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October 3, 2017

"What’s Behind the Decline in the Death Penalty?"

The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."  Here is how the Q&A gets set up, along with the concluding Qs and As:

There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....

If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts?  What happens if there is a return to the murder rates of the 1980s?

The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline.  If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches.  But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime.  We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences.  Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences."  How do you resolve that tension?  What do you think opponents of long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report.  I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out.  For decades, he filed habeas petitions himself and wrote letters.  After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America.  We have replaced the death penalty with the “other death penalty.”  Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory.  To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.

October 3, 2017 at 10:03 AM | Permalink


Ask the Supreme Court. They fine tuned the death penalty maintain lawyer jobs but not to hurt anyone.

Prof. Garrett should spend a night rooming with felon sentenced to life in prison.

Posted by: David Behar | Oct 3, 2017 1:56:05 PM

My opening question to the jury panel at jury selection time: Raise your right hand if you believe in the Ten Commandments.
All raise their hands.
Question: How many believe in the Sixth Commandment? Thou Shalt Not Kill.
Ninety percent raise their hands.

I do not leave it there. Through the trial I refer to things like God and The Commandments when quetioning police and others.

It works.

Posted by: Liberty1st | Oct 4, 2017 11:07:10 AM

Lib. The Sixth Commandment does not translate that way. It states, Thou Shall not Murder. Murder is unlawful homicide.

Lo tirtzach = Not Murder.

See the Bible. The killing is endless, down to the last kitten of a conquered tribe. Those are lawful homicides, and their way of settling disputes.

I demand you start attending Sunday School. Learn more about religion.

Posted by: David Behar | Oct 4, 2017 12:18:11 PM

The UN Human Rights Council passed a resolution involving the death penalty that the U.S. rejected (a similar one w/o a lesbian/gay provision, which was a small aspect of it, resulted in the US abstaining during the Obama Administration) and the "no" votes were mostly the usual suspects. India was included, which is a bit notable to me. More so Japan was a "no." Looking it up, about 100 people were executed in Japan since 1990.

Posted by: Joe | Oct 5, 2017 10:28:46 AM

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