The Road to Abolition?

The Future of Capital Punishment in the United States

Charles J. Ogletree, Jr., Austin Sarat

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814762240
• Topic: Derecho
• Subtopic: Ética y responsabilidad profesional en el derecho

At the start of the twenty-first century, America is in the midst of a profound national reconsideration of the death penalty. There has been a dramatic decline in the number of people being sentenced to death as well as executed, exonerations have become common, and the number of states abolishing the death penalty is on the rise. The essays featured in The Road to Abolition? track this shift in attitudes toward capital punishment, and consider whether or not the death penalty will ever be abolished in America.

The interdisciplinary group of experts gathered by Charles J. Ogletree Jr., and Austin Sarat ask and attempt to answer the hard questions that need to be addressed if the death penalty is to be abolished. Will the death penalty end only to be replaced with life in prison without parole? Will life without the possibility of parole become, in essence, the new death penalty? For abolitionists, might that be a pyrrhic victory? The contributors discuss how the death penalty might be abolished, with particular emphasis on the current debate over lethal injection as a case study on why and how the elimination of certain forms of execution might provide a model for the larger abolition of the death penalty.

Part I
Assessing the Prospects for Abolition

1
The Executioner’s Waning Defenses

Michael L. Radelet

Hugo Adam Bedau, my mentor, friend, and hero, turned 82 years old in 2008. I began research on capital punishment in 1979, when I was 28. If I am lucky enough to live as long as Hugo already has, I will have a 54-year career of death penalty work. Consequently, this essay is (more or less) my midway report and reflection on where we are on the road to abolition. My guess is that when I turn Hugo’s age in 2032, the only scholars writing about “The Death Penalty in America”¹ will be historians.

How can that optimism be justified? After all, in the 31-year span encompassing 1977–2007 there were 1,099 executions in the United States. By May 2008, the death penalty was authorized by the federal government and by 36 states,² and there were some 3,400 inmates queued up to receive the executioners’ services. On the other hand, if we step back from the trees and look at the forest, there can be absolutely no doubt that there has been dramatic progress toward worldwide abolition of the death penalty over the past three centuries and especially the past three decades. In July 1976, the U.S. Supreme Court decided Gregg v. Georgia and several companion cases,³ thereby reinstituting the death penalty in the United States. At the time of Gregg, only 16 countries from around the world had abolished the death penalty. By May 2008, that figure stood at 92 countries that had total abolition and 137 countries that had abolished capital punishment in law or in practice.⁴ In December 2007, the United Nations General Assembly called for a worldwide moratorium on the death penalty with a view toward abolishing executions. The vote was overwhelming: 104 of the U.N.’s member states supported the resolution, while only 54 opposed it and 29 abstained.⁵

The worldwide movement toward abolition is also occurring in the United States. For example, we all know about the commutation of 167 death sentences by former Illinois Governor George Ryan in 2003.⁶ The day before the U.N.’s 2007 resolution, New Jersey Governor Jon S. Corzine signed a bill repealing New Jersey’s death penalty, making New Jersey the first state to abolish the death penalty by legislative action and gubernatorial support since Iowa and West Virginia did so in 1965.⁷ Just in the past 10 years, public support for the death penalty and the number of new death sentences has fallen, indisputable victories for death penalty opponents.⁸

These developments clearly show that those who oppose the death penalty are scoring significant victories that would have been unimaginable just a short time ago.⁹ Furthermore, in addition to the above easily visible victories for abolitionists, more subtle changes are occurring that are more difficult to quantify, but in the long run they may be more long-lasting and important. Specifically, there have been dramatic changes in death penalty discourse that have taken place since the mid-1970s. Since Gregg, the ways in which Americans talk about and debate capital punishment have changed dramatically, and many of these changes resulted from important and irreversible victories by death penalty opponents. In the long run, these gradual changes in discourse are the key factors that are reducing the number of death sentences and increasing the social acceptance of citizens, jurors, and politicians who express discomfort with executions. It is no longer impolite to oppose the death penalty. In fact, there seems to be a national reconsideration of capital punishment, with proponents of executions increasingly on the defense.

In this essay, I share some thoughts on where we are on the road to abolishing the death penalty in America, how we have gotten there, and what battles lay ahead as we move further along the road. I do this by comparing justifications for the death penalty that were advanced at the time of Furman and Gregg with justifications used by friends of the executioner today. I argue that several pro-death penalty arguments of a generation ago have been discredited by empirical research. Included in this outdated list of claims are those that attempted to justify death on the basis of deterrence, cost savings, and the death penalty’s supremacy of incapacitation. Similarly, the claims from death penalty supporters that the punishment could be applied equitably, without racial bias, and only to the guilty have been thoroughly discredited by empirical research. Even the most venerable pretext for the death penalty, retribution, changed dramatically by the end of the twentieth century, gradually shifting from a religious base (lex talionis) in the 1970s to an unadulterated version of vengeance in the late 1980s (“we want these folks to suffer because they deserve it”) to a more utilitarian version today (“they need to suffer because it helps families of the victims”). I argue here that this latter incarnation of retributive thought, based primarily on the purported needs of families of homicide victims, will be unable to withstand empirical scrutiny over the next few years, leaving the executioner’s tree with even fewer roots to hold it up.

Changes in Death Penalty Discourse

Public opinion polls on capital punishment are horribly misleading. The most frequently cited question simply asks if respondents favor the death penalty. In the abstract, answers to this question tell us nothing; it is a bit like asking people if they favor lower taxes, more ethics in government, or greater peace on earth. People may favor it only for Saddam Hussein, or only for anomalies like John Wayne Gacy or Timothy McVeigh, but not for the more typical scapegoats who find their way to the gurney. More commonly, respondents may oppose the death penalty given an option of natural death in prison. They may favor the death penalty in theory, but not with the arbitrariness, racial bias, and error that invariably accompanies it. Most importantly for today’s arguments, we have no idea whether people would rather see millions of dollars invested in executions or spent on more direct and widespread efforts that can give some aid to families of homicide victims.¹⁰

Nonetheless, it is clear from polls that Americans are gradually and steadily moving away from executions, with more now favoring life-without-parole than the death penalty.¹¹ They are being joined by a growing number of political leaders who are also speaking out against the death penalty, or at least not exploiting the issue as a way to attract votes. In the early 1990s, New York Governor Mario Cuomo was all but alone among America’s political elite in speaking out against the death penalty, a stand that helped defeat him at the polls in 1994. One of the turning points of the 1988 presidential election came in a debate when candidate Michael Dukakis badly fumbled a question on the death penalty.¹² Future president Bill Clinton was involved in that campaign and explained the past and future of politics to Susan Estrich, Dukakis’s campaign manager, by taking out a sheet of paper and listing on it governors who supported and opposed the death penalty.¹³ Running for president in 1992, Clinton left the New Hampshire campaign trail to return to Little Rock so he could preside over the execution of Ricky Rector, a severely brain-damaged prisoner.¹⁴ By 2008, a list of “key issues” for presidential candidates included abortion, education, taxes, gun control, and a half-dozen other items, but capital punishment was a non-issue.¹⁵ Indeed, instead of ordering the execution of a prisoner, Clinton’s successor as governor of Arkansas, Mike Huckabee, while on the presidential campaign trail in Iowa, went hunting for pheasants.¹⁶

Erosion of Popular Death Penalty Arguments

DETERRENCE

In the mid-twentieth century and up through the time of the Furman decision in 1972, the top argument in favor of the death penalty was general deterrence.¹⁷ However, this argument has never won much support from criminologists.¹⁸ As Ruth Peterson and William Bailey concluded in their review of deterrence scholarship, “the evidence against capital punishment as an effective deterrent is extensive and cannot be dismissed as resulting from theoretical or methodological weaknesses.”¹⁹ In his review of relevant literature prepared for the United Nations, one of the world’s leading criminologists, Roger Hood, concludes that the problems in deterrence studies “should lead any dispassionate analyst to conclude … that it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment.”²⁰ In November 1989, in part because “social science research has found no consistent evidence of crime deterrence through execution,” the American Society of Criminology passed a resolution condemning the death penalty, one of only two public policy positions the organization has ever taken.²¹ In 1996, Michael Radelet and Ronald Akers surveyed 70 leading American criminologists and asked their opinion about the empirical research on deterrence; they found that 85 percent of the experts agreed that the death penalty never has been, is not, and never could be superior to long prison sentences as a deterrent to criminal violence.²² Similarly, a 1995 national survey of nearly 400 police chiefs and county sheriffs found that two-thirds did not believe the death penalty significantly lowered the number of murders.²³

Of course, this does not mean that there are not significant pockets of death penalty supporters today who still claim to rest their position on the deterrence argument. Peterson and Bailey, for example, cite numerous examples of how deterrence has been mentioned as a justification for the death penalty in recent years by members of the Supreme Court.²⁴ In addition, several well-publicized econometric studies have been published since 2000 that purport to find a deterrent effect from executions, and these studies will no doubt be cited in the next few years by those who advocate the deterrence justification.²⁵ While preliminary analyses of these works has found that they suffer from abundant flaws,²⁶ and few (if any) attorneys or politicians have the ability to understand the complex mathematical models, their impact on public opinion remains to be seen. In the end, it could be that deterrence will remain as a “polite” argument for death penalty supporters—it is far more acceptable to tell friends that we support the death penalty only because we want to reduce homicide rates than it is to express our support on the grounds that we thoroughly hate the killers and want them to suffer and squirm far more than they would if they were “only” sentenced to life imprisonment without parole.

In the end, while some remnants of the deterrence argument remain, it is clear that the general public’s support for the idea that the death penalty is a deterrent to murder had dropped precipitously by the end of the twentieth century. In a 1985 Gallup Poll, 62 percent of the respondents answered “yes” to the question “Do you feel that the death penalty acts as a deterrent to the commitment of murder, that it lowers the murder rate, or not?”²⁷ This fell to 35 percent in 2004, when the question was last asked. Conversely, the proportion of respondents who stated that the death penalty was not a deterrent doubled over the time period, from 31 to 62 percent.²⁸ This is a clear victory for death penalty opponents: what was once the executioner’s top defense has all but evaporated.

INCAPACITATION

A generation ago, one of the strongest arguments in support of the death penalty was that those convicted of murder would be released from prison after serving a relatively short sentence and return to our communities where they would constitute a danger. According to this view, we need the death penalty to protect the public from recidivist m...