NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2022

The American Bar Association’s Criminal Justice Section has released its annu­al report, The State of Criminal Justice 2022, 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. Tabak reviews the state of the death penal­ty in the United States and con­cludes that cap­i­tal pun­ish­ment could see a fun­da­men­tal change because of a com­bi­na­tion of pre-pan­dem­ic trends, back­lash to the rash of fed­er­al exe­cu­tions at the end of the Trump pres­i­den­cy, and sig­nif­i­cant changes to the com­po­si­tion of the U.S. Supreme Court.

Tabak dis­cuss­es ris­ing oppo­si­tion to the death penal­ty as mea­sured by nation­al and state-lev­el pol­ing. In addi­tion to back­lash against the fed­er­al exe­cu­tion spree, he cred­its this trend to ​“wide­spread report­ing of more cas­es in which inno­cent peo­ple had been sen­tenced to death, racial dis­crim­i­na­tion in imple­ment­ing the death penal­ty, and the grow­ing aware­ness of prob­lems with long­stand­ing police and prosecution practices.”

Tabak high­lights a par­tic­u­lar demo­graph­ic whose shift towards abo­li­tion has affect­ed the use of the death penal­ty: con­ser­v­a­tives. For exam­ple, in 2020 the gov­er­nor of Ohio, a Republican, announced a mora­to­ri­um on exe­cu­tions because of con­cerns about lethal injec­tion. In 2021, the same gov­er­nor signed a bill pre­clud­ing the exe­cu­tion of indi­vid­u­als who were seri­ous­ly men­tal­ly ill at the time of the crime. Tabak also notes the active role Republicans are tak­ing in abol­ish­ing or restrict­ing the death penal­ty in states like Kentucky, Georgia, Missouri, Kansas, and Pennsylvania, and the work of advo­ca­cy groups such as Conservatives Concerned About the Death Penalty.

While Tabak views Ohio’s statute bar­ring the exe­cu­tion of the men­tal­ly ill as a pos­si­ble bell­wether for pas­sage of sim­i­lar laws in oth­er states, he empha­sizes that there is a size­able num­ber of peo­ple with severe men­tal ill­ness who have been exe­cut­ed or are still fac­ing exe­cu­tion. Tabak writes, ​“Executed inmates had notably high­er rates of diag­nosed schiz­o­phre­nia, post­trau­mat­ic stress dis­or­der, and bipo­lar dis­or­der.” Additionally, jurors some­times view men­tal ill­ness as an aggra­vat­ing fac­tor rather than a mit­i­gat­ing cir­cum­stance because of their own implic­it bias­es as well as ​“mis­lead­ing or oth­er­wise inad­e­quate jury instructions.”

Tabak also empha­sizes sig­nif­i­cant issues in both the post-con­vic­tion and clemen­cy process­es. Death row pris­on­ers are often unable to be heard on the mer­its of their case because of pro­ce­dur­al bar­ri­ers. ​“Where evi­dence cast­ing doubt on the con­sti­tu­tion­al­i­ty of a con­vic­tion emerges only after the ini­tial state post­con­vic­tion pro­ceed­ing has con­clud­ed, it is extra­or­di­nar­i­ly dif­fi­cult to get the new­ly uncov­ered evi­dence con­sid­ered by any court on its mer­its,” writes Tabak. Courts are unlike­ly to allow new DNA test­ing even while some indi­vid­u­als sit on death row because of now-debunked ​“junk sci­ence,” such as bite mark evidence.

These bar­ri­ers have been rein­forced by the U.S. Supreme Court — in May 2022, the Court held in Shinn v. Martinez Ramirez ​“that there is no fed­er­al con­sti­tu­tion­al right to raise in one’s first fed­er­al habeas cor­pus pro­ceed­ing a claim that tri­al coun­sel and state post­con­vic­tion coun­sel were inef­fec­tive if state law requires that the claim be raised in state court pro­ceed­ings.” Tabak pre­dicts that the rul­ing ​“will result in more exe­cu­tions of peo­ple uncon­sti­tu­tion­al­ly con­vict­ed or sen­tenced to death.”

Tabak crit­i­cizes the clemen­cy process as well, argu­ing, ​“Most clemen­cy author­i­ties seem like­ly to keep hid­ing behind the fic­tion that some­where along the way, judges or juries already have ful­ly con­sid­ered all facts rel­e­vant to a fair deter­mi­na­tion of whether a per­son should be executed.” 

In his assess­ment of the future of the death penal­ty, Tabak writes, ​“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 in many more states will arrive.” He con­cludes with a call to those already opposed to the death penal­ty to con­tin­ue to work for its abolition.