History of the Death Penalty

NEW PODCAST: The Death Penalty and Human Dignity; Lessons From the Anti-Slavery Movement

“[T]he issue of race and the death penalty is not unique to the death penalty, it’s part of the broader problem with the criminal justice system,” says Bharat Malkani (pictured), author of the 2018 book Slavery and the Death Penalty: A Study in Abolition, in a new Discussions With DPIC podcast. In the October 2018 DPIC podcast, Malkani—a senior lecturer in the School of Law and Politics at Cardiff University in the United Kingdom—speaks with DPIC’s executive director Robert Dunham and Ngozi Ndulue, DPIC’s Director of Research and Special Projects. They discuss the historical links between slavery, lynching, Jim Crow, and the death penalty and the lessons modern opponents of capital punishment can learn from the strategies employed by slavery abolitionists.

Malkani explores the parallels between the institutional approaches of conservative and moderate anti-slavery activists and the arguments of modern conservatives and contrasts them with the broad morality-based arguments of radical slavery abolitionists, who, he says “fought not just for the abolition of slavery, but for the recognition of the dignity of black people and the equal dignity of black people, alongside whites.” The conservative and moderate opponents of slavery, he said, “focused on slavery as a standalone social issue,” rather than as “a symptom of a much broader problem with the social order. ... And we know in hindsight that one of the problems with [those] anti-slavery voices was that it entrenched the problems of racial subjugation.”

Malkani recognizes that pragmatic arguments based upon innocence, the costs of capital punishment, and systemic failures in the way capital punishment is administered have a role to play in efforts to end the death penalty, but argues that “in the longer term, the morality-based arguments, based on a recognition of dignity, will have a greater social impact.” History teaches “that we cannot think of the death penalty as separate [from] America’s history of slavery and racial violence,” he says. Death-penalty abolitionists, he says, must keep “the bigger, longer-term picture” in mind. “The issue here is not just the problems with the death penalty in practice, but the underlying values that lend support for the death penalty. ... If we do not tackle the values that underpin the problem and question the values that underpin the death penalty, then we’re just going to entrench the problems that lead to the death penalty.”

Gallup Poll—Fewer than Half of Americans, a New Low, Believe Death Penalty is Applied Fairly

Fewer than half of Americans now believe the death penalty is fairly applied in the United States, according to the 2018 annual Gallup crime poll of U.S. adults, conducted October 1-10. The 49% of Americans who said they believed the death penalty was "applied fairly" was the lowest Gallup has ever recorded since it first included the question in its crime poll in 2000. The percentage of U.S. adults who said they believe the death penalty is unfairly applied rose to 45%, the highest since Gallup began asking the question, and the four-percentage-point difference between the two responses was the smallest in the history of Gallup's polling.

The poll also found that, even as the number of new death sentences are near historic lows, the percentage of Americans saying that the death penalty is imposed too often continued to rise and the percentage saying it is not imposed enough continued to decline. 57% of U.S. adults said the death penalty was imposed either "too often" (29%) or "about the right amount" (28%). In 2010, just 18% said the death penalty was imposed too often. While a plurality of 37% said the death penalty was not imposed enough, that figure was down 16% from the 53% level who in 2005 said it was not imposed enough. Gallup analyst Justin McCarthy wrote that "as executions in the U.S. have decreased along with the generally sinking crime rate, Americans have become more likely to say capital punishment is unfairly applied and that it is imposed too frequently." 

Gallup measured overall support for capital punishment at 56%, which McCarthy described as "similar to last year's 55%." 2017, he said, "marked the lowest level of support for the practice since 1972." He said "support for capital punishment ... has been trending downward since peaking at 80% in the mid-1990s during a high point in the violent crime rate." The poll measured opposition to the death penalty at 41%, the same as last year's 45-year high. A national Pew Reseach Center poll released in June 2018 reported support for the death penalty at 54% and opposition at 39%. A 2017 study reported that murders in the 37 states that authorized the death penalty in 1994 declined by 35.4% between then and 2014, but that death sentences declined by 76.5%—more than double that rate—over the same time frame. 

ABA Panel Explores History, Morality of Death Penalty

"Has the death penalty evolved into an anachronism?" asked a panel at the August 2, 2018 American Bar Association Annual Meeting in Chicago. Moderator Ronald Tabak, chair of the ABA Death Penalty Committee, and panelists Cardinal Blase J. Cupich of the Archdiocese of Chicago; Karen Gottlieb, co-director of the Florida Center for Capital Representation; Meredith Martin Rountree, senior lecturer at the Northwestern Pritzker School of Law; and Robert Dunham, executive director of the Death Penalty Information Center sought to answer that question through a discussion of the last forty years of American death-penalty history and the evolution of the Catholic Church's moral teachings on the subject. The panelists' consensus: the death sentences imposed upon many of the death-row prisoners executed in the past would be unconstitutional today, and most of the prisoners now being executed would not be sentenced to death if they were tried today. 

The panel serendipitously took place on the same day that Pope Francis announced that the Catholic Church had formally revised its Catechism to deem the death penalty "inadmissible." Cardinal Cupich described the evolution of the Catholic Church's teachings on capital punishment, with an emerging focus on the concept of the dignity of human life. "Our assertion that the value of a human life does not depend upon an individual’s quality of life or age or moral worth must apply in all cases," he said. "For if we protect the sanctity of life for the least worthy among us, we surely witness to the need to protect the lives of those who are the most innocent, and most vulnerable." Karen Gottlieb highlighted how accidents of timing can result in unconstitutional executions, using Florida as an example of how numerous defendants with valid constitutional claims have been executed before courts issue rulings that would have barred their execution and how recent court rulings will permit the execution of more than 150 death-row prisoners who the state court acknowledges were sentenced under unconstitutional procedures. Meredith Martin Rountree discussed how American death-penalty law has evolved to exempt youthful offenders and individuals with intellectual disability and provided examples of current death-penalty practices—including the execution of offenders aged 18-21 and of people with severe mental illness—that could likely be banned in the future. Robert Dunham explained the "sea change in America’s attitudes about capital punishment" over the past twenty-five years and the reasons behind the accompanying broad nationwide decline in death-penalty usage over that period. He provided examples of more than 250 people who have been executed despite constitutional violations that would have invalidated their death sentences today and the estimated hundreds of others who were unconstitutionally sentenced to death but executed nevertheless because of procedural technicalities that prevented federal courts from enforcing constitutional protections in those cases.

A transcript of the proceedings, with updates from the panelists, was released by the ABA's Section of Civil Rights and Social Justice in late September 2018 and recently posted on the DPIC website.

BOOK: Slavery and the Death Penalty

"It is widely recognized that capital punishment in the United States of America continues to be imbued with the legacy of slavery" and, to end it, American death-penalty abolitionists "should draw on the radicalism of [anti-slavery] abolitionists." So argues British death-penalty scholar and abolitionist Dr. Bharat Malkani, a Senior Lecturer at the Cardiff University School of Law and Politics, in his new book, Slavery and the Death Penalty: A Study in Abolition. Malkani's book explores the historical and conceptual links between slavery and capital punishment and the efforts of abolitionist to end both practices. His book contrasts the discourse of conservative and pragmatic anti-death penalty activists, which he says accepts the legitimacy of the institutional machinery of capital punishment and the moral values of harsh retributivism, with arguments that "emphasize the inherent dignity of the person facing execution." He says the lessons of history suggest that the latter, "expressly rooting anti-death penalty efforts in the idea of dignity," is more effective. Malkani looks closely at the practical and psychological links between slavery and capital punishment, which he finds to be clear and inescapable. "The imposition of death sentences discriminates along racial lines and is disproportionately imposed on the poor, just as slavery was marked by divisions over race and class. Executions have occurred mainly, albeit not exclusively, in former slave states — the same places that witnessed the highest frequencies of lynchings. And," he writes, "capital punishment, like slavery, is predicated on the notion that some people do not belong to the political and moral human community." Malkani analogizes contemporary "conservative" and "pragmatic" anti-death penalty arguments that portray the death penalty as a failed government program or that focus on the economic costs of capital punishment to the approach of those anti-slavery advocates who argued for incremental legal restrictions on slavery or called for the gradual emancipation of only some slaves. He argues that the morality-based approach of more radical slavery abolitionists — emphasizing that the inhumanity of slavery violated the dignity of the slave, the slaveholder, and the community as a whole — has greater social impact. He believes that the arguments of many modern-day anti-death penalty activists focus too narrowly on the death penalty, giving too much credence to life in prison without parole as a viable option. These arguments, he writes, ignore the broader social injustices omnipresent within the United States' administration of the criminal laws. "[C]ontemporary anti-death penalty efforts," he writes, "must be radical in their visions, in order to inspire much-needed changes to the tendency to view some people’s lives as less valuable than others."

Death-Penalty Experts Describe Justice Kennedy's Mixed Legacy on Capital Punishment

Justice Anthony Kennedy's votes swung both to the right and to the left on death-penalty issues, professors Carol Steiker (pictured, l.) of Harvard Law School and her brother, Jordan Steiker (pictured, r.) of the University of Texas School of Law write in a commentary for SCOTUSblog, "but [he] declined to swing for the fences." The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy's nuanced interpretation of the Eighth Amendment and his mixed legacy as a swing vote on capital punishment. Though he was "a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation," they write, he also was "the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence." Most notably, he joined or authored landmark decisions that narrowed the scope of the death penalty, exempting defendants with intellectual disability, juvenile offenders, and those who committed non-homicide crimes. Those decisions on the Court's "proportionality doctrine" had systemic impact on the administration of the death penalty nationwide and paved the way for later decisions banning the use of mandatory life-without-parole sentences for juveniles. However, Justice Kennedy was content to grapple with the constitutionality of individual death-penalty practices one at a time, rather than addressing the constitutionality of capital punishment as a whole. Kennedy's role as a swing vote is illustrated by his change of heart on guarantees of individualized sentencing. In his early days on the Court, he voted to restrict defendants' rights to the consideration of mitigating evidence that could spare their lives, but nearly 20 years later, as the Court as a whole moved ideologically to the right, he shifted leftwards and joined majority opinions that broadly protected the rights to present and have capital sentencers meaningfully consider that evidence. In 1989, he provided the fifth vote in Stanford v. Kentucky to permit the use of the death penalty against offenders aged sixteen and seventeen. By 2005, citing an evolution of values in the United States, he authored the Court's 5-4 decision in Roper v. Simmons banning the death penalty for offenders under age eighteen. In 2015, Kennedy started an important discussion of the conditions of incarceration on death row, raising questions about the effects of long-term solitary confinement. Justice Stephen Breyer drew on Kennedy's concerns in his dissent in Glossip v. Gross, questioning the constitutionality of capital punishment.

New Podcast: Professor Carol Steiker on the History and Future of America’s Death Penalty

Harvard Law Professor Carol Steiker (pictured), co-author of the highly acclaimed book, Courting Death: The Supreme Court and Capital Punishment, joins DPIC’s Robin Konrad for a provocative discussion of the past and future of America’s death penalty. In the latest episode of Discussions with DPIC, Professor Steiker—who served as a clerk for Supreme Court Justice Thurgood Marshall—takes us inside the walls of the Court for insights on the justices’ approaches to capital-punishment jurisprudence and the impact of Justice Marshall’s legacy on the Court today. She describes her experience with death-penalty cases as a U.S. Supreme Court clerk, and talks about the recurring evolution of the justices’ views on the death penalty as they experience years of failed attempts to redress its systemic flaws. In putting the modern death penalty in context, Professor Steiker focuses particularly on the relationship between race and capital punishment. “Today’s death penalty,” she says, “is inextricably tied to a history of slavery, of lynching, of progressive anti-lynching support of the death penalty. Those are the waves of history that are still lapping at the shore of the present.” The legacy of that history, she says, continues to be felt in the overwhelmingly disproportional use of capital punishment by the states of the former Confederacy, as compared to the rest of the country, and the disparate pursuit and imposition of the death penalty in cases involving White victims. Steiker identifies systemic problems in today’s death penalty that she says could some day lead the U.S. Supreme Court to declare it unconstitutional, including the politicization of judges and prosecutors and the “abysmal” state of capital representation. When and if abolition occurs, she says, will depend ultimately on the composition of the Court.

From Slavery to the Death Penalty: New Museum and Memorial for Peace and Justice Open in Montgomery, Alabama

On April 26, 2018, the Equal Justice Initiative (EJI) opened the Memorial for Peace and Justice and its accompanying Legacy Museum, which tell the stories of the more than 4,000 men, women, and children killed by racial terror lynchings in the century following the Civil War, and trace the connections between slavery, segregation, capital punishment, and mass incarceration. The opening drew thousands of visitors from across the country, theatrical headliners, and a host of civil rights legends—including Congressman John Lewis and the surviving plaintiffs and lawyer who brought the lawsuit that ended segregated seating on public buses. The memorial and museum arose out of the criminal defense work of the Equal Justice Initiative and its founder, Bryan Stevenson, first representing indigent prisoners on Alabama’s death row and later expanding to fight juvenile life sentences and other manifestations of mass incarceration. Stevenson said, “It really springs from that experience of representing people in courts and beginning to see the limits of how committed our courts are to eradicating discrimination and bias. I want to get to the point where we experience something more like freedom. … I don’t think we are going to get there until we create a new consciousness about our history.” EJI’s research on lynchings, including the 2015 report, Lynching in America: Confronting the Legacy of Racial Terror, shows a clear link between lynchings and the death penalty. Counties and regions that today carry out the most executions are the same places in which lynchings were most likely to take place, and the ongoing racial bias in the application of the death penalty reflects the legacy of racial terror lynchings. “[I] believe that capital punishment is the stepchild of lynching,” Stevenson said. “It was disproportionately used against people of color; it still continues to be shaped primarily by race.” As America’s global allies pressured the country to end lynchings after World War II, Stevens said, “lynchings moved inside. We still executed mostly black people after proceedings that were unreliable and unfair. We promised ‘swift justice,’ which was intended to be the same thing as lynching without the spectacle, without the optic, without the mob.” Stevenson said he was motivated to create the memorial and museum because a discussion of the past is necessary to create a more just and equal society. “We haven’t created spaces in this country that tell the history of racial inequality, of slavery, of lynching, of segregation that motivate people to say, ‘Never again,’” he said.

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

Pages