New Podcast: Professor Frank Baumgartner on Death-Penalty Data, Public Opinion, and Capital Punishment as a ​“Failed Experiment”

In the September 2021 episode of Discussions With DPIC, University of North Carolina – Chapel Hill polit­i­cal sci­en­tist Frank Baumgartner (pic­tured), one of the nation’s lead­ing aca­d­e­m­ic author­i­ties on the death penal­ty, joins Death Penalty Information Center Executive Director Robert Dunham to dis­cuss what research has shown about the impact of race, gen­der, and geog­ra­phy in cap­i­tal cas­es and the cur­rent his­tor­i­cal­ly low lev­el of pub­lic sup­port for cap­i­tal pun­ish­ment. Asked what 50 years of data tell us about the pos­si­bil­i­ty of death-penal­ty pol­i­cy reform, Baumgartner says, ​“At this stage, what we real­ly need to do is admit that [cap­i­tal pun­ish­ment] is a failed experiment.”

Baumgartner is UNC’s Richard J. Richardson dis­tin­guished pro­fes­sor of polit­i­cal sci­ence and the lead author of the 2018 book Deadly Justice, a ground­break­ing sta­tis­ti­cal analy­sis of the mod­ern U.S. death penal­ty. He also recent­ly pub­lished an analy­sis in The Washington Post of more than 75 years of pub­lic opin­ion sur­veys on U.S. atti­tudes about the death penal­ty. In their wide-rang­ing con­ver­sa­tion, Dunham and Baumgartner talk about what those stud­ies found, ongo­ing arbi­trari­ness, capri­cious­ness, and dis­crim­i­na­tion in death sen­tences and exe­cu­tions, and future trends for pol­i­cy on capital punishment.

Baumgartner describes the death penal­ty as an issue unique­ly prone to ​“high emo­tion­al stakes and some­times fear­mon­ger­ing.” Baumgartner explains. ​“I can put every pat­tern and sta­tis­ti­cal fact on the table and some­body else might put one anec­dote or one exam­ple on the table. Sometimes that one exam­ple, in the eyes of some deci­sion mak­ers, will be more impor­tant than a ton of data.” Nonetheless he believes that the cumu­la­tive weight of the data has become an increas­ing­ly com­pelling fac­tor in deci­sion mak­ing on crim­i­nal legal issues. ​“There’s so many para­dox­es of poor admin­is­tra­tion of jus­tice with regards to the death penal­ty that I think that laun­dry list of prob­lems has begun to have some impact in pub­lic pol­i­cy cir­cles,” he says. 

Dunham and Baumgartner also dis­cuss the polit­i­cal impli­ca­tions of his study of pub­lic opin­ion about the death penal­ty. Looking at changes in respons­es to fre­quent­ly asked poll ques­tions about cap­i­tal pun­ish­ment, Baumgartner cre­at­ed an index of pub­lic sup­port for the death penal­ty. Death-sen­tenc­ing and exe­cu­tion trends have tend­ed to close­ly track the changes in the index. Support for cap­i­tal pun­ish­ment, Baumgartner found, is the weak­est it has been since the 1960s, in the lead-up to the U.S. Supreme Court deci­sion strik­ing down all exist­ing death-penal­ty statutes in 1972. ​“Public opin­ion has moved fur­ther away from the death penal­ty [than] at any time in the last 50 years. […] It’s main­stream not to be enthu­si­as­tic about the death penalty.”

Though President Biden said dur­ing the pres­i­den­tial elec­tion cam­paign that he would work to end the fed­er­al death penal­ty, he has failed to take any action on com­mut­ing the death sen­tences of those on fed­er­al death row — a step Baumgartner said in his Washington Post analy­sis ​“could end the fed­er­al death penal­ty for a gen­er­a­tion.” Asked what polit­i­cal mes­sage President Biden should take from the index of death penal­ty opin­ion, Baumgartner replied: ​“He should take the mes­sage that it’s polit­i­cal­ly safe. It’s the most pro­pi­tious time in recent American his­to­ry. … I think the President should take from that, that it’s polit­i­cal­ly safe, it’s politically acceptable.”

In his stud­ies of the U.S. death penal­ty, Baumgartner has close­ly reviewed data on the demo­graph­ics of U.S. death sen­tenc­ing and exe­cu­tion prac­tices. ​“With 50 years of expe­ri­ence now since 1972, we can con­fi­dent­ly say that the death penal­ty has not been applied fair­ly,” he told Dunham. ​“We can’t guar­an­tee equal pro­tec­tion of the law, equal appli­ca­tion of the death penal­ty, even with­in a sin­gle state or in the fed­er­al sys­tem. It’s riv­en by flaws asso­ci­at­ed with race and class, men­tal ill­ness, vul­ner­a­bil­i­ties on the side of the defen­dant, and social sta­tus on the side of the victim.” 

Death sen­tences are exceed­ing­ly rare as a per­cent­age of the more than a mil­lion U.S. mur­ders since the 1970s, Baumgartner explains. Even so, how­ev­er, it is not nar­row­ly reserved for the ​“worst of the worst” cas­es. Rather, he says, death sen­tences are affect­ed by racial and gen­der bias, geo­graph­ic arbi­trari­ness, and the caprice of time. The data demon­strate that pur­suit of the death penal­ty is ​“much more com­mon when the vic­tim is a white female and it’s much less com­mon when the vic­tim is a Black male,” and it is even more dis­pro­por­tion­al­ly pur­sued and imposed in the sta­tis­ti­cal­ly rare cas­es of inter­ra­cial mur­der that involve a Black male defen­dant and a white female victim. 

Baumgartner says the geog­ra­phy of death sen­tenc­ing — with cap­i­tal pros­e­cu­tions and sen­tenc­ing out­comes quite lit­er­al­ly depend­ing on what side of the coun­ty line a mur­der occurred — is the biggest fac­tor that per­suad­ed him that the death penal­ty is at least as arbi­trary and capri­cious now as it was when the Supreme Court struck down cap­i­tal pun­ish­ment in 1972. ​“Even with­in the same state, the rates of use of the death penal­ty [from coun­ty to coun­ty] are, as far as I can tell, they’re non­sen­si­cal. It’s not that they’re used in those coun­ties that have high­er crime rates. There’s very lit­tle rhyme or rea­son to it.” Among coun­ties, he says, ​“there real­ly are very very dif­fer­ent like­li­hoods of the use of the death penal­ty, for rea­sons that have noth­ing to do with the crime, but they have every­thing to do with who’s the dis­trict attor­ney and what’s the his­to­ry of the use of the death penal­ty in that particular county.”

There is also sig­nif­i­cant dis­par­i­ty in death penal­ty out­comes depend­ing upon the capri­cious­ness of the decade in which a mur­der occurred. ​“Was the crime in the mid 1990s? If so, it’s prob­a­bly got at least five times more chance of being fol­lowed by a death sen­tence than if it occurred in the 2010s,” Baumgartner said. The sta­tis­tics, he says, sug­gest that in many cas­es, a per­son who com­mit­ted a crime in the 1990s and was tried in the 1990s would be sen­tenced to death but, the same crime or a very sim­i­lar crime com­mit­ted and tried today would be much more like­ly to result in a life sentence.

Baumgartner says that with the focus of Supreme Court deci­sions on ​“mak­ing sure that [the death penal­ty is] applied pro­por­tion­ate­ly only to the most deserv­ing offend­ers for the most heinous crimes, you would like to think that … we would have got­ten it right. But in fact, we have not got­ten it right. It’s not reserved for the worst crim­i­nals who have com­mit­ted the worst crimes. There’s so many flaws in it that I think the use of data should not real­ly be focused on, let’s tar­get the death penal­ty more appro­pri­ate­ly to the most deserv­ing offend­ers. We’ve tried that,” Baumgartner says. Instead, he says, ​“You can just have an argu­ment that says, this thing is bro­ken, it costs too much, and it doesn’t work very well. I’m going to get rid of it, just like I would get rid of any oth­er pub­lic pol­i­cy that doesn’t work.”