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December 21, 2015

Astute review of factors killing the death penalty ... with a questionable final assessment

20151219_USD001_0The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out."  I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement.  First, here are extended excerpts along with the closing paragraph:

Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976.  A ghoulish web page lists the inmates admitted to Texas’s death row.  Only two arrived in 2015, down from 11 the previous year.

There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment.  Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped.  Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer.  Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.

The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong.  Fairly soon, someone will be the last person to be executed in America.  The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects.  So, whodunnit?  Who killed the death penalty?

Where politicians follow, voters often lead.  Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning.  Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....

The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences].  So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment.  Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....

Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute.  But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....

To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer.  Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....

Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry.  Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....

Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution).  Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls.  The death penalty’s coup de grace may come in the form of an empty vial.

Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all.  In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them).  He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.

Cue much lawyerly soothsaying about that prospect.  Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors.  Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania.  The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.)  These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.

Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions.  As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society.  In the final verdict, America’s death penalty has killed itself.

This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise.  But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States.  Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California.  Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.

Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US.  If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon.  But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."

It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence.  Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values.  And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.

December 21, 2015 at 12:37 PM | Permalink


Come the next major terror attack, which will be 100% the fault of the pro-criminal, pro-terrorist, pro-Muslim lawyer profession, all scores get settled with these internal traitors. People like the author better start running when that starts.

Posted by: Supremacy Claus | Dec 21, 2015 1:04:03 PM

Many of the DP contractions could be resolved if it was reserved for mass murderers or killers of two or more people (serial killers) tried in separate trials. Having just seen the superb new documentary released by Netflix, Making a Murderer, it must be added that at least one murder trial would have to be in a different jurisdiction or at least under a different DA. This would not resolve the greatest contradiction of the DP: executing because killing is wrong, but it would resolve:

1. Only reserved for the worst of the worst (killed more than once, which would neutralize the argument that murderers have the lowest recidivism rate).

2. Far less likely for an innocent to be convicted if convicted in two separate trials.

3. A repeat murderer would justify the cost and juries and victims would find it easier to accept the DP.

4. Neutralize the "nothing to lose" argument as applied to lifers.

5. More that one murder conviction would likely survive the courts easier because it would not be arbitrary at all.

6. It could still satisfy most pro-DPers and make it harder to argue against by abolitionists like me.

Posted by: George | Dec 21, 2015 1:58:18 PM

Hey! Many countries are living without the death penalty: even in Us.

Posted by: claudio giusti | Dec 21, 2015 4:26:56 PM

Nebraska has executed less than forty people in its history as a state. I don't think what happens in a plebiscite there makes or breaks anything. The vote in CA is somewhat more important but the President is the most important. The rate as a whole depends on a limited number of states now & yes CA is one in respect to its non-action. Even if it starts executions, doubtful if even there it will be more than a trickle.

The people do have a role here -- they keep on electing people who continues to allow the current situation to be in place including the move upheld in PA by a popularly elected governor. They also continue on juries to only sentence a limited number of murderers to die and elect those who only allow a subset of murders to be death eligible. This means the people as a whole are okay with murderers not being executed. They don't want NO one executed & some blatant cases are deemed to deserve it (though even there, the people over and over again are concerned with how it is applied).

But, vitriol against letting murderers off "easy" (prison), the people -- not just elites -- as a whole are okay with most murderers not being executed. And, over and over again are upset about how the rest are handled in individual cases. Of course, we do not simply have a "democracy," but a constitutional republic, so what some majority wants alone isn't all that matters.

Anyway this chart provides a long term look at the rate:


There was a small spike in 2009 and then a decrease each year until 2015 (stayed the same in one two year period). There are a bit less than 3000 people on death row. The rate in recent years can be continued into the future with those numbers. Texas has 265 people on death row, for instance. Anyway, looking at the numbers, I think "the end is near" might be overly optimistic (pessimistic) as is sometimes the case with such things.

Posted by: Joe | Dec 21, 2015 5:38:30 PM

Saint Peter is a DP detractor. When you get your interview at the Pearly Gates he will have some questions. If you have participated in the killing of a human you have violated the Sixth Commandment. You might be more implicated if you are a prosecutor, judge or juror. But being a citizen of Texas qualifies you for a sentence to Hell. Be there or be square. Ain't no exception to the Sixth Commandment called the Y'all can exception.

Posted by: Liberty1st | Dec 21, 2015 5:53:58 PM

Robert Loggia played St. Peter & recently moved on from this earth. I wonder if he can check in with Pete and determine what he thinks about the subject.

Posted by: Joe | Dec 21, 2015 6:32:23 PM

Lib. Saint Peter's opinion would be biased. I would ask that he recuse himself. He was dispatched by crucifixion in an upside down position, making it less likely he would die by the suffocation that mercifully results from crucifixion in the upright position.

He was also falsely convicted for the fire that destroyed Rome. It was started by government incompetent and rent seeker, Nero.

If he fails to recuse himself for personal involvement and bias, I believe he would approve of the very gentle execution by poison. I feel free to read the minds of the dead. The Supreme Court does it all the time when they assess the legislative intent of long dead law makers.

Posted by: Supremacy Claus | Dec 21, 2015 8:02:33 PM

"Of course, we do not simply have a 'democracy,' but a constitutional republic, so what some majority wants alone isn't all that matters."

Vapidity and triteness. A recurring theme. Of course, the majority doesn't get what it wants---but that obscures the issue with the death penalty and the democratic process. The death penalty is unquestionably legal, and it is thwarted by activist judges and others. Joe touts a 'rat governor imposing a moratorium---but if laws are so easily upset by demagogic politicians, then the rule of law foundation begins to crumble. Imagine the howls of outrage if the shoe were on the other foot? Remember all the feigned outrage over the "unitary executive"?

It's amazing what libs will do to the rule of law to benefit some heinous criminals. And on top of that--I wonder what Trista Eng's family thinks of that 'rat Wolf. Joe, of course, doesn't care.

Posted by: federalist | Dec 21, 2015 9:12:56 PM

I explained how the democratic process had led to the death penalty being applied quite narrowly & the judges, governors etc. being railed at here were chosen directly or indirectly by the democratic process. Their behavior isn't new but darn the people keep on picking those who do this sort of thing.

The rule of law was upheld in the case cited -- the court held that the governor, by law, had the power to do it. Some might not like this on policy grounds, but that is not the same as it being against the rule of law.

As to a family being upset, families have been upset the other way too -- they didn't want the death penalty applied, but the governor allowed it anyhow. Families (at least my own) also are split over such questions. When Scalia and other conservatives overturn convictions families might be upset too. But, it isn't that they don't "care."

Finally, "life" can only be deprived by "due process of law," following various procedural requirements, without "cruel and unusual punishments" being inflicted using equal protection of the law etc. How the death penalty as applied meets all these requirements continues to be "questioned" by a range of people, both Democrats and Republicans (see Nebraska) including judges appointed by both groups (such as Republicans picked by Ike, Nixon, Ford et. al. and various Republican governors).

Trite and vapid this all might be, but seems it just might be needed to be repeated now and then. BTW, the upside down crucifixion of Peter probably is a myth, only cited much later in a non-biblical gospel.

Posted by: Joe | Dec 21, 2015 10:08:53 PM

Joe. Thank you for your clarification about the execution of St. Peter. Take it easy. Religion is a myth. The legal system is an extension, and it is mostly mythical too. So, getting into an argument about myths is, well, what is going on around here.

Here is something real. The lawyer profession allows 20 million FBI Index felonies, and the execution of thousands of innocent people a year, after year, with a five fold burden of risk carried by black people. White people and lawyers can then have government make work jobs, and maintain the real estate value of suburban homes. That little $trillion racket and hit to the economy is not myth.

What are you, of French origin? Stop supporting false and mythical made up procedures that kill people. Then you falsely characterize a lawyer scam, to generate $billions in a racketeering appellate business as democratic procedure. No, it's a lawyer racket. The public wants the hanging to take place at the end of the trial.

Posted by: Supremacy Claus | Dec 22, 2015 8:41:55 AM

Ah, a "very gentle execution by poison". A very quick handbasket to Hell. That is what you get when you violate the Sixth Commandment: Thou Shalt Not Kill!
It is ok for you folks to believe that apCray about "a very gentle execution by poison". But when your time comes, all else will fail.

Posted by: Liberty1st | Dec 22, 2015 8:57:21 AM

Religion is a range of things, including things that involve historical events like the probable existence of Peter. The nature of myths are useful to understand either way. Plus, arguments about myths are at times arguments about basic American beliefs.

Posted by: Joe | Dec 22, 2015 12:04:49 PM

Lib. For the hundredth time, the Six Commandment sates, Thou shalt not murder. Murder is an unlawful homicide. Read Genesis. These Palestinian pigs kill every living entity down to the last kitten in the villages of their enemies. You are talking about the mentality of Hezbollah, and nothing has changed in that world for the past 3000 years.

You keep repeating yourself.

Posted by: Supremacy Claus | Dec 22, 2015 11:05:02 PM

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