NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2021

The American Bar Association’s Criminal Justice Section has released its annu­al report, The State of Criminal Justice 2021, exam­in­ing major issues, trends, and sig­nif­i­cant changes in America’s crim­i­nal justice system. 

The annu­al bar pub­li­ca­tion includes a chap­ter devot­ed to sig­nif­i­cant devel­op­ments in cap­i­tal pun­ish­ment, authored by Ronald J. Tabak, 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. Tabak’s analy­sis high­lights the effects of the Trump administration’s unprece­dent­ed fed­er­al exe­cu­tion spree, the his­toric repeal of cap­i­tal pun­ish­ment in Virginia, the impact of the COVID-19 pan­dem­ic on the con­tin­u­ing long-term down­ward trend in death sen­tences and exe­cu­tions across the U.S., and the decrease in pub­lic sup­port for capital punishment.

“After 17 years in which the fed­er­al gov­ern­ment did not exe­cute any­one, it exe­cut­ed 13 peo­ple between July 2020 and January 15, 2021 — includ­ing three in the final full week of President Trump’s term,” Tabak writes. He argues that the ​“unprece­dent­ed” exe­cu­tion spree ​“accel­er­at­ed the public’s already increased under­stand­ing of major sys­temic prob­lems with cap­i­tal pun­ish­ment,” ener­giz­ing oppo­si­tion to cap­i­tal pun­ish­ment and join­ing with the emer­gent racial jus­tice move­ment to con­tribute to the repeal of Virginia’s death penal­ty. Tabak notes that the lead Senate spon­sor of Virginia’s repeal bill called the link between racial ter­ror lynch­ings and the death penalty’s advent ​“unde­ni­able,” and Governor Ralph Northam cit­ed the Commonwealth’s exten­sive his­to­ry of racial dis­crim­i­na­tion in the use of cap­i­tal pun­ish­ment as one of the key rea­sons to abolish it.

Racial jus­tice efforts also received a boost in North Carolina, Tabak wrote, with sev­er­al deci­sions by the North Carolina Supreme Court bar­ring the state legislature’s attempt to retroac­tive­ly repeal rights grant­ed to the state’s death-row pris­on­ers under the North Carolina Racial Justice Act. The court’s actions restored grants of relief tri­al courts had issued to four death-row pris­on­ers as a result of the role of racial dis­crim­i­na­tion in their tri­als and allowed Racial Justice Act claims to move for­ward for more than 140 other cases.

Tabak reports that before the pan­dem­ic hit in March 2020, ​“new state death sen­tences were trend­ing low­er than the total of 34 in 2019 and end­ed the year at 18,” the low­est in any year dur­ing the mod­ern era of the death penal­ty. However, the extent of the decline in 2020 was due in part to ​“the effect of the pan­dem­ic on courts, judges, police, court offi­cers, and wit­ness­es for both sides,” which halt­ed cap­i­tal tri­als and oth­er pro­ceed­ings in cap­i­tal cas­es. Executions by states were also con­tin­u­ing their long-term down­ward trend ear­ly in 2020 even before they stopped alto­geth­er in July 2020 because of the pandemic. 

Tabak’s cap­i­tal pun­ish­ment chap­ter also dis­cuss­es the con­tin­ued down­ward trend in pub­lic sup­port for the death penal­ty. National poll results, he writes, reflect that “[p]ublic sup­port for the death penal­ty had declined to its low­est lev­el in decades, and for the first time, when Gallup asked whether the pub­lic pre­ferred cap­i­tal pun­ish­ment or life with­out parole (LWOP), LWOP was select­ed by a significant majority.” 

Tabak attrib­ut­es the decrease in pub­lic sup­port for cap­i­tal pun­ish­ment to the ​“greater appre­ci­a­tion of major prob­lems with the death penalty’s imple­men­ta­tion,” espe­cial­ly after the dra­mat­ic fed­er­al exe­cu­tion spree. ​“Increasingly, the death penal­ty in prac­tice has been attacked by peo­ple who have served in the judi­cia­ry or law enforce­ment, tak­en part in exe­cu­tions, writ­ten death penal­ty laws, or are polit­i­cal­ly con­ser­v­a­tive,” as well as sev­er­al influ­en­tial reli­gious lead­ers, he wrote. 

The past year also brought about ​“enhanced pub­lic sup­port for the con­cept that Black lives mat­ter,” which Tabak says has fur­ther sparked aware­ness of and out­rage about the racial bias inher­ent­ly linked to the death penal­ty. The chap­ter also con­tains sec­tions devot­ed to recent exon­er­a­tions, ques­tion­able exe­cu­tions, and major court deci­sions in capital cases.

Tabak ends the chap­ter with a dis­cus­sion of the future of the death penal­ty. 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, he con­cludes, “[O]ur soci­ety must decide whether to con­tin­ue with a penal­ty imple­ment­ed in ways that can­not sur­vive any seri­ous cost/​benefit analysis.”