Last Friday, the Death Penalty Information Center issued its year-end report. The message is mixed.
The report offered evidence of the substantial progress achieved by abolitionists during 2023 in their fight to end capital punishment in the United States. At the same time, it presented a bleak assessment of the Supreme Court’s current attitude toward the death penalty and documented the Court’s unwillingness to ensure fairness in capital cases.
But the DPIC claimed that the fact that the “death penalty is increasingly disfavored” and in 2023 continued the “years long decline in its use,” has “little to do with the Supreme Court.”
I want to examine this claim and offer an alternative perspective. I suggest that what the Court did, or did not do, in death cases in 2023 and for many years before is contributing to growing public doubts about capital punishment.
Before taking up that argument it is worth looking at what the DPIC found about capital punishment in the United States in 2023.
It reports that while there was a slight increase in the number of people executed, up from 18 in 2022 to 24 in 2023, this was “the 9th consecutive year with fewer than 30 people executed … and fewer than 50 people sentenced to death.” It says that “only five states [Texas, Florida, Missouri, Oklahoma, and Alabama] executed people this year, and only seven states [Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas] sentenced people to death.”
In addition, the DPIC states that “the majority of states (29) have now either abolished the death penalty or paused executions by executive action.” And “support for capital punishment remains a five-decade low in the United States…. In 2023 … 53% of Americans favor the death penalty, the lowest number since March 1972.”
However, the DPIC bemoans what it sees as an abdication of responsibility by the United States Supreme Court for ensuring that the death penalty is administered in a constitutionally acceptable way.
“[T]he Court,” it says, “spent decades scrutinizing state laws and procedures, interpreting arcane statutory provisions, clarifying constitutional standards, reviewing challenges to the methods of execution, in deciding cases that narrowed the application of the death penalty. The court also intervened in extraordinary cases to grant stays of execution and resisted state efforts to expand use of the death penalty.”
“Now,” the DPIC writes, “the majority of the court appears unwilling to continue in this role.”
In 2023, the Supreme Court “granted only one stay of execution” and “granted certiorari in only four death penalty cases.” It “turned away the overwhelming majority of petitions filed by death sentenced prisoners.” And the Court refused “to review cases that presented major constitutional concerns.”
Responding to these developments, Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor spent 2023 criticizing their conservative colleagues for their unwillingness to scrutinize even the most egregious miscarriages of justice in death cases.
For example, in Barber v. Ivey, the Court refused to hear a case seeking review of Alabama’s execution protocol after a series of botched executions. Justice Sotomayor called its decision “another troubling example of this Court stymying the development of Eighth Amendment law by pushing forward executions without complete information.”
She warned that “This Court has so prioritized expeditious executions that it has disregarded well-reasoned lower court conclusions, preventing both the meaningful airing of prisoners’ challenges and the development of Eighth Amendment law.”
Still more efforts to get the Supreme Court out of the business of ensuring fairness in capital cases are on the horizon. In Alabama v. Smith, a case now pending before the Court, attorneys general from 13 death penalty states have filed an amicus brief urging it to extend its originalist jurisprudence to death cases.
They are asking the Court to reject its longstanding commitment to interpret Eighth Amendment challenges to death and other punishments in light of the “evolving standards of decency that mark the progress of a maturing society.” They argue that such a standard has “little meaning” and that it “undermines” state sovereignty over criminal law.
The state sovereignty they want to protect often leads to death sentencing that is arbitrary, discriminatory, and cruel.
Writing about the Supreme Court’s once active involvement in policing the death penalty and mandating procedural safeguards in capital cases, NYU sociologist and law professor David Garland observed that “an unintended effect” of the Court’s work was “to enhance the perceived lawfulness and legitimacy of capital punishment and thus act as a force for its conservation.”
Today, as the Court backs away from effective supervision of capital punishment, it may produce another unintended effect. Its abdication of responsibility undermines the death penalty’s perceived lawfulness and legitimacy and, in so doing, fuels doubts about whether America should continue to use that punishment.
In fact, there is evidence that state officials and citizens now worry, more than they ever have, that the death penalty is administered in ways that are incompatible with America’s commitments to due process, equal protection of the law, and fundamental fairness.
It is not that they know precisely what the Court is doing, or not doing, about the death penalty. Instead, as the Court allows executions of death row inmates to proceed in spite of glaring problems in their cases, and as the media report on those cases, public officials and citizens come to associate the death penalty with unfairness.
This is true even for conservative lawmakers and elected officials.
As the DPIC‘s Executive Director notes, those lawmakers and officials have recently expressed “an unprecedented show of support for death-sentenced prisoners” moving some to “oppose use of the death penalty in their state.” In fact, Republicans are leading efforts to repeal or limit the death penalty in places like Kentucky, Georgia, Missouri, Kansas, Ohio, Pennsylvania, Ohio, and Utah.
And a recent Gallup survey found that Americans are more likely to believe that the death penalty is applied unfairly than to think it is applied fairly. As the DPIC puts it, “Between 2000 and 2015, 51-61% of Americans said they thought capital punishment was applied fairly in the US but this number has been dropping since 2016. This year’s 47% represents a historic low in Gallup’s polling.”
The DPIC’s report demonstrates that what New York Times reporter Adam Liptak called in 2021 the Supreme Court’s “impatience with arguments made by death row inmates” has only accelerated. Such impatience, as Liptak speculated, takes a “toll” on the Court’s own credibility as a guardian of constitutional rights.
But it now also seems to be taking a toll on the American public’s support for death sentences and executions. The Court’s hands-off approach and its tolerance for injustice in capital cases is hastening the day when the death penalty itself will no longer be used.