Will the Death Penalty Survive the Pandemic?

Posted in: Criminal Law

On Monday, September 20, the Oklahoma Court of Criminal Appeals took the unusual step of setting execution dates for seven people on that state’s death row. The executions would be carried out over the next six months, with one execution every month starting in October, except for January, when there would be two.

This is a breakneck pace, and it is all the more shocking in that these would be Oklahoma’s first executions since 2015. The state put capital punishment on hold after a series of botched executions including the infamous execution of Clayton Lockett.

Between now and the end of the year, executions also are scheduled in Alabama, Missouri, Ohio, and Texas. This return to carrying out capital punishments is particularly notorious in our current public health crisis. Yes, the Trump administration went on an execution spree, but death penalty states have generally been granting stays or postponing execution dates during the pandemic.

As a result, they have carried out only five executions in the last eighteen months, three of them in Texas. The first of those executions occurred in May 2020, when Missouri put Walter Barton to death.

Responding to the pandemic, no state carried out an execution between July 2020 and May of this year. By the end of 2020, a total of eleven executions had been delayed due to COVID-related concerns and only seventeen people had been put to death – the lowest annual number of executions since 1991.

And several notable death penalty cases were also delayed. They included the trials of accused Parkland shooter Nikolas Cruz and of Justin Smith, charged with murdering a University of Kentucky student in 2015.

Thus, if Oklahoma goes forward with its gruesome plan it would mark a substantial ramping up of the pace of executions at the state level and the end of an unofficial slow down since the start of the COVID-19 pandemic.

Does the pause in executions tell us anything about the longer term, or does Oklahoma’s planned return to capital punishment show that the epidemic-related pause is only that, a pause?

Looking at the current situation of capital punishment through the lens of history shows that what has happened in Oklahoma and elsewhere is unusual and likely temporary. The sharp drop in executions during the current pandemic represents a clear departure from the typical response to crisis. Oklahoma’s plan marks a regrettable return to the historic norm.

Research I conducted with Ryan Kyle suggests that America’s attachment to capital punishment has been remarkably resilient throughout our history. During crises, like wars, economic downturns, and previous disease outbreaks, the machinery of death has barely missed a beat.

While the number of executions has sometimes declined slightly, a look at what has happened during previous crises shows how unprecedented the COVID 19 pattern has been.

Looking first at the Revolutionary War reveals that the average number of executions during the war years dropped just a little from the annual execution rate for the five years before it began. While some of those wartime executions were for military crimes, the vast majority of them targeted civilians who committed “ordinary” crimes.

During the Civil War, a similarly small fraction of executions targeted disloyalty. Of the 261 executions that were carried out during the war between the states, only 48 involved punishment for disloyal behaviors. The other 213 were for crimes like murder, rape, or arson.

The Vietnam War marked an unusual departure from what has happened to the death penalty during other wars. From August 1964 to January 1973, the number of executions dropped significantly. Only 13 people were executed during the hostilities, and all of them occurred during the war’s first four years.

However, the unusually low execution numbers during the Vietnam War ultimately had little to do with that conflict.

It resulted from the increased momentum of the abolitionist movement which led Hawaii, Alaska, Delaware, Michigan, Oregon, Iowa, New York, West Virginia, Vermont, and New Mexico to end, or severely limited the scope of, the death penalty. That movement scored a big victory in 1972 when the United States Supreme Court imposed a nationwide moratorium on capital punishment.

In another sign of the death penalty’s resilience, executions generally have continued uninterrupted during even the most severe economic contractions, consuming time, energy, and resources that could otherwise serve the economy’s recovery.

During the Depression, from October 1929 to September 1939, there were a total of 1,651 executions—the most in a single decade in U.S. history—and far surpassing the total of 1,252 that were carried out in the ten years from 1919 to 1928. And the execution per homicide rate increased substantially, even though the homicide rate itself plummeted after 1933.

In the Great Recession of 2008-2009, 12 states executed a total of 66 people. This was higher than the annual average of 56 executions per year from 2003 to 2007 and the average of 41 annual executions from 2010 to 2014.

As has been the case in wars and economic downturns, previous disease outbreaks also have barely put a dent in the death penalty.

During the series of yellow fever outbreaks from 1793 to 1805 and from 1817 to 1830, the American death penalty continued. In the first series of outbreaks, 304 people were executed; in the second the number was 506. In both periods the average annual execution rate was higher than in the five-year periods immediately before and after.

One hundred years ago, three waves of Spanish flu outbreak killed approximately 675,000 people in the U.S. As the health crisis unfolded, state governments imposed quarantines and restrictions on most activities requiring close contact. Executions, however, continued, with a total of 126 carried out over the course of the epidemic.

Oklahoma’s effort to resume executions and restore its place among active, death penalty states, is one sign that America’s death penalty may survive the COVID-19 crisis just as it survived every other crisis in the past. But, whether or not it actually carries out its planned executions, growing doubts about the death penalty’s fairness, reliability, cost, and disparate racial impact mean that the penalty that survives will be much weakened, much diminished, and likely on its way to extinction.

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