DPI Report Provides Valuable Context for 2024 Elections

As vot­ers across the United States cast their bal­lots on elec­tion day, the Death Penalty Information Center’s July 2024 report, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty, pro­vides valu­able con­text on the inter­sec­tion of pol­i­tics and the death penalty. 

While all eyes are on the race for U.S. President, it is local races for pros­e­cu­tor, state judge, leg­is­la­tor, and gov­er­nor that will decide whether and how the death penal­ty is used. The President only has juris­dic­tion over fed­er­al death penal­ty cas­es, which cur­rent­ly rep­re­sent about 2% of all death row pris­on­ers and 1% of all exe­cu­tions car­ried out in the U.S. since 1976. He or she selects the Attorney General, who deter­mines whether to seek death sen­tences in eli­gi­ble fed­er­al cas­es and how to defend exist­ing fed­er­al death sen­tences. The President also has clemen­cy pow­er for peo­ple con­vict­ed of fed­er­al crimes, includ­ing those on fed­er­al death row. 

Meanwhile, vot­ers in 33 states, includ­ing 23 states that have the death penal­ty, will elect or decide whether to retain state supreme court jus­tices on elec­tion day 2024. As explained in Lethal Election, ​“A 2015 Reuters inves­ti­ga­tion found that state supreme courts with appoint­ed judges are more than twice as like­ly to reverse death sen­tences as state supreme courts with elect­ed judges, a dif­fer­ence of 26% to 11%. In oth­er words, a death-sen­tenced pris­on­er in a state where judges must cam­paign for reelec­tion has a much low­er chance of win­ning relief on appeal.” DPI’s analy­sis of state supreme court deci­sions in three states from 2013 – 2022 found that ​“courts affirmed about twice the num­ber of death sen­tences in elec­tion years com­pared to non-elec­tion years, a medi­an of 6 ver­sus 3 death sen­tences. …These find­ings sug­gest that state supreme court jus­tices are more like­ly to rule against death-sen­tenced pris­on­ers when fac­ing the increased scruti­ny and pres­sures of an upcoming election.” 

Local pros­e­cu­tors will be elect­ed in at least one coun­ty per state in 14 death penal­ty states. The U.S. is the only coun­try in the world to elect local pros­e­cu­tors. These elect­ed offi­cials have enor­mous dis­cre­tion in whether and when to seek death sen­tences. Changes of dis­trict attor­ney in coun­ties that once led the nation in death sen­tences, includ­ing Philadelphia, PA; Los Angeles, CA; and Harris, TX have result­ed in dra­mat­ic declines in the num­ber of new death sentences. 

DPI’s research also found that clemen­cy deci­sions by gov­er­nors were affect­ed by elec­tions. Examining all grants of indi­vid­ual clemen­cy since 1972, a major­i­ty (53.6%) occurred when the gov­er­nor was not fac­ing reelec­tion. When the exec­u­tive had the sole pow­er to grant clemen­cy, that per­cent­age jumped to 84.6%. ​“This means that exec­u­tives with sole author­i­ty to grant clemen­cy almost exclu­sive­ly used their pow­er when they did not have to face vot­ers. When they did face reelec­tion, these exec­u­tives grant­ed indi­vid­u­als clemen­cy only four times over five decades.” 

“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.”