New Resources: Capital Punishment and the State of Criminal Justice 2020

The American Bar Association’s Criminal Justice Section has released The State of Criminal Justice 2020, its annu­al report on issues, trends, and sig­nif­i­cant changes in America’s crim­i­nal jus­tice sys­tem. The ABA book includes a chap­ter on sig­nif­i­cant cap­i­tal pun­ish­ment devel­op­ments over the past year, authored by Ronald J. Tabak, chair of the Death Penalty Committee of the ABA’s Section of Civil Rights and Social Justice. Tabak’s analy­sis high­lights the con­tin­u­ing long-term down­ward trend in death sen­tences and exe­cu­tions; geo­graph­ic, racial, and eco­nom­ic fac­tors that, he says, con­tribute to its arbi­trary appli­ca­tion; and the decrease in pub­lic sup­port for its use.

Tabak writes that ​“2019 was the fifth straight year with few­er than 30 exe­cu­tions” and few­er than fifty new death sen­tences. He notes that death penal­ty usage con­tin­ues to be geo­graph­i­cal­ly con­cen­trat­ed with­in a small num­ber of juris­dic­tions. “[J]ust sev­en states account­ed for all of the country’s exe­cu­tions,” Tabak reports. Similarly, half of the 34 new death sen­tences were imposed in just three states and few­er than 1% of U.S. coun­ties account­ed for all the new death sen­tences imposed across the nation. 

The decline in death-penal­ty usage was not accom­pa­nied by progress alle­vi­at­ing sys­temic unfair­ness, Tabak wrote. Even as the annu­al num­ber of exe­cu­tions in the United States remained near a three-decade low point and death sen­tences stayed near 40-year lows, Tabak found that ​“there are sig­nif­i­cant ques­tions about the guilt of a grow­ing per­cent­age of the death row pris­on­ers who are exe­cut­ed or whose exe­cu­tion dates are in the near future.”

Tabak — who is a long­time mem­ber of the Steering Committee of the ABA’s Death Penalty Representation Project — attrib­uted part of the decline in new death sen­tences to the increas­ing num­ber of states abol­ish­ing the death penal­ty or plac­ing mora­to­ri­ums on exe­cu­tions. In the past year, two states (New Hampshire and Colorado) abol­ished the death penal­ty, the state with the nation’s largest death-row (California) placed a for­mal mora­to­ri­um on exe­cu­tions, and anoth­er state (Ohio) placed a de fac­to mora­to­ri­um on executions. 

Despite the decline, Tabak said a mul­ti­tude of impor­tant death-penal­ty issues remain, includ­ing the con­tin­u­ing exe­cu­tion of pris­on­ers with his­to­ries of severe men­tal ill­ness, the use of foren­sic evi­dence lack­ing in sci­en­tif­ic valid­i­ty, death sen­tences result­ing from inef­fec­tive­ness rep­re­sen­ta­tion or from courts per­mit­ting ques­tion­able waivers of the right to coun­sel, and the expan­sion of pro­ce­dur­al ​“traps” that pre­vent courts from review­ing issues and grant­i­ng relief even when mer­i­to­ri­ous con­sti­tu­tion­al errors have been uncov­ered. Tabak cites a recent Tennessee study that found that ​“the best pre­dic­tors of whether the death sen­tence would be imposed did not include the facts of the crime, but instead were arbi­trary fac­tors such as where the mur­der occurred, the race of the defen­dant, the qual­i­ty of the defense, and the views of the pros­e­cu­tors and judges work­ing on the case.” 

Tabak’s cap­i­tal pun­ish­ment chap­ter also dis­cuss­es major death penal­ty devel­op­ments such as the fed­er­al government’s plans to resume exe­cu­tions for the first time in 16 years, the life-threat­en­ing risks death-row pris­on­ers face from COVID-19 and the pandemic’s dis­as­trous impact on lawyers’ efforts to inves­ti­gate and present evi­dence essen­tial to clemen­cy appli­ca­tions, and shifts in pub­lic opin­ion on the death penal­ty. Public opin­ion polls in 2019 report­ed that sup­port for cap­i­tal pun­ish­ment remained near record lows and that respon­dents pre­ferred life with­out parole over cap­i­tal pun­ish­ment when giv­en the option. 

Tabak sug­gests that sev­er­al fac­tors may be con­tribut­ing to declin­ing pub­lic sup­port for cap­i­tal pun­ish­ment, includ­ing grow­ing aware­ness of the link between lynch­ing, racial ter­ror­ism, and the death penal­ty; the public’s grow­ing aware­ness that inno­cent peo­ple have been sen­tenced to death and exe­cut­ed; increas­ing con­ser­v­a­tive activism against cap­i­tal pun­ish­ment; the impact of recent doc­u­men­taries, books, and movies in shap­ing cul­tur­al atti­tudes; and the Catholic Church’s updat­ed stance deem­ing the death penal­ty ​“inad­mis­si­ble.” The chap­ter also con­tains a sec­tion devot­ed to major recent court deci­sions in capital cases.

Tabak ends the chap­ter with a dis­cus­sion of the future of cap­i­tal pun­ish­ment. He argues that cap­i­tal pun­ish­ment in the United States can be jus­ti­fied ​“only if one believes in arbi­trar­i­ly and capri­cious­ly applied, high­ly errat­ic vengeance.” ​“Ultimately, our soci­ety must decide whether to con­tin­ue with a penal­ty imple­ment­ed in ways that can­not sur­vive any seri­ous cost/​benefit analy­sis,” he says. ​“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.”