NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2019

The American Bar Association’s Criminal Justice Section will soon release its annu­al report on issues, trends, and sig­nif­i­cant changes in America’s crim­i­nal jus­tice sys­tem. The new pub­li­ca­tion, The State of Criminal Justice 2019, includes a chap­ter by Ronald J. Tabak, chair of the Death Penalty Committee of the ABA’s Section of Civil Rights and Social Justice, describ­ing sig­nif­i­cant death penal­ty cas­es and cap­i­tal pun­ish­ment devel­op­ments over the past year. Tabak’s death-penal­ty chap­ter high­lights the long-term down­ward trend in death sen­tences and exe­cu­tions, which have remained near his­toric lows for four years.

On sen­tenc­ing, Tabak notes that “[t]he num­ber of death sen­tences imposed between 2015 and 2018 was half the num­ber imposed in the pre­ced­ing four years,” and that “[f]or the first year since the death penal­ty resumed after Furman v. Georgia, there was not in 2018 a sin­gle coun­ty in the entire United States in which more than two death sen­tences were imposed.” He attrib­ut­es some of this reduc­tion to the elec­tion of reform pros­e­cu­tors in for­mer­ly heavy-use areas, includ­ing Philadelphia, Pennsylvania and Houston (Harris County, Texas). On exe­cu­tions, he also point­ed out that num­bers remained near his­toric lows, with 2018 mark­ing the fourth year in a row with few­er than 30 exe­cu­tions. Those exe­cu­tions were high­ly geo­graph­i­cal­ly con­cen­trat­ed, with half in Texas alone, and 88% occur­ring in just five states – Texas (13), Tennessee (3), Alabama (2), Florida (2), and Georgia (2).

In dis­cussing his chap­ter, Tabak — who is also a long-time mem­ber of the Steering Committee of the ABA’s Death Penalty Representation Project — attrib­uted part of the decline in new death sen­tences to improve­ments in tri­al-lev­el cap­i­tal rep­re­sen­ta­tion in some of the his­tor­i­cal­ly high­er-use death-penal­ty states. However, he notes that those improve­ments have not ben­e­fit­ted those now fac­ing exe­cu­tion who were pro­vid­ed sub­stan­dard rep­re­sen­ta­tion in the past and have been blocked by legal tech­ni­cal­i­ties from obtain­ing court review of their claims. The out­come of a cap­i­tal case, he told the Journal, ​“depends less on what you did and more on the qual­i­ty of your defense coun­sel, the nature of the pros­e­cu­tors’ atti­tudes toward and man­ner of pur­su­ing the death penal­ty, and the way in which the court sys­tem deals with your constitutional claims.”

Tabak’s cap­i­tal-pun­ish­ment chap­ter also cov­ers major events in death-penal­ty news, includ­ing the judi­cial abo­li­tion of Washington’s death penal­ty in 2018, the leg­isla­tive abo­li­tion in New Hampshire in 2019, and California Governor Gavin Newsom’s announce­ment of a mora­to­ri­um in 2019. Public opin­ion polls released in 2018 found that sup­port for cap­i­tal pun­ish­ment remained near record lows, and that respon­dents pre­ferred life with­out parole over cap­i­tal pun­ish­ment when giv­en the option. He sug­gests sev­er­al fac­tors that may be con­tribut­ing to declin­ing pub­lic sup­port includ­ing grow­ing aware­ness of the link between lynch­ing, racial ter­ror­ism, and the death penal­ty, as high­light­ed by the open­ing of the National Memorial for Peace and Justice; increas­ing con­ser­v­a­tive activism against cap­i­tal pun­ish­ment; and the Catholic Church’s updat­ed stance deem­ing the death penal­ty ​“inad­mis­si­ble.” The chap­ter also con­tains a sec­tion devot­ed to major court deci­sions relat­ed to the death penalty. 

The chap­ter ends with a dis­cus­sion of the future of cap­i­tal pun­ish­ment. Tabak con­cludes, ​“Ultimately, our soci­ety must decide whether to con­tin­ue with a penal­ty imple­ment­ed in ways that can­not sur­vive any seri­ous cost/​benefit analy­sis. As more and more peo­ple rec­og­nize that cap­i­tal pun­ish­ment in this coun­try is incon­sis­tent with both con­ser­v­a­tive and lib­er­al prin­ci­ples, and with com­mon sense, the oppor­tu­ni­ty for its abo­li­tion through­out the United States will arrive. Those who already real­ize that our actu­al death penal­ty is like ​‘the emperor’s new clothes’ should do every­thing with a rea­son­able chance of accel­er­at­ing its demise.”