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January 1, 2009

What might 2009 have in store for . . . the death penalty in the US?

Though I lament that the death penalty gets so much attention from the courts, pundits and policy groups, I find fascinating that the politics and practicalities of the death penalty are so unpredictable.  Sure, we can be confident that Texas will lead the way in executions and that there will be one or more death sentences handed out in the average week.  But we can never be sure of the outcome of particular cases (e.g., in 2008, the Atlanta courthouse killer dodged a death sentence), nor can we confidently predict how critical "swing" jurisdictions like California and the feds will actually administer its capital punishment system.

In this late 2007 post, I asked for 2008 capital punishment predictions.  Commentors had a mixed record of success, and the various comments provide a reminder that, at this time last year, the Baze lethal injection de facto execution moratorium was in place, and the Supreme Court had not yet even taken up the Kennedy child rape case.  Singificantly (and, in my view, joyfully), the Supreme Court does not have any major capital cases on its docket right now, and I am not aware of any big cases in the pipeline.  After a very eventful 2008, the Supreme Court's impact on capital punishment in 2009 is unlikely to be consequential.

With the Supreme Court mostly mute, the practical story of the death penaltywill be shaped state-by-state  in 2009 by front-level participants and by lower court rulings.  The DPIC notes here that "23 executions [are already] scheduled for the first five months of 2009, and more dates are likely to be added; ... almost all the executions scheduled are in the south and about half (12 of 23) are in Texas."  I suspect 2009 will see more than the 37 executions of 2008, but I doubt we will approach the roughly 75 executions that had become the yearly average not too long ago.

Legislatively, Maryland in 2009 could become the second state (after New Jersey) to abolish its death penalty legislatively int he modern ear.  And tough financial times will likely continue the national trend away from this always costly and often inefficient ultimate punishment.  (StandDown Texas here has a nice review of some state-specific year-end capital coverage.)  Though I doubt any other states will formally abolish capital punishment, the de facto decline in death sentences sought and obtained by prosecutors ought to continue.

The highly unpredictable wild-card for the the death penalty in 2009 concerns federal dynamics and involvement.  As I explained in this post, IPresident Clinton's vocal support for the death penalty and President Bush's relative disengagement with these matters (despite his long-standing support for this punishment) may partially explains why there was an uptick in death sentences and executions through the 1990s and then a steady downward trend thereafter.  (Of course, the emergence of wrongful convictions as a salient political issue in capital punishment debates was also a big part of this story.)

As of this writing, I have little sense of President-elect Obama's concerns or commitments regarding the death penalty.  (This past summer, he made the politically shrewd decision to speak out against the Supreme Court's Kennedy decision prohibiting capital child rape prosecutions.  But I tend to attribute his statements to a desire to keep hot-button crime-and-punishment issues out of the 2008 campaign.)  Attorney Genereal nominee Eric Holder's current perspectives on the death penalty are also opaque.  Moreover, as demonstrated by this new story at Politico, which is headlined "Burris sought death for innocent man," one never can predict from where the next capital punishment story will emerge.

Some recent related posts:

UPDATE:  I see now that the Los Angeles Times has this new article about the death penalty in 2008, which includes this astute comments from the DPIC's Richard Deiter:  

The economic realities of cash-strapped state and local governments have undermined capital punishment where moral and legal arguments have failed, said Richard Dieter, a Catholic University law professor and director of the center. "I don't know that it will change public opinion, but the practical effects of the economy are just that -- if you're a politician and you have to cut something, do you want fewer police officers on the streets . . . or do you cut one death penalty and save a few million dollars?" Dieter said. "At a time when states are cutting back on teachers, police officers, healthcare, infrastructure and other vital services, citizens are increasingly concerned that the death penalty is not the best use of their limited resources."

January 1, 2009 at 03:13 PM | Permalink


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You "love that the politics and practicality of the death penalty are so unpredictable"?

How sad, Professor Berman, that you regularly display your lack of any real understanding about the humanity - or lack thereof - involved in this practice.

And how frightening that some of those - like you - who are most influential in the debate over capital punishment apparently consider it to be some sort of game.

Scott Taylor

Posted by: | Jan 1, 2009 4:07:29 PM

Fair point, Scott, about my callous use of the word "love" in the first version of this post. I have now changed the wording. Thanks for the catch.

That said, I find it sad that many DP opponents regularly display a lack of any real understanding for opposing views about the humanity of the death penalty. As I have explained in some recent scholarship, I genuinely think we can and often do show respect for humanity when we respond to a brutal killer with an elaborate legal process that respects life even as we collectively try to decide if the killer should pay the ultimate price for his crime.

I understand the policy view of being against capital punishment, but I never understand the justification for the "hollier than thou" attitude that you display here. The death penalty is not a game, but neither is it a policy issue of greater moral consequence than the many other policy issues --- like warfare and health care and speed limits --- in which human lives hang in the balance. Indeed, over the past 30+ years, fewer persons have been executed in the US than will die in car accidents in the US over the next two weeks. Should I accuse you of you displaying a lack of any real understanding about the humanity - or lack thereof - involved in car travel? Should I find frightening that some of those - like you - who claim to be concerned about humanity apparently care more about brutal killers than the many innocent persons who are killed in car accidents?

Oh, the humanity!

Posted by: Douglas A. Berman | Jan 1, 2009 8:05:08 PM

The concept of humanity is not about a choice of evils. It is about our conscious attitudes and decisions concerning our treatment and understanding of fellow human beings. Those who recognize the inhumanity of capital punishment have no lessor concern for those killed or injured in road accidents, or who are sentenced to ridiculously long sentences for possession of a few grains of crack.
The immorality of capital punishment is that it mirrors exactly the evil act for which an accused has been found guilty - the taking of life. The process involved in a State making the decision to take a life, however convoluted and lengthy, and thorough and transparent, is known to be arbitrary, involve bias, rely on jury perception, be subject to political influence, and may in fact follow false "expert" testimony, junk science, absence of accurate dna analysis, inaccurate eyewitness identification, poor defense representation, etc, etc. The immorality of road deaths is the unwillingness of private individuals to forgo car travel in favor of public transport, or make fewer trips, so increasing the volume of traffic and thereby increasing the likelihood of accidents, and the reluctance of public officials to adopt policies that may make roads safer and force car manufacturers to produce safer vehicles, for reasons of personal popularity or political dogma. While both involve a judgment of morality, the first is a very simple but stark matter affectingly a relatively few people, but which defines our nation's concept of humanity; while the second affects the majority lifestyle, is therefore more difficult to resolve, and is inherent to the use of technological progress of modern economies.
Your use of the phrase "... like you ... who claim to be concerned about humanity, apparently care more about brutal killers than the many innocent persons who are killed in car accidents?" is wide off the mark, both of truth and of understanding.

Posted by: Peter Bellamy | Jan 2, 2009 4:21:50 AM

Nicely stated, Peter, though you keep wanting to look past the fact that the death penalty in the US is right now only applicable to brutal killers. That's why, despite all the problems you cite with the administration of capital punishment (which I do not dispute), I think it is fair for DP supporters to assert that the punishment of death RESPECTS the humanity of the victim of a brutal killer --- and the killer himself, given that we give him lots of opportunities to argue his life should be spared) in a way no other punishment or process could.

Indeed, this is the core concern I have with much anti-DP debate/rhetoric --- namely the failure for abolitionists to come to terms with the reality that they are essentially working to ensure that a few more brutal killers die only of natural causes in prison. Once one sees and reflects on this "truth" about the modern anti-DP movement, then one can have a better understanding for why many people may sincerely believe our society respects humanity MORE with the DP than without it.

So you understand my point, I share you judgment that even brutal killers have a humanity that deserves repect in our society. And, even with the DP on the books, we show that respect by (1) having society give him a lawyer, (2) ensuring lots of process and lots and lots of appeals even when guilt is not in doubt, and (3) seeking a painless execution process. At the same time, we show respect to the victim of the brutal killer (and also other potential future victims) by being willing to consider imposing the ultimate punishment.

There is, of course, many grounds to debate whether having or getting rid of the DP shows the best respect for humanity. And, within a democracy, we generally leave this choice to the elected branches. And, for the sake of an egffective democracy, it is useful for folks on both sides of the debate to understand the perspective of opponents. That's primarily why I run this blog and work so hard to ensure all perspectives get a fair airing (while also not be afraid to try to clarify and defend my own perspective).

Posted by: Douglas A. Berman | Jan 2, 2009 8:34:20 AM

Doug, I think your lament about capital punishment (i.e., that it takes up a lot of attention) reflects its "sexiness". For whatever reason, people get really worked up about what I consider unremarkable--you deliberately take someone's life (or commit an act that poses a high risk of death and actually cause death--i.e., death eligible felony murder) and you just might have to pay with your life for that crime. Personally, I would have no issue with the presumptive penalty for murder being death and the attendant number of executions per year.

In my view, the number of abortions on viable fetuses says a whole lot more about our humanity as a society than the execution of even 1000 killers per year. Additionally, what of the thousands of people killed by violent felons who (except in the minds of liberals) should have been put away prior to the final act of murder? A victim killed by a criminal with a violent past that would easily justify lifetime incarceration (or incarceration until he is an old man) is a distressingly familiar problem in our society, but people like Scott Taylor, who will lament our barbarism for executing criminals, say nothing about foisting violent criminals upon our society. Let's take one example--the murder of Jennifer Hudson's family members. The man accused of the killings served a scant seven years for attempted murder and carjacking. And now three people are dead. And this is not a rare occurrence by any stretch of the imagination, and it certainly causes more than 98 deaths per year (98 being the most executions in any one year since capital punishment was reinstated). But the Scott Taylors of the world are mute about these outrages, preferring to get worked up about people like Richard Cooey and his fate.

I'll even agree with Doug on his point about drunk driving. The lenience shown to many many many dangerous repeat drunk drivers in our country says more about our humanity than capital punishment.

Posted by: federalist | Jan 2, 2009 10:43:07 AM

"And, for the sake of an egffective democracy, it is useful for folks on both sides of the debate to understand the perspective of opponents. That's primarily why I run this blog and work so hard to ensure all perspectives get a fair airing (while also not be afraid to try to clarify and defend my own perspective).


as a member of ai and as an abolitionist I totally agree with you and I'm glad that you run your blog.



Posted by: Joachim | Jan 2, 2009 5:22:23 PM

I have to say, I dont know if its the clashing colours or the bad grammar, but this blog is hideous!

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