As America’s Death Penalty Declines, Let’s Not Lose Sight of the Glaring Injustices That Remain

Posted in: Criminal Law

2022 was both an extraordinary year for America’s death penalty and a deeply troubling one. The use of the death penalty continued a decades-long decline, and the political climate favoring the restriction or abolition of capital punishment continued to improve. The last half century has witnessed extraordinary, almost unimaginable, changes in how Americans think about the death penalty.

Fifty years ago, in 1972, the United States Supreme Court brought a temporary halt to capital punishment in Furman v. Georgia. Four years later, however, the Court approved new procedures for deciding on death sentences and upheld the constitutionality of the death penalty.

And by the 1990s, fueled by a “tough on crime” political climate, the number of death sentences and executions steadily climbed. Yet, over the last several decades, the tide has turned, and the death penalty is in decline. But a look at the use of capital punishment this year is a stark reminder of the serious injustices that continue to plague the death penalty system.

Even as abolitionists celebrate the progress made in the effort to end capital punishment, we need to keep a clear-eyed focus on its arbitrariness and cruelty. Even as abolitionists continue to litigate to stop death sentences and executions, we need to remember that the struggle to remedy those injustices ultimately will have to be won in the political arena.

This is because the current conservative-dominated Supreme Court is completely unsympathetic to the kind of constitutional challenges that the Court recognized a half-century ago in Furman. In fact, it now seems eager to do whatever it can to make it easier for death penalty jurisdictions to carry out executions.

In this as in other areas, the Court seems to be out of step with the mood in the country.

The Death Penalty Information Center (DPIC), an organization that collects data about capital punishment, captured that mood in its 2022 year-end report:

In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, . . . public support for capital punishment and jury verdicts for death remained near fifty-year lows. Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.

Looking first at the number of death sentences reveals the magnitude of the death penalty’s decline. Twenty-two people were sentenced to death in 2022, down from the peak of 315 who received death sentences in 1996, and the DPIC notes that “The five-year average of new death sentences, 27 per year, is the lowest in 50 years.”

Turning from death sentences to executions, we find a similar pattern.

Eighteen people were executed in 2022, down from the 98 who were executed in 1999 when executions reached their highest point in recent history. The number of executions in 2022 was the fewest in more than three decades. Moreover, as the DPIC reports, thirty-seven states have either abolished the death penalty outright or not executed anyone in more than a decade.

In fact, more states have ended capital punishment in the last 15 years than in any comparable period in American history.

During 2022, as the DPIC puts it, the number of people on death row across the nation “declined in size for the 21st consecutive year.” At the year’s end, there were approximately 2400 men and women awaiting execution in the United States. “That number is down by nearly a quarter from a peak of nearly 3,600 at the turn of the 21st century.”

As registered in public opinion polls, support for the death penalty remained at, or near, 50%. This is a fifty-year low point, down from the 80% who favored it in 1994. Support for life without parole, as an alternative to the death penalty, has steadily increased — to the point where the country is now evenly split when people are asked whether they prefer the death penalty, or life without parole, as a punishment for murder.

In spite of these clear trends, some jurisdictions are now doubling down on capital punishment.

That pattern is clear if we look at the places where executions were carried out in 2022. Just six states were responsible for all of them. Texas and Oklahoma each carried out five executions. Arizona put three people to death, followed by Alabama and Missouri with two each and Mississippi with one.

America’s death penalty is now defined, as the DPIC noted in its 2021 year-end report, “by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.”

That “extreme conduct” includes imposing death sentences arbitrarily and sometimes sentencing innocent people to death. In fact, since 1972, for every 8.3 executions carried out in the United States, one person has been exonerated despite having been convicted of a capital crime and sentenced to death.

Moreover, executions continue to be carried out in a racially discriminatory manner. Over the last fifty years, 75% of the victims in cases that ended in an execution have been white.

The stark fact of racism in America’s death penalty only intensified in 2022.

Today, 41% of death row inmates in the U.S. are Black, despite being just 13% of the U.S. population.

The eighteen people executed this year were responsible for the deaths of 26 people, 84% of whom were white. Eight (44%) of those put to death were people of color.

And, looked at as a whole, capital punishment in the United States, as Amnesty International observes, is used “against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities.”

A study published in 2017 in the Washington Post found that 43% of inmates executed between 2000 and 2015 had received a mental illness diagnosis at some point in their lives.

It reported that “20 percent of the executed inmates were diagnosed with a personality disorder; 8.9 percent were diagnosed with antisocial personality disorder. Although sometimes associated with violent behavior or referred to as ‘sociopaths’ or ‘psychopaths,’ these are nonetheless debilitating mental illnesses, accompanied by patterns of brain dysfunction and impairment.”

The study also noted that “death row inmates are much more likely than most Americans to have suffered trauma during childhood” and to suffer from intellectual disabilities.

The disturbing findings reported by the Washington Post five years ago were repeated in 2022.

For example, when Oklahoma carried out the first of this year’s executions it put to death Donald Grant who had been diagnosed with schizophrenia and brain damage. The next person executed in 2022 was Matthew Reeves, who had an intellectual disability and an IQ in the 60s. The third was Gilbert Postelle who was both intellectually impaired and mentally ill.

And when Mississippi carried out 2022’s last execution on December 14, it put to death Thomas Loden, a man who had been physically and sexually abused as a child and who had attempted suicide five times.

As the death penalty continues to decline and this country puts fewer and fewer people to death, the arbitrariness, racism, and cruelty of executing people with significant disabilities stand out ever more clearly.

2022’s executions should, as Charles Ogletree once observed, give us “cause to look more closely at the people whom we execute.” As he correctly concluded, “When you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.”

Posted in: Criminal Law

Tags: Death Penalty

Comments are closed.