Today, July 1, 2024, the Death Penalty Information Center releas­es a new report, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty. Using new data and analy­sis on appel­late rul­ings and grants of clemen­cy, as well as indi­vid­ual sto­ries and case stud­ies from across the coun­try, the report exam­ines how elec­toral pol­i­tics dis­tort the fair­ness and accu­ra­cy of capital punishment.

The United States is the only coun­try in the world that elects local pros­e­cu­tors, and the only one to elect judges in expen­sive, par­ti­san judi­cial elec­tions. This unique aspect of the American crim­i­nal legal sys­tem remains unaf­fect­ed by the pro­ce­dures intro­duced by courts in past years that were intend­ed to min­i­mize arbi­trari­ness in the death penal­ty sys­tem. The U.S. elec­toral process inserts many ele­ments of unpre­dictabil­i­ty and unfair­ness into death penal­ty cas­es. A life-or-death deci­sion should not depend on whether an appeal or clemen­cy peti­tion is heard in an elec­tion year, nor should a defendant’s fate rest on who donat­ed mon­ey to an official’s cam­paign fund,” said Robin M. Maher, Executive Director of the Death Penalty Information Center. But the data sug­gest that is exact­ly what is happening.”

Lethal Election includes find­ings from orig­i­nal research on state supreme court rul­ings in Georgia, North Carolina, and Ohio. The Death Penalty Information Center found that elect­ed supreme court jus­tices in those states affirm twice as many death sen­tences dur­ing an elec­tion year than in any oth­er year. In a new analy­sis of clemen­cy data, the Death Penalty Information Center has also found that a major­i­ty (56%) of clemen­cy grants were made by exec­u­tives who were not run­ning for reelec­tion. The effect was even stronger, how­ev­er, when exec­u­tives had sole author­i­ty to make clemen­cy deci­sions: in those juris­dic­tions, 84.6% of indi­vid­ual clemen­cies were grant­ed when the exec­u­tives did not face reelec­tion. When exec­u­tives with sole author­i­ty to grant clemen­cy did face reelec­tion, they only grant­ed clemen­cy four times in 50 years.

The report also notes how offi­cials use the death penal­ty as a polit­i­cal issue in elec­tion cam­paigns and adver­tis­ing. For exam­ple, three Tennessee Supreme Court jus­tices boast­ed in tele­vi­sion ads of uphold­ing near­ly 90 per­cent of death sen­tences” when run­ning for reelec­tion. When Kelly Ayotte ran for U.S. Senate, her cam­paign ads fea­tured her deci­sion as New Hampshire Attorney General to seek the death penal­ty for a man accused of killing a police offi­cer. Ten mem­bers of the Commission to Study the Death Penalty in New Hampshire cit­ed Ms. Ayotte’s behav­ior in their rec­om­men­da­tion to abol­ish the death penal­ty, writ­ing, Whether real or imag­ined, even the appear­ance of pol­i­tics influ­enc­ing a deci­sion of this mag­ni­tude in the New Hampshire crim­i­nal jus­tice sys­tem serves to dimin­ish con­fi­dence in the integri­ty of the sys­tem itself.” Ms. Ayotte con­tin­ues to use the same death penal­ty case in her 2024 cam­paign for New Hampshire Governor.  

While some politi­cians con­tin­ue to pro­mote them­selves as tough-on-crime, a shift in pub­lic sup­port for the death penal­ty has changed the prac­tices of pros­e­cu­tors in some of the coun­ties that his­tor­i­cal­ly pur­sued high num­bers of death sen­tences. In Philadelphia, Pennsylvania, where District Attorney Lynne Abraham earned the nick­name Queen of Death” for her aggres­sive use of the death penal­ty in the 1990s, vot­ers have twice elect­ed Larry Krasner, who has pledged nev­er to seek the death penal­ty. Harris County, Texas, which has pro­duced more exe­cu­tions than any oth­er coun­ty in the U.S., has seen a sig­nif­i­cant drop in the num­ber of death sen­tences since the 2016 elec­tion of District Attorney Kim Ogg, who said in 2017, I don’t think that being the death penal­ty cap­i­tal of America is a sell­ing point for Harris County.”

As pub­lic sup­port for the death penal­ty con­tin­ues to decline and doubts about fair­ness and accu­ra­cy increase, elect­ed offi­cials are tak­ing notice. Their behav­ior reflects the fact that, in many places, their con­stituents no longer pri­or­i­tize or val­ue zeal for the death penal­ty. Understanding these changes should lessen the pres­sure on elect­ed offi­cials to act reflex­ive­ly and puni­tive­ly. But so long as we con­tin­ue to elect deci­sion-mak­ers and empow­er them with the dis­cre­tion to make life-or-death deci­sions, there will be a con­tin­u­ing dan­ger that polit­i­cal aspi­ra­tions will take pri­or­i­ty over con­sid­er­a­tions of human­i­ty, dig­ni­ty, and jus­tice. This is one of the great weak­ness­es of the U.S. death penal­ty. 

Key find­ings of the report:

  • Elected supreme court jus­tices in Georgia, North Carolina, and Ohio are twice as like­ly to affirm death penal­ty cas­es dur­ing an elec­tion year than in any oth­er year. This effect is sta­tis­ti­cal­ly sig­nif­i­cant when con­trol­ling for the num­ber of cas­es each year.
  • Changing pub­lic opin­ion means that zeal­ous sup­port for the death penal­ty is no longer a lit­mus test for elect­ed offi­cials in many death penal­ty juris­dic­tions. Today’s elec­tions fea­ture viable can­di­dates who crit­i­cize use of the death penal­ty and pledge reforms or even non-use, reflect­ing the sig­nif­i­cant decline in pub­lic sup­port for the death penalty.
  • Elected gov­er­nors were more like­ly to grant clemen­cy in the past when they did not face vot­ers in an upcom­ing elec­tion. Concerns about vot­er back­lash” have eased today with declin­ing pub­lic sup­port and low num­bers of new death sen­tences and exe­cu­tions, and have led to an increased num­ber of pris­on­ers ben­e­fit­ing from clemen­cy grants, espe­cial­ly mass grants, in recent years.
Citation Guide
Sources

Robin M. Maher and Leah Roemer, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty, Death Penalty Information Center, July 12024.