NEW RESOURCE: American Bar Association Reports on Capital Punishment and the State of Criminal Justice 2024

The American Bar Association’s Criminal Justice Section has announced its forthcoming annual report, The State of Criminal Justice 2024, examining the state of the American criminal legal system.

The annual publication includes a chapter devoted to significant developments in capital punishment, authored by Ronald J. Tabak, co-chair of the Death Penalty Committee of the ABA’s Section of Civil Rights and Social Justice and a longtime member of the Steering Committee of the ABA’s Death Penalty Representation Project. Mr. Tabak’s analysis highlights the continuing downward trend in death sentences and executions, as well as historically low public support of the death penalty; the impact of the U.S. Supreme Court in death penalty cases; and the continued push for death penalty reform at the local level.

Mr. Tabak highlights the few jurisdictions within the United States that continue to actively use the death penalty today. In 2023, just five of the 27 states that allow executions carried them out: Texas, Florida, Missouri, Oklahoma, and Alabama. Just seven states sentenced people to death in 2023: Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas. For the first time since 1977, the number of people executed was greater than the total number of new death sentences. These declines can be attributed to a decline in public support for the death penalty, fewer prosecutors actively seeking death sentences, better quality and availability of defense attorneys, and reforms to sentencing procedures. Mr. Tabak writes that because of these changes, “many people who are executed now would not be sentenced to death or, if death-sentenced, would not be executed if their cases had begun in recent years.” It is increasingly more common for former capital jurors to say that “they would not have voted to impose the death sentence if they had known” about evidence that is belatedly presented in postconviction or clemency proceedings. Because of this, Mr. Tabak writes that “we continue to have executions that seem contrary to today’s standards of decency. Public opinion also reflects this concern. In a November 2023 poll, Gallup found for first time that more Americans believe the death penalty is applied unfairly (50%) than that it is applied fairly (47%).

Despite the public’s increasing distrust of the capital punishment system, Mr. Tabak writes that the U.S. Supreme Court “is considerably less likely than in the past to rule in favor of the types of claims often made by death row inmates.” The highest court has repeatedly refused to stop executions, even cases raising significant misconduct or novel claims. In April 2024, the Court refused to hear the cases of both Dillon Compton and Kurt Michaels. Mr. Compton alleges that Texas prosecutors illegally struck 13 of 15 prospective female jurors because of their gender, while Mr. Michaels alleged that California police unlawfully questioned him after invoking his Miranda rights, leading to an eventual confession and conviction. Justices Ketanji Brown Jackson and Sonia Sotomayor dissented in both cases. Justice Jackson wrote that “courts must be careful to [protect constitutional rights], perhaps especially when evaluating errors made in cases stemming from a terrible crime.”

Mr. Tabak also notes the increasing number of state actors working to reform current death penalty systems. In Ohio, the number of legislators in both houses who have co-sponsored a death penalty abolition bill increased during 2023. Mr. Tabak writes that despite this increase, “the only person elected to statewide office in Ohio who favors executions continues to be Attorney General Dave Yost” who has “denounced other state leaders for failing to do anything about what Yost said was Ohio’s costly and ineffective capital punishment system.” In February 2023, Pennsylvania Governor Josh Shapiro announced a continuation of the state’s execution moratorium and urged the legislature to pass a bill abolishing capital punishment in Pennsylvania. In April 2023, Washington Governor Jay Inslee signed a bill that formally abolished the state’s death penalty law and removed provisions in the state law that allowed the use of capital punishment.

Assessing the future of the death penalty in the United States, Mr. Tabak writes that “those who have long believed that the capital punishment system will disappear from American society can draw hope from one consistent factor that has been essential to the tremendous decline in the capital punishment system thus far: The more that most people learn about how capital punishment actually functions, the more they will oppose it.” Mr. Tabak adds that “we have even seen this in the evolving attitudes of many Justices and judges as they are exposed to more and more capital cases.” He closes with a call for serious analysis and hard work, rather than optimism, in efforts to amend the capital punishment system.