Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty

Posted on Jul 01, 2024

Read the Full Report Press Release

Key Findings Top

  • 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.
     

Illustrative Political Ads Top

The ads below high­light the politi­cized rhetoric about the death penal­ty that is often fea­tured in campaign ads. 

The National Republican Senatorial Committee ran this ad in the 2022 U.S. Senate race for North Carolina, attack­ing can­di­date and for­mer North Carolina Supreme Court Chief Justice Cheri Beasley. The ad accus­es her of vacat­ing a death sen­tence, refer­ring to a land­mark case in which Chief Justice Beasley authored the opin­ion rein­stat­ing the life sen­tence of a man who had received relief under the Racial Justice Act due to racial dis­crim­i­na­tion at his tri­al. This ad was wide­ly crit­i­cized for being mis­lead­ing. However, Beasley ulti­mate­ly lost the race. (See page 19 of the report for more.)
Virginia Republican guber­na­to­r­i­al can­di­date Jerry Kilgore ran this ad against Democrat Tim Kaine in 2005. Mr. Kaine ran a counter ad promis­ing to uphold Virginia’s death penal­ty law, despite his per­son­al oppo­si­tion to cap­i­tal pun­ish­ment. Mr. Kaine defeat­ed Mr. Kilgore by a 5.7 per­cent­age point mar­gin. (See page 40 of the report for more.)
In 2016, inter­est groups spent more than $2.5 mil­lion on ads, mail­ers, and cam­paigns as five of the sev­en jus­tices on the Kansas Supreme Court faced reten­tion. This ad tar­get­ed the jus­tices fac­ing reten­tion elec­tions who had vot­ed to over­turn death sen­tences. In the end, every jus­tice was retained. (See page 13 of the report for more.)

Supplemental Materials Top

In the inter­est of trans­paren­cy and replic­a­bil­i­ty, the Death Penalty Information Center is mak­ing the method­ol­o­gy and data sets from this report publicly available.

Lethal Election Methodology (Microsoft Word doc­u­ment): Describes the process of cre­at­ing the data sets and the sta­tis­ti­cal analy­ses that were used to reach the con­clu­sions in the report.

Lethal Election Methodology (PDF): Describes the process of cre­at­ing the data sets and the sta­tis­ti­cal analy­ses that were used to reach the con­clu­sions in the report.

Clemency data (CSV file): The data used to ana­lyze pat­terns in grants of clemen­cy, cov­er­ing the time peri­od of 1976 to 2024.

Judicial data (CSV file): The data used to ana­lyze pat­terns in state supreme court rul­ings. This file presents case-lev­el data from 2013 – 2022.

Judicial data by elec­tion year (CSV file): Using the same infor­ma­tion as above, this aggre­gat­ed data set allows for eas­i­er analy­sis by election year.