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.