Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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US justice: The last days for death row?

Death row cell, San Quentin prison, California
Death row cell, San Quentin prison, California
Voters in California will decide to abolish capital punishment or put in place measures to allow more killings

As the only fully westernised country to use capital punishment, the US is a glaring outlier in the developed world. Seen from elsewhere — particularly Europe — it is jarring that a country which wants to be seen as a standard bearer for human rights still puts prisoners to death.

Executions have been in decline across the country. Since 1999, when the number peaked at 98, the highest since the death penalty was reinstated in 1976, they have fallen steadily. The figure was 28 last year, the lowest in more than two decades. The number of death sentences handed down has dropped even more precipitously, from a peak of 315 in 1996 to 49 in 2015, as prosecutors reacted to a change in public mood.

Waning confidence in the infallibility of prosecutions has been a significant factor in a string of repeals. Illinois abolished the death penalty five years ago after discovering 13 mistaken convictions. Six other states have abolished the death penalty in the past nine years, including New York and New Jersey, bringing the total to 19. Executions are on hold in nine others, and Washington DC has also abolished the practice.

Public opinion has swung steadily against capital punishment over two decades, according to the Pew Research Center, with the proportion supporting the ultimate sanction dropping below half in a survey published in September.

But as Californians decide whether to sign their own death warrant for capital punishment, two other states face a different choice. After Nebraska’s legislature voted for repeal last year, a proposal to reinstate the death penalty will be on the state’s ballot. In Oklahoma, voters are being asked to enshrine the death penalty in the state’s constitution, which would make it harder for those campaigning for abolition.

Advocates of abolition rely heavily on two strong impulses. One is moral revulsion. Pope Francis helped bring the issue to national attention on a visit to the US last year when he called on Congress to end the practice. And during the presidential primaries, Democratic candidate Bernie Sanders took a rare stance for a US politician, urging the US “to join almost every other westernised country on earth” in ending capital punishment.

Fear of executing the innocent also provokes a visceral response. Four per cent of those facing the death penalty have had their convictions overturned — enough to worry many people that innocent people might have been among the more than 1,400 executed in the US since 1976.

These considerations tend to sway about 40 per cent of voters who can be counted on for a solid base of support for repeal in the US, says Matt Cherry, head of Death Penalty Focus, a group pushing for abolition. But, alone, they are not enough to swing the argument.

If the tide is turning, it is for other reasons. The case being made in California is typical of the new opposition to capital punishment in the US: that the system is too expensive and it fails to achieve what it is meant to do.

Across the country, concerns about the number of prisoners on death row, the fairness of convictions and the adequacy of execution procedures have prompted misgivings about capital punishment. But California, with the biggest death row population by far — roughly a quarter of America’s death row inhabitants are in the Golden State — is facing this crisis more acutely than most.

According to a state estimate, the death penalty costs Californians $150m a year more than they would pay if the same prisoners were given life without parole. Yet there is still too little money to expedite cases: fewer than 100 lawyers are available to handle habeas corpus defences, a shortage that adds to the length of appeals by killers like Davis.

Kirk Bloodsworth, who was convicted of murder in Maryland in 1985, only to be exonerated on DNA evidence eight years later, says of California’s attempt to remove roadblocks to executions: “If it was enacted in the state of Maryland, I’d be dead.”

“The criminal justice system is filled with problems,” says Mr Bloodsworth. “You can’t kill your way out of this, you have to try something different.”

When it comes to capital punishment, one sign of the unfairness highlighted by many critics is the extreme concentration of death penalty convictions in a small number of jurisdictions. Of more than 3,000 counties in the US, only 16 imposed at least five death sentences between 2010-15, according to Harvard Law School’s Fair Punishment Project. California is home to five of the 10 counties that have sent the most convicted prisoners to death row.

In a study of all California’s death penalty convictions in the 1990s, published in the Santa Clara Law Review more than a decade ago, it was the race of the victim, more than the killer, that determined whether the ultimate penalty was applied. Killing a non-Latino white person was four times more likely to bring a sentence of death than if the victim was Latino, and three times more likely than if the victim was black.

Whether or not California abandons the death penalty is now down to white moderate conservatives, says Mr Cherry. These are the swing voters who will make the difference, part of an ageing middle class in the southern Californian suburbs of Orange County and east of Los Angeles. “They support the death penalty in principle, but are open to changing their minds,” he says.

California has long been known as a place where national social trends first become apparent. It has not been at the forefront when it comes to the repeal of capital punishment. But if voters back Proposition 62 next week, it may be the barometer that indicates an American swing away from capital punishment has become irreversible.

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Source: The Financial Times, Richard Waters, October 31, 2016

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