Support drops for death penalty

The death penalty may be on life support in America. For the first time since the early 1970s (according to a recent “Pew Survey”), public support for it has dropped below 50% and opposition has risen to 42%. This is a trend that has been going on for the last couple of decades.

In parallel with this shift in public support, the actual use of the death penalty has also been declining. For example nationwide, in 2015, there were only 49 death sentences, which is the lowest since the Supreme Court reinstated the death penalty in 1976. Furthermore, according to a report issued by the “Fair Punishment Project” at Harvard Law School, just a small subset of counties are responsible for the vast majority of these death sentences. The Project report found three characteristics for these counties – prosecutors relishing in wielding the death penalty, poor legal representation, and racial bias.

Even in these pro-death penalty counties, though, the movement in polling data has been mirrored at the ballot box. Although maybe a small sample, in recent prosecutorial elections in Duval County, Florida, and Caddo Parish, Louisiana, the death penalty was an election issue. These two (2) pro-death penalty incumbents lost in their re-election bids. Somewhat shocking since the approval of the death penalty was at 80% only 20 years ago.

The statutory fundamentals of the death penalty are also under attack. In Florida, the state Supreme Court ruled that its death penalty construct, permitting for non-unanimous verdicts, was unconstitutional. The United States Supreme Court has nibbled at the edges of the death penalty by prohibiting its use for juveniles and the mentally deficient. While the Supreme Court has not broadened that thought to the mechanics fo the death penalty, several current justices seem to be leaning in that direction.

What drives these changes? There could be a host of reasons. First, the expense and the length of litigation about the death penalty assures that justice is neither swift nor financially efficient. A small county committing itself to a death penalty prosecution is taxed with litigation costs that can be oppressive. And, while there is an argument that the length of resolution has a taint of unfairness for the accused, the people who really pay the price of deferred justice is the family of the victim.

Second, there is the messiness of death penalty litigation. As noted in the Pew Study, a small subset of particularly zealous prosecutor’s office seem to pursue death penalty cases. The zealotry often crosses the line into fairness, be it an exclusionary jury selection process, refusing to turn over exculpatory evidence, or wearing a blind eye when it comes to considering alternative theories of how a murder occurred.

Innocence Projects have been created to expose tainted convictions. In a national database been assembled through the joint work of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law 2,000 plus wrongful convictions were of overturned convictions since 1989, involving just a few states.

Of these 2,000+ cases, nearly 1,170 cases that were not included because they were the result of 13 major police scandals. This left 873 cases with detailed information of the wrongfully convicted; combined, the convicted served more than 10,000 years in prison. Think about this for a moment; they averaged 11.46 years behind bars and 101 involved death sentences.

What this teaches us is that the criminal justice is imperfect; what it teaches me, personally, is that the idea of the death penalty gives me pause. The more I hear about these injustices, the more I question if State-sanctioned murder is still a valid goal for the legal system, especially given how it burdens the system. Maybe some of you feel the same … I just don’t know anymore. Polling data seems to suggest that he general public is awakening to the idea of biased justice and turning everyone off of using the death penalty as a sentencing tool.

Finally, there is the execution of the “execution.” Medicinal cocktails have become the norm in the United States in carrying out death sentences. However, drug companies are abhorred at their drugs being used to judicially kill. They have refused to sell to states seeking to use a drug as a cocktail mixture. This has left justice systems “begging” for medicinal expedients to carry out sentences – sometimes with horrific results, such as delayed, death, unusual suffering, or even incomplete deaths.

It is not clear exactly what this all means going forward. But, the signs are clear – it may not be too long before the death penalty once again becomes unconstitutional in America. Which may not be a bad development.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions

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