The Death Penalty on Life Support
Forty years ago, Americans’ moral qualms almost ended the death penalty. Now we’re abandoning it again — but not because we object to executions.
(Editor's Note: The Connecticut Legislature voted today to abolish the death penalty for all future cases, becoming the fifth state in the last four years to do so. The following is a piece written by Vince Beiser for the upcoming debut issue of Pacific Standard. It explores the reasons why the death penalty is falling out of favor.)
You may have noticed something about the debate over the death penalty in the presidential race: there’s hardly been one. That speaks volumes about how this persistent institution is quietly fading away in the U.S. — for the second time in history.
Most Americans support capital punishment, in principle. That majority, however, has shrunk from 80 percent in 1994 to 61 percent today. And when faced with actually using the ultimate sanction, the country is increasingly squeamish.
The number of death sentences imposed by judges and juries has plummeted to record lows. Last year’s total was 78, according to the Washington, D.C.-based Death Penalty Information Center — down from a high of 315 in 1996, and the smallest annual total in decades. Only 43 inmates were executed last year, half the number of a decade ago. Meanwhile, Illinois became the fourth state in as many years to abolish executions, joining New Mexico, New Jersey, and New York.
But Americans aren’t abandoning the death penalty because of an upsurge in concern over taking killers’ lives. Thanks largely to DNA testing and other technological advances, an estimated 140 condemned men and women have been exonerated in recent years. Proof that the system can fail so badly has made juries, judges, prosecutors, and the public wary of
exacting the ultimate punishment.
Forty years ago, when the U.S. briefly abolished capital punishment, it was for very different reasons. Consider Robert Page Anderson. A small-time lowlife with a lengthy rap sheet, Anderson walked into a San Diego pawnshop one morning in 1965, picked out a rifle from the gun display, loaded it, and shot the store’s two clerks. One died instantly. When police cars pulled up in front of the store, Anderson grabbed a few more guns, barricaded the doors, and started blasting. What ensued was the biggest firefight ever on the streets of San Diego. In its course, a journalist dropped dead of a heart attack, Anderson wounded a cop, and then was shot by another.
A black man who shot a white cop and killed a storekeeper would, at most times in American history, have found himself on a fast trip to death row. But Anderson had the good fortune to have committed his crime when Americans were turning against the death penalty to an unprecedented extent.
In the late 1960s, with the injustices highlighted by the civil rights movement prominent in the public consciousness, polls found that more Americans opposed capital punishment than supported it. The NAACP and other groups were challenging the constitutionality of executions. Several states had banned the practice, and prominent politicians denounced it. Even the U.S. Attorney General called for its abolition. In a 1968 ruling, a Supreme Court justice dismissed death penalty advocates as a “dwindling minority.” That year, for the first time in the nation’s history, not a single prisoner was executed.
In 1972, Anderson’s case came before the California Supreme Court. There was no question about his guilt; what was in question was the morality of capital punishment itself. The court declared that, loathsome as his crime was, Anderson would not be executed, because execution was a “cruel and unusual” punishment that “degrades and dehumanizes all who participate in its processes.” By then almost every industrialized nation had scrapped the death penalty. “It is now, literally, an unusual punishment among civilized nations,” noted the state’s justices. More than 100 California inmates had their death sentences commuted to prison terms, including Anderson — who was subsequently paroled in 1976 after 11 years behind bars.
A few months later the U.S. Supreme Court struck down capital punishment. As part of that ruling, Justice Thurgood Marshall declared that if they were properly informed, “the great mass of citizens would conclude … that the death penalty is immoral and therefore unconstitutional.”
Only a few years later, however, the nation began an about-face. The U.S. didn’t just bring back the death penalty — it embraced it. In 1976, the Supreme Court declared that states could reinstitute capital punishment, as long as they updated their laws to eliminate the more egregious injustices. Dozens of states did just that.
Why the reversal? By the mid-1970s, much of middle America had grown deeply anxious about how society seemed to be unraveling. Drug use and crime were rising. Minorities, women, and homosexuals were demanding power and respect. In this milieu, politicians increasingly learned that crime could pay — for them. From federal candidates to county sheriffs, would-be officeholders began vying to out-tough each other on law-and-order issues.
Capital punishment became a litmus test of a candidate’s law-and-order bona fides. Michael Dukakis was slammed for opposing it in the 1988 presidential elections, and was trounced by George H.W. Bush, who advocated executing drug dealers. Then-Governor Bill Clinton took notice; in 1992, he made a point of leaving the campaign trail to return to Arkansas to personally sign an inmate’s death warrant. Shortly afterward, Newt Gingrich declared that the keys to building a conservative majority in the U.S. were “low taxes and the death penalty.”
By the 1990s, a record majority of Americans favored capital punishment. Courts were handing down hundreds of death sentences every year, and dozens of new crimes were being made capital offenses. By the start of the new millennium, the number of annual executions shot up to nearly 100.
Those years turned out to be the high-water mark of the resurgence. One exoneration after another began exposing how fallible the system is. “Although the dissatisfaction with capital punishment has many roots, the common and principal concern heard throughout the country is the risk that innocent people may be caught up with the guilty,” declared a 2007 Death Penalty Information Center study based on a poll of 1,000 adults. Even among death penalty supporters, nearly two-thirds are worried about that risk, a 2011 Rasmussen Reports poll found.
For capital punishment abolitionists, this is grounds for optimism. They hope the public’s growing concerns will lead to a complete ban, something 16 states have already enacted.
But the pendulum could just as easily swing the other way again. As DNA testing becomes more widespread, the number of wrongful convictions is likely to drop. That might bolster capital punishment’s advocates, who could claim the process has been perfected.
Unlike 40 years ago, Americans don’t object to executing criminals; they object to executing innocent people. Unless that changes, the death penalty seems certain to remain on the books — even if it is an increasing rarity in courtrooms.