NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2023

The American Bar Association’s Criminal Justice Section has announced its forth­com­ing annu­al report, The State of Criminal Justice 2023, 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; geo­graph­ic fac­tors that con­tribute to the arbi­trary appli­ca­tion of cap­i­tal pun­ish­ment; the impact of the U.S. Supreme Court in death row cas­es; and the con­tin­ued push for death penal­ty reform at the local level.

Mr. Tabak high­lights the few juris­dic­tions with­in the United States that have active­ly used the death penal­ty from 1977 to 2021. Just 34 of the country’s more than 3,000 coun­ties ​“had sen­tenced to death half of those then on state death rows in the United States and only 2% of coun­ties had sen­tenced 60.8% of those on state death rows in the United States.” Despite this low­ered usage of the death penal­ty across the United States, three states, Texas, Oklahoma, and Virginia, which abol­ished the death penal­ty in 2021, account for more than half of all state exe­cu­tions since 1977. This con­tin­ued geo­graph­ic iso­la­tion of death sen­tences has not alle­vi­at­ed sys­tem­at­ic unfair­ness. Quoting promi­nent cap­i­tal pun­ish­ment experts, Mr. Tabak includes that ​“the already pro­nounced geo­graph­ic con­cen­tra­tion of exe­cu­tions in a few active death penal­ty states” will be fur­ther exac­er­bat­ed by the U.S. Supreme Court’s con­tin­ued decline to issue stays of execution.

Notwithstanding the U.S. Supreme Court’s inac­tion in grant­i­ng stays of exe­cu­tions, the Court has issued impor­tant rul­ings in oth­er death penal­ty cas­es. In April 2023, the Court issued a rul­ing revers­ing the ​“Fifth Circuit’s hold­ing that Texas death row [pris­on­er] Rodney Reed was barred by the statute of lim­i­ta­tion from pur­su­ing his effort to get access to and have test­ed DNA evi­dence that could exon­er­ate him.” In an opin­ion writ­ten by Justice Kavanaugh and joined by Chief Justice Roberts, and Justices Kagan, Sotomayor, Barrett, and Jackson, the Court states that Texas’ ​“alleged fail­ure to pro­vide Reed with a fun­da­men­tal­ly fair process was com­plete when state lit­i­ga­tion end­ed and deprived Reed of his assert­ed lib­er­ty inter­est in DNA test­ing.” With the Court’s deci­sion, Mr. Reed will have the oppor­tu­ni­ty to con­tin­ue lit­i­gat­ing his DNA test­ing request at the state level. 

Mr. Tabak also notes the increas­ing num­ber of state actors, includ­ing gov­er­nors and elect­ed offi­cials, work­ing to reform cur­rent death penal­ty sys­tems. In 2021, the gov­er­nor of Ohio, Michael DeWine, signed leg­is­la­tion that pre­cludes the exe­cu­tion of those with seri­ous men­tal ill­ness. In April 2022, Kentucky gov­er­nor Andy Beshear signed sim­i­lar leg­is­la­tion, nar­row­ing death penal­ty eli­gi­bil­i­ty for those with severe men­tal ill­ness. Both of these bills were enact­ed with bipar­ti­san sup­port. In ear­ly 2023, the Florida leg­is­la­ture passed a bill that if upheld by the U.S. Supreme Court, would per­mit non-unan­i­mous jury rec­om­men­da­tions for death sen­tences with an 8‑juror major­i­ty. According to Mr. Tabak, this new law ​“would make it much eas­i­er to impose death sen­tences and to exe­cute peo­ple who could not have been sen­tenced to death under the Constitution as con­strued by the U.S. Supreme Court” and its deci­sion in Hurst v. Florida, which pre­vi­ous­ly found Florida’s non-unan­i­mous sen­tenc­ing scheme unconstitutional. 

Assessing the future of the death penal­ty in the United States, Mr. Tabak writes ​“the more that peo­ple know about the death penal­ty as actu­al­ly imple­ment­ed, the more they oppose it. The actu­al cap­i­tal pun­ish­ment sys­tem in the United States can be jus­ti­fied only if one believes in arbi­trar­i­ly and capri­cious­ly applied, high­ly errat­ic vengeance. More and more peo­ple are real­iz­ing that the typ­i­cal pro-death penal­ty argu­ments, which focus on a the­o­ret­i­cal but non-exis­tent cap­i­tal pun­ish­ment sys­tem, are com­plete­ly irrel­e­vant.” He clos­es with a call for those who already oppose the death penal­ty to con­tin­ue work towards its abolition.