In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with Leah Roemer, DPIC’s Legal Fellow and a pri­ma­ry author of our recent report, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty. Leah grad­u­at­ed from Berkeley Law in 2023, where she par­tic­i­pat­ed in the Death Penalty Clinic and earned a cer­tifi­cate in Public Interest and Social Justice. Leah dis­cuss­es how some judges, pros­e­cu­tors, and politi­cians alter their behav­ior in cap­i­tal cas­es while run­ning for office, cre­at­ing unpre­dictabil­i­ty and incon­sis­tent out­comes for peo­ple fac­ing death sen­tences. However, she explains that the ​“accept­ed polit­i­cal wis­dom” about the death penal­ty — that an offi­cial must take a pro-death stance to win an elec­tion — no longer appears to be true based on DPIC’s research, as many vot­ers now favor can­di­dates will­ing to crit­i­cize or even oppose capital punishment.

The Lethal Election report found that elect­ed state supreme court jus­tices affirmed twice the num­ber of death penal­ty cas­es in elec­tion years com­pared to oth­er years, a result that was sta­tis­ti­cal­ly sig­nif­i­cant when con­trol­ling for the num­ber of cas­es heard each year. ​“Our judi­cial sys­tem rests on an assump­tion of impar­tial­i­ty,” Leah says, but there is ​“a ten­sion between the expec­ta­tions of an elec­tion and the expec­ta­tion of impar­tial­i­ty.” When judges are forced to cam­paign on their past record, raise mon­ey, and make promis­es for the future, they may rule more harsh­ly in death penal­ty cas­es in an attempt to appeal to vot­ers. DPIC’s research sug­gests that all facts of the cas­es being equal, a pris­on­er appeal­ing a death sen­tence in a judi­cial elec­tion year is more like­ly to lose than a pris­on­er who appeals in a non-election year.

The report also details how exec­u­tive offi­cials are more like­ly to grant clemen­cy in death penal­ty cas­es when not up for reelec­tion. In places where exec­u­tives have sole author­i­ty to grant clemen­cy, DPIC found that 85% of indi­vid­ual clemen­cy grants occurred when the exec­u­tive was not fac­ing reelec­tion. ​“That sug­gests, I think, a strong polit­i­cal influ­ence, that they were afraid of mak­ing those grants when they did have to face vot­ers, and they believed that vot­ers would pun­ish them for grant­i­ng clemen­cy,” Leah says.

However, Leah empha­sizes that there was ​“no evi­dence that vot­ers respond­ed neg­a­tive­ly to an anti-death penal­ty posi­tion,” includ­ing clemen­cy grants. In fact, DPIC ​“found evi­dence of the oppo­site”: some places that ​“his­tor­i­cal­ly were huge bas­tions of cap­i­tal pun­ish­ment,” like Harris County, Texas, now elect pros­e­cu­tors who crit­i­cize the death penal­ty and use it spar­ing­ly. Recent polling in Harris County, which his­tor­i­cal­ly has exe­cut­ed more peo­ple than any oth­er coun­ty in America, shows that only 20% of res­i­dents favor the death penal­ty as a pun­ish­ment for mur­der when life with­out parole and life with parole are avail­able. ​“This evi­dence real­ly under­cuts what had been seen, I think, as a core part of the polit­i­cal play­book for so many decades,” Leah concludes.

To learn more, lis­ten to the lat­est episode of Discussions with DPIC. Read Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty. 

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