In the September 2021 episode of Discussions With DPIC, University of North Carolina–Chapel Hill political scientist Frank Baumgartner (pictured), one of the nation’s leading academic authorities on the death penalty, joins Death Penalty Information Center Executive Director Robert Dunham to discuss what research has shown about the impact of race, gender, and geography in capital cases and the current historically low level of public support for capital punishment. Asked what 50 years of data tell us about the possibility of death-penalty policy reform, Baumgartner says, “At this stage, what we really need to do is admit that [capital punishment] is a failed experiment.”

Baumgartner is UNC’s Richard J. Richardson distinguished professor of political science and the lead author of the 2018 book Deadly Justice, a groundbreaking statistical analysis of the modern U.S. death penalty. He also recently published an analysis in The Washington Post of more than 75 years of public opinion surveys on U.S. attitudes about the death penalty. In their wide-ranging conversation, Dunham and Baumgartner talk about what those studies found, ongoing arbitrariness, capriciousness, and discrimination in death sentences and executions, and future trends for policy on capital punishment.

Baumgartner describes the death penalty as an issue uniquely prone to “high emotional stakes and sometimes fearmongering.” Baumgartner explains. “I can put every pattern and statistical fact on the table and somebody else might put one anecdote or one example on the table. Sometimes that one example, in the eyes of some decision makers, will be more important than a ton of data.” Nonetheless he believes that the cumulative weight of the data has become an increasingly compelling factor in decision making on criminal legal issues. “There’s so many paradoxes of poor administration of justice with regards to the death penalty that I think that laundry list of problems has begun to have some impact in public policy circles,” he says.

Dunham and Baumgartner also discuss the political implications of his study of public opinion about the death penalty. Looking at changes in responses to frequently asked poll questions about capital punishment, Baumgartner created an index of public support for the death penalty. Death-sentencing and execution trends have tended to closely track the changes in the index. Support for capital punishment, Baumgartner found, is the weakest it has been since the 1960s, in the lead-up to the U.S. Supreme Court decision striking down all existing death-penalty statutes in 1972. “Public opinion has moved further away from the death penalty [than] at any time in the last 50 years. […] It’s mainstream not to be enthusiastic about the death penalty.”

Though President Biden said during the presidential election campaign that he would work to end the federal death penalty, he has failed to take any action on commuting the death sentences of those on federal death row — a step Baumgartner said in his Washington Post analysis “could end the federal death penalty for a generation.” Asked what political message President Biden should take from the index of death penalty opinion, Baumgartner replied: “He should take the message that it’s politically safe. It’s the most propitious time in recent American history. … I think the President should take from that, that it’s politically safe, it’s politically acceptable.”

In his studies of the U.S. death penalty, Baumgartner has closely reviewed data on the demographics of U.S. death sentencing and execution practices. “With 50 years of experience now since 1972, we can confidently say that the death penalty has not been applied fairly,” he told Dunham. “We can’t guarantee equal protection of the law, equal application of the death penalty, even within a single state or in the federal system. It’s riven by flaws associated with race and class, mental illness, vulnerabilities on the side of the defendant, and social status on the side of the victim.”

Death sentences are exceedingly rare as a percentage of the more than a million U.S. murders since the 1970s, Baumgartner explains. Even so, however, it is not narrowly reserved for the “worst of the worst” cases. Rather, he says, death sentences are affected by racial and gender bias, geographic arbitrariness, and the caprice of time. The data demonstrate that pursuit of the death penalty is “much more common when the victim is a white female and it’s much less common when the victim is a Black male,” and it is even more disproportionally pursued and imposed in the statistically rare cases of interracial murder that involve a Black male defendant and a white female victim.

Baumgartner says the geography of death sentencing — with capital prosecutions and sentencing outcomes quite literally depending on what side of the county line a murder occurred — is the biggest factor that persuaded him that the death penalty is at least as arbitrary and capricious now as it was when the Supreme Court struck down capital punishment in 1972. “Even within the same state, the rates of use of the death penalty [from county to county] are, as far as I can tell, they’re nonsensical. It’s not that they’re used in those counties that have higher crime rates. There’s very little rhyme or reason to it.” Among counties, he says, “there really are very very different likelihoods of the use of the death penalty, for reasons that have nothing to do with the crime, but they have everything to do with who’s the district attorney and what’s the history of the use of the death penalty in that particular county.”

There is also significant disparity in death penalty outcomes depending upon the capriciousness of the decade in which a murder occurred. “Was the crime in the mid 1990s? If so, it’s probably got at least five times more chance of being followed by a death sentence than if it occurred in the 2010s,” Baumgartner said. The statistics, he says, suggest that in many cases, a person who committed a crime in the 1990s and was tried in the 1990s would be sentenced to death but, the same crime or a very similar crime committed and tried today would be much more likely to result in a life sentence.

Baumgartner says that with the focus of Supreme Court decisions on “making sure that [the death penalty is] applied proportionately only to the most deserving offenders for the most heinous crimes, you would like to think that … we would have gotten it right. But in fact, we have not gotten it right. It’s not reserved for the worst criminals who have committed the worst crimes. There’s so many flaws in it that I think the use of data should not really be focused on, let’s target the death penalty more appropriately to the most deserving offenders. We’ve tried that,” Baumgartner says. Instead, he says, “You can just have an argument that says, this thing is broken, it costs too much, and it doesn’t work very well. I’m going to get rid of it, just like I would get rid of any other public policy that doesn’t work.”