The Road Not Taken: In 2023 Two Death Penalty States Offer Americans a Clear Choice

Posted in: Constitutional Law

As 2023 comes to a close, the United States continues to be an outlier nation in its use of capital punishment. But the situation in this country is more complicated than that statement registers.

Across the nation as a whole, the death penalty continues to wane. Fewer people are being sentenced to death in a smaller number of places, and even where capital punishment is still used, fewer people are being executed.

But we are a long way from the moment when the death penalty will be a thing of the past in the United States.

In the meantime, developments in two death penalty states point in dramatically different directions and offer Americans a stark choice about the future of capital punishment. In one state, Ohio, it has been more than five years since an execution was carried out, and today people who once supported the death penalty now realize that they can live without it.

In Florida, the picture at the end of the year is very different. 2023 has seen an uptick in Florida’s use of the death penalty and a loosening of the standards governing death sentences.

As Americans contemplate these two different paths, they are divided and ambivalent about the ultimate punishment and what to do about it.

According to The Death Penalty Information Center (DPIC), “The Gallup Crime Survey has asked for opinions about the fairness of death penalty application in the United States since 2000. For the first time, the October 2023 survey reports that more Americans believe the death penalty is applied unfairly (50%) than fairly (47%).”

The DPIC notes that “Between 2000 and 2015, 51%—61% of Americans said they thought capital punishment was applied fairly in the U.S., but this number has been dropping since 2016. This year’s 47% represents a historic low in Gallup’s polling.”

Moreover, as its November report suggests, the Gallup organization “first asked Americans whether they supported the death penalty for convicted murderers in 1936 and found 59% favoring it…. The current 53% of Americans who favor the death penalty is the lowest since 1972, though it is not statistically different from 54% and 55% readings over the past three years.”

Support for capital punishment shrinks even further (to 36%) when survey respondents are given the option of life without parole.

Gallup also offers another indication of America’s death penalty quandary. “A separate question gauging Americans’ opinions of how frequently the death penalty is imposed finds that 39% think it is not used often enough and equal 28% shares saying it is used too often and not enough.”

For those who want to see more death sentences and executions, what Florida has done offers hope. In 2023, it executed six people, second among death penalty states only to Texas, which put eight people to death.

In the wake of a controversial verdict in the Parkland school shooting case, Florida also took steps to make it easier for prosecutors to obtain death sentences. Last April, the state legislature passed, and the governor signed, a law saying that juries don’t have to be unanimous to recommend the death penalty.

Under this new legislation, a jury can impose death if 8 of the 12 jurors vote for it. As WSUF reported at the time, “Only three states out of the 27 that impose the death penalty do not require unanimity. Alabama allows a 10-2 decision, and Missouri and Indiana let a judge decide when there is a divided jury.”

Not surprisingly, Gov. Ron DeSantis celebrated the bill’s passage. “Once a defendant in a capital case is found guilty by a unanimous jury,” he said, “one juror should not be able to veto a capital sentence. I’m proud to sign legislation that will prevent families from having to endure what the Parkland families have and ensure proper justice will be served in the state of Florida.”

During 2023, five people received death sentences in the Sunshine State. However, in only one of those cases was the verdict handed down by a non-unanimous jury.

Finally, in its eagerness to ramp up capital punishment, Florida defied existing U.S. and Florida State Supreme Court precedent and enacted legislation authorizing the death penalty for child sex abuse offenders. This month, prosecutors brought the first case under the new law, and DeSantis has said they have his “full support.”

Maria Deliberato, executive director of Floridians for Alternatives to the Death Penalty, got it right when she said that this year Florida became “the most extreme death penalty state in the nation.”

While Florida charts a course for Americans who want to see more death sentences and executions, in 2023 Ohio was a beacon for those who are ready to abandon capital punishment.

As the Columbus Monthly notes, since Ohio last put someone to death on July 18, 2018, “executions have ground to an unofficial halt in the state that less than 20 years ago briefly had the second-busiest death chamber after Texas. It’s the longest gap in capital punishment in Ohio since executions resumed in 1999.”

In contrast to his Florida counterpart’s enthusiasm for the death penalty, in 2020 Ohio’s Republican governor Mike DeWine said that he was “much more skeptical about whether it meets the criteria that was certainly in my mind when I voted for the death penalty, and that was that it in fact did deter crime, which to me is the moral justification.”

One year later DeWine narrowed the application of the death penalty when he signed a bill into law prohibiting the execution of individuals suffering from serious mental illnesses at the time of their crimes.

Moreover, “since taking office in January 2019,” as the Columbus Monthly says, “DeWine has issued more than 40 reprieves affecting 27 death row inmates, including three reprieves as recently as mid-October. In that announcement, DeWine once again cited ‘ongoing problems involving the willingness of pharmaceutical suppliers to provide drugs to the Ohio Department of Rehabilitation and Correction, pursuant to DRC protocol, without endangering other Ohioans.’”

The governor is not the only prominent Republican who is openly expressing doubts about capital punishment. Ohio Attorney General Dave Yost, a possible candidate for governor in 2026, worries that the state is spending an enormous  amount of money on a program that, in his view, “doesn’t achieve its purpose.”

“This system,” Yost says, “satisfies nobody. Those who oppose the death penalty want it abolished altogether, not ticking away like a time bomb that might or might not explode. Those who support the death penalty want it to be fair, timely and effective. Neither side is getting what it wants while the state goes on pointlessly burning through enormous taxpayer resources.”

As 2023 ends, the Ohio state legislature is considering a bipartisan abolition bill, and a recent poll conducted by the ACLU found 54 percent of its respondents were in favor of a life sentence for people rather than the death penalty for someone convicted of “first-degree murder.” It seems that the longer Ohio goes without using the death penalty, the more people are ready to put it in the dustbin of history.

Two states. Two very different death penalty stories.

It is time for America, borrowing a line from a 1965 Lovin Spoonful song, “to make up its mind and pick up on one and leave the other behind.” Following what seems to be Ohio’s path offers a way forward that might someday soon leave the cruelty of capital punishment behind and bring this country into line with the community of nations.

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