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Capital Punishment in the United States Explained

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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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U.S.: Why plummeting public support for the death penalty doesn't mean it's going away

Texas' death chamber
Support for the death penalty is at a 4-decade low among the American public, but that may be of little consequence in the struggle over the future of capital punishment. That's because the death penalty is the practice not of the nation, but rather of a handful of states.

The federal government is a minor player in criminal justice, housing just 1 in 8 inmates. The federal government executed 2 prisoners on the same day in 1957, but implemented capital punishment only four times in the 60 years since. It's states that charge and sentence almost all the individuals who commit the crimes that lead to capital sentences (e.g., murder). And, more specifically, it's just 5 of those states that are the true force behind capital punishment, accounting for 90 % of the 122 executions carried out in the past 3 years.

Texas stands out for its particularly outsized role, accounting for over 1/3 of capital punishment. Florida, Georgia and Missouri each account for about 1 in 7 executions, and Oklahoma accounts for about 1 in 12. The other 45 states collectively account for only 10 % of prisoner executions, even though the law in 30 of those states allows capital punishment.

Rather than ask "why does the United States have capital punishment," it makes more sense to ask why these particular 5 states apply it so often. Obviously, all are politically conservative states within or bordering the South. But this is also true of Louisiana, Mississippi, South Carolina, North Carolina and Tennessee, none of which has put a prisoner to death in recent years (indeed, Louisiana came close to abolishing the death penalty in this year's legislative cycle.)

Stanford Law School Professor Robert Weisberg points to state-specific processes and incentives as drivers of the death penalty in a subset of conservative states. Most notably, he says, "Texas has elected judges. It is also located in the prosecutor-friendly 5th Circuit Federal Court of Appeals. Although the Supreme Court occasionally slaps down the Texas Court of Criminal Appeals and its federal accomplice, the Fifth Circuit, for allowing egregiously unfair capital trials, on the whole those lower courts have been happy to give Texas prosecutors a generously wide berth."

Most states have abandoned the death penalty de jure or de facto. But in the absence of change in the handful of states that combine punitive views on crime with legal processes that facilitate capital punishment, the practice will remain a part of the criminal justice system.

Source: The Washington Post, Opinion, June 21, 2017. Keith Humphreys is a Professor of Psychiatry at Stanford University and is an affiliated faculty member at Stanford Law School and the Stanford Neurosciences Institute.

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