginia (DPIC, 2021a), and Maryland have abolished the death penalty due to concerns about racial disparities influencing sentencing decisions (Simpson, 2013). See Table 6 for listing of all states since 2000 that have abolished the death penalty due to concerns related to racial bias. Vandiver (2005) offers an analysis of the complex relationship between race, lynchings and legal executions in the South. Similarly, in a more recent study, Rigby and Seguin (2021) found that lynching and slavery were significant predictors of executions. As stated by the ACLU, “this disparity is a reminder that the death penalty has evolved in this country from lynching and cannot be extricated from this racist past” (ACLU, 2021). The gender of the victim also plays an important role in the racial dyad between the victim and defendant. Baumgartner (2016, 2022) found both race of victim and gender bias (white female victim cases were significantly more likely to end in death sentences and executions in Kentucky and Florida). Additionally, Cochran et. al., (2017) found that the offender’s race, in sexual assaults of white female victims in North Carolina capital cases (1977-2009) suggested “the continuing endurance of this cultural legacy of lethal vengeance” p. 396. The long history of connecting racism, lynching and capital punishment, particularly in the Southern “death belt,” cannot be overstated (Steiker & Steiker 2020; EJI, 2022). Consequently, this issue has continued to remain prominent and impactful on the debate.

Table 6: State reasons for abolition since 2000.

Proponents of capital punishment have continued to justify its use primarily on retributive grounds. While there have been fewer proponent scholars in recent years to advocate for retribution, it remains one of the primary arguments in favor of capital punishment (Blecker, 2004 & 2008). For example, among the small minority of criminal justice and criminology academics who expressed (often qualified) support for the death penalty, the favored rationale is simple retributive justice—mirroring the sentiments of the general public (Griffin, 2021). Support for the death penalty is strongly associated with a belief that when someone commits murder, the death penalty is morally justified. Among the public overall, 64% report the death penalty is morally justified in cases of murder, while 33% say it is not justified (PEW Research, 2021).

While only asked periodically, and as an open-ended question, the most listed reason for favoring the death penalty for persons convicted of murder remains “an eye for an eye” or similar statement that speaks to punishment equivalent to the crime committed. The last time Gallup posed this question was 2014, and of those who responded that they are in favor of the death penalty, 35% of those respondents listed such a statement. This is down from 37% in 2003, 48% in 2001 and 50% in 1991. However, at the same time, “they deserve it” increased from 6% in 2001, 13% in 2003, and 14% in 2014 (Gallup Inc., 2014).

The evolution of retribution as a rationale supporting capital punishment is a difficult one because it cannot be swayed by evidence or empirical data and thus, cannot be falsified. Additionally, even though there doesn’t seem to be many novel or revolutionary arguments on the retribution front over the past 20 years, scholars continue to go through the chore of explaining the rationale and logic behind a retributivist approach and justifying the retributivist position either philosophically or on epistemic grounds (See, for example, McDermott (2001), Budziszewski (2004), Roberts-Cady (2010), Yost (2010), and Caruso (2018)).

In 2000, Radelet and Borg concluded that when you take away deterrence, retribution is all we have left. On that notion, international human rights organizations have been less than conciliatory. In 2007, Amnesty International proclaimed, “What the argument for retribution boils down to, is often no more than a desire for vengeance masked as a principle of justice.” In 2014, in concert with the World Against the Death Penalty Day, 12 United Nations member States released a joint declaration stating that, “State executions should not be taking place in the 21 st century” (United Nations News, 2017). Modern justice systems must aspire to more than retribution.” And, in 2016, United Nations Secretary-General Ban Ki-moon called the death penalty a cruel and inhumane practice, one “which has no place in the 21 st century (Astor, 2016).

Proponents have always been willing to accept some level of error in the name of meeting out justice for the “worst of the worst” (Van den Haag, 1986; Epps, 2015). Nowhere was retribution for the “worst of the worst” more on display than in the November 2022 trial and sentencing of Nikolas Cruz, the Parkland school shooter, where the jury failed to unanimously recommend death, instead opting for a life sentence. This prompted an opinion piece in the New York Times titled, “If Not the Parkland Shooter, Who is the Death Penalty for?” The jury, however, tempered its sentence due to considerations about mental health, his mother’s fetal alcohol abuse and other mitigating factors (Blecker, 2022).

For retributivists, much of the death penalty debate has relied on a fundamental notion that we have never proven that we have executed even one innocent person, and if we have, it is such a small number that it is immaterial and a small price to pay. As Robert Blecker said in a debate sponsored by the Jewish Learning Institute:

Opponents of the death penalty, often called abolitionists, by themselves as well as us [retributivists], attack it, principally, these days, on two grounds: Number one is that we might mistakenly execute the innocent. Number two is that it is racially biased. Let’s take them one by one. Executing the innocent. We do not know for a fact that we have executed even one innocent person. We suspect we have; we probably have; many fewer than the abolitionists claim. But we probably have. I don’t know who it is, but it is horrifying that we have, if we have, and we probably have. Jewish Learning Institute (2022, December 2).

INNOCENCE AND MISCARRIAGES OF JUSTICE

Miscarriages of justice in capital cases continue to plague the country and garner significant media attention (DPIC, 2021c; Montana Innocence Project, 2021; EJI, 2020; National Coalition to Abolish the Death Penalty, 2022; Innocence Project, 2021). This issue has taken the forefront of the debate and has exploded in recent years. The current number of post-Furman exonerations has reached 186 and the average number of exonerations per year from 2000-2020 was 4.29 (DPIC, 2021d) As of 2022, the instrumental use of DNA evidence to exonerate capital offenders has occurred in 28 capital exonerations (DPIC, 2022e). Nonetheless, contrary to the myth that DNA is the answer to solving the miscarriages of justice issue, DNA is not readily available to be used to exonerate wrongful capital cases (DPIC, 2021e). It is notable that these DNA exonerations demonstrate that wrongful convictions are a significant concern and have surfaced as a central argument in the overall death penalty debate. Prior research suggests the following factors are associated with wrongful murder convictions: perjury of witnesses, prosecutorial and police misconduct, false confessions, faulty forensic evidence, ineffective assistance of counsel, and mistaken eyewitness testimony (Scheck, 2005; Scheck, 2010; Harmon 2001; Harmon & Lofquist, 2005; Harmon & Falco, 2017; Gross, et al., 2004).

Much of the current miscarriages of justice research has focused on exonerations but the more controversial task of identifying wrongful executions has not been tackled by many scholars (Lofquist & Harmon, 2008). The DPIC does contain a list of several of these potential cases as well (DPIC, 2022f) 5 . Witness to Innocence, established about 20 years ago, is an organization that was founded by Sister Helen Prejean, an anti-death penalty activist, and Roy Krone, the 100 th post-Furman death row exoneree in the United States. This organization established the Dreams Project in 2022, which is the first initiative to provide social services and financial support to exonerated death row inmates in the United States (WTI, 2022). Additionally, they were selected for the prestigious 2022 Progressive Champion Award by the American Constitution Society (ACS).

Over the past decade, a number of emerging frames have begun to define the evolution of the death penalty debate. These might best be described as reflecting evolving societies and evolving standards of decency. More specifically, the impact of the death penalty on those other than the offenders has been revealed, raising questions and concerns about a fundamental legal principle that punishment should only be meted out to the person responsible for the offense. Radelet (2016) offered deep insights into the very real and, arguably, unnecessary impact of a death sentence experienced by both the families of the victims 6 as well as the families of the offenders. The collateral damage done is not limited to families, as the countless number of individuals associated with the event of an execution likely experience long-term negative physical and mental health effects including post-traumatic stress. This includes prison medical directors, correctional officers, witnesses to an execution, defense attorneys, spiritual and religious staff, and attendants tasked with carrying out the most final of acts 7 , a state-authorized execution. While these are largely anecdotal and journalistic accounts to date, this area of research offers an opportunity for future scholars to more systematically explore the impact of what Radelet calls the “incremental retributive impact” of the death penalty (p. 795).

Research indicates the last two decades has witnessed a dismantling of traditional proponent arguments in favor of the death penalty. Retribution cannot be refuted with scientific data. Thus, leaving retribution as the significant argument in favor of this archaic punishment. Meanwhile, the debate over the death penalty, largely reflected in national and regional opinion polls, reveals a public steadily moving away from the death penalty in favor of lifetime incarceration.

Indeed, much has changed in the past two decades. Even as recently as 2000, when Radelet and Borg published their influential article, the event of a miscarriage of justice was just beginning to generate more heightened media attention beyond the narrow legal circles of attorneys and advocates intimately involved in a capital case. The explosion of social media in the early 2000s and the subsequent and unfettered ability to widely share and promote public education campaigns have brought issues of race, innocence, and miscarriages of justice to the forefront of America’s dialogue on the death penalty. Today, high profile figures from government to entertainment celebrities are publicly advocating for death row inmates and politicking about the inhumanity of capital punishment. Nationwide, consistent with the national mood occasioned by the George Floyd killing and Black Lives Matter movement, more self-described “progressive prosecutors” have been elected (see, for example, Philadelphia and parts of California, Texas and Florida). These elected officials 8 are taking very public stands against the death penalty, going so far as making it part of their election platforms.

The Supreme Court’s role in deciding the legitimacy of capital punishment in the U.S. is pivotal. For example, as pointed out by Steiker & Steiker (2020), if abolition is likely to occur, it “will require intervention by the Supreme Court” p.310. In recent years, numerous Supreme Court justices have called for a reconsideration of the Gregg decision (1976) on the basis of “evolving standards of decency” 9 p. 310. However, this type of argument seems implausible as the “Court is presently constituted seems unlikely to embrace a global challenge to the American death penalty” p. 310. Ultimately, legislative, or judicial action will be required to formally put an end to capital punishment in the United States. In practical terms, however, when and if this ever happens, it might largely end up being more symbolic than anything else if the trends around the states movement away from the death penalty and the imposition of death sentences and executions continue along recent trajectories.

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David Taylor, PhD., Niagara University, Associate Professor, Department of Criminology & Criminal Justice.

Chelsea Henning, Niagara University, Graduate Student, Department of Criminal Justice and Criminology.