In its 2024 Annual Report, the Death Penalty Information Center reported that over the course of the year, 26 people received death sentences. That represented a slight uptick from the previous year when 21 death sentences were handed down.
Last year, death sentences were imposed in only ten of the 27 states that retain capital punishment. Florida led the way with seven. And, as the DPIC notes, “Texas imposed six, Alabama imposed four, California imposed three. Arizona, Idaho, Mississippi, Nevada, Ohio, and Tennessee each had one new death sentence.”
According to the DPIC, 2024 is “the tenth consecutive year with fewer than 50 people sentenced to death, further evidence of juries’ reluctance to impose death sentences.” This is a remarkable development when we recall that during the 1990s, the number of new death sentences was around 300 per year.
And, looking at the results of such sentences, it seems clear that charging someone with, and prosecuting someone for, a capital crime may provide a kind of symbolic satisfaction. But in most cases it is not worth the effort.
It is long past time to face that fact and find better ways to respond to terrible crimes.
This was made clear by another DPIC report issued in August of last year, the so-called “Death Penalty Census.” This remarkable resource offers a “comprehensive collection of every death sentence imposed since 1972…. It contains information on 9,857 death sentences imposed on 8,861 defendants over the last five decades.”
Among the most startling and important findings of the Death Penalty Census was that “A death sentence is 3 times more likely to be reversed as a result of a court decision than it is to result in an execution.”
The DPIC finding builds on the work of Columbia Professor James Liebman and his collaborators, who studied capital sentencing between 1973 and 1995. They found that “the overall rate of prejudicial error in the American capital punishment system was 68%. In other words, courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.”
In addition, Liebman claimed that “Capital trials produce so many mistakes that it takes three judicial inspections to catch them—leaving grave doubt whether we do catch them all. After state courts threw out 47% of death sentences due to serious flaws, a later federal review found ‘serious error’—error undermining the reliability of the outcome—in 40% of the remaining sentences.”
Liebman concluded that “This much error, and the time needed to cure it, impose terrible costs on taxpayers, victims’ families, the judicial system, and the wrongly condemned. And it renders unattainable the finality, retribution and deterrence that are the reasons usually given for having a death penalty.”
Many explanations could be offered for why, despite the facts revealed by the DPIC and scholars like James Liebman, some prosecutors persist in their efforts to persuade juries to authorize the killing of a capital defendant. For the moment I’d like to focus on just one.
So long as capital punishment is on the books as America’s ultimate punishment, anything less will appear to prosecutors, and some citizens, as an inadequate response to the most gruesome crimes. In fact, eight years ago, the Harvard Law School’s Fair Punishment Project identified five prosecutors who it said were responsible for a disproportionate number of capital prosecutions in the United States.
An article in The Guardian noted that those five were “responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who … [were at that time] awaiting execution in the US, it is equivalent to one out of every seven.” Or put another way, “of the 8,038 death sentences handed down since the death penalty was restarted in the modern era…some one in 20 of them have been the responsibility of those five district attorneys alone.”
The Harvard report quotes Joe Freeman Britt, the former prosecutor for Robeson County, North Carolina, who obtained 38 death sentences from 1974 to 1988. Brittas said: “Within the breast of each of us burns a flame that constantly whispers in our ear ‘preserve life, preserve life, preserve life at any cost. It is the prosecutor’s job to extinguish that flame.”
But Britt and the other four death penalty enthusiasts had no greater success in turning capital sentences into executions than prosecutors who were more discerning about when a capital prosecution was appropriate.
The difficulty of turning death sentences into executions has long been a feature not a bug in America’s death penalty system. As Professor Samuel Gross puts it, “There is widespread aversion to the prospect of numerous executions. It shows up repeatedly, and in different contexts; it is a startling illustration of the abstract nature of most people’s attitudes toward capital punishment. A single execution is not truly an act of revenge, but it looks like revenge; it symbolizes our desire and our willingness to seek vengeance.”
“Appearances to the contrary notwithstanding,” Gross explains, “the death penalty we have is pretty much the death penalty we want. The costs of the process are mostly hidden from view. Politicians and judges grumble about delays, but the system does produce what the public demands: a widely available death penalty that is rarely carried out.”
What Professor Samuel Gross said in 1993 is still true today.
In 1993, there were almost 300 death sentences. Thirty-one years later, death sentences have been cut by more than 90%.
Today, one cannot say that the death penalty, as measured by the number of death sentences, is “widely available.”
An article in Vox suggests that “many factors that likely contribute to the death penalty’s decline. Among other things, crime fell sharply in recent decades…. Public support for the death penalty has also fallen sharply…. And, beginning in the 1980s, many states enacted laws permitting the most serious offenders to be sentenced to life without parole instead of death—thus giving juries a way to remove such offenders from society without killing them.”
However, Vox notes that these “factors can only partially explain why the death penalty is in decline.” It observes “that one of the biggest factors driving the decline in death sentences is the fact that capital defendants typically receive far better legal representation today than they did a generation ago.”
In addition, as Gross and his co-author, Pheobe Ellsworth argue in a more recent article, the general picture of the death penalty in America today makes it harder for prosecutors to secure death sentences and they know it.
At one time, the death penalty story was about “Vicious killers [who] got more help than they deserved from do-gooder lawyers intent on finding legal technicalities and creating endless delays…. Stories of grisly murders and the suffering families of the victims were more prevalent and more vividly described in the media than stories of unfair convictions.”
Today, that story “is one of a system full of blunders and deception, a bureaucracy hustling people towards death row without proper concern for whether they really have the right person.”
That is why, as the DPIC’s Death Penalty Census says, “[T]he single most likely outcome of a death sentence imposed in the United States is that the sentence or conviction is ultimately overturned and not re-imposed…. By comparison, fewer than one in six (15.7%) death sentences ended in execution.”
15%. With that “success” rate, why bother?
Why bother to hold onto a punishment that is a relic of another era. Its time has passed.
America should recognize that and end it everywhere.
