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

Posted on Jul 01, 2024

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Key Findings Up

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 Up

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 Up

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.