Transcript
Robert Dunham 0:01
Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. In this episode, I’ll be speaking with Frank Baumgartner, the Richard J. Richardson Distinguished Professor of Political Science at the University of North Carolina Chapel Hill. Professor Baumgartner is a leading researcher on the death penalty and the criminal legal system. He is the author of the 2018 book Deadly Justice: A Statistical Portrait of the Death Penalty, one of the most comprehensive analyses of the modern US death penalty ever written. He recently published an analysis in the Washington Post of nearly a century of public opinion polling on capital punishment. He has also published numerous studies on how race, gender and geography affect death sentences in individual states. Professor Frank Baumgartner, thank you for joining us on Discussions with DPIC.
Frank Baumgartner 0:47
Thanks very much for having me.
Robert Dunham 0:49
You’ve created some of the most comprehensive data sets on the death penalty ever put together in the United States and your analysis of that data has shed a lot of light on significant disparities in the way capital punishment is carried out. But when it comes to the death penalty policy, where so much decision making has been based on myths and propaganda, I’d be curious to find out to what extent you think the facts actually matter. And how do you think data has helped to reshape the current death penalty debate?
Frank Baumgartner 1:20
Well, thanks, Rob. That’s a good question. And I would say that in this area, as in surprisingly many, the death penalty is an example of something more general. And that is, how do non-specialists—that would be US senators, and governors and people in state legislatures, who are not themselves professional experts on a particular policy issue—come to understand that policy issue? Whether it’s climate change, or how to teach 12-year-olds to read in the most efficient manner, or how to deliver health care services in the best way, or any other complicated matter of public policy, it’s a really difficult task to get an elected official or a public leader to really understand the complexities of public policy issues. So we see this in every policy domain, and the death penalty is no exception to that rule. But I would say that the death penalty, like criminal justice in general, is definitely prone to high emotional states and sometimes fear mongering. So putting some facts on the table, I think, can be a healthy antidote, but you also have to recognize that I can put every pattern and statistical fact on the table and somebody else might put one anecdote or one example on the table and sometimes that one example, in the eyes of some decision makers, will be more important than a ton of data.
Robert Dunham 2:53
Have you seen over the years that the data is taking hold, and has been affecting decisions?
Frank Baumgartner 3:00
I think so. Slowly, but surely, I think people have come to understand that the death penalty has all kinds of flaws that aren’t really associated with the abstract notion of the death penalty. But when you look at how the system is actually carried out and practiced across the different states that have the death penalty, it’s … if it weren’t so tragic, I would say it was comical, but it’s not right to say it’s comical, because it’s tragic. 70% of all death sentences solemnly imposed nationwide are later overturned on appeal and while you might say that’s a good thing for the person whose death sentence was commuted or reversed on appeal, what would it be like to have a judge say that you are hereby sentenced by the people of your state to die by lethal injection, and then six years later find out that that’s not really going to happen, you know, you’re no longer under sentence of death? So I think 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 among decision makers.
Robert Dunham 4:16
One of the issues that always comes up in the context of capital punishment in the United States is the issue of race. And our September 2020 report on race and the death penalty tracks several hundred years of racially discriminatory death penalty practices, first in the colonies, and then in the United States. The modern death penalty also continues to show significant evidence of discrimination and I’m interested in your take on this because you looked at the issue across the country, most significantly when it comes to the race and gender of victims. What did you find?
Frank Baumgartner 4:51
Race matters dramatically and in all areas of criminal justice, as in other areas of American public life, but particularly in criminal justice. And I think the simplest way to look at race is to look at the race of the offender. And as your report showed, I mean, the race of the offender has had a big impact, with black offenders being subjected to the death penalty even for crimes historically for which white offenders were not even eligible for death, such as rape, in previous decades before the modern times. When we look at it with regards to the race and gender of the victim of the crime, that’s where we see the biggest differences. And then when we combine the race of the offender with the race of the victim, we find sometimes shockingly large differences in the rate of use of the death penalty. I should say that the death penalty is very rarely used, overall. We’ve had a million homicides in our country, since the modern period of the death penalty began in the mid 1970s. And we’ve had, as you know, about 1500 executions and roughly eight to 9000 death sentences. So 8000 death sentences out of a million, it’s less than 10 in 1000, less than one in 100, and so it’s very rare, but it’s a little, it’s much more common when the victim is a white female and it’s much less common when the victim is a Black male. And this is particularly paradoxical because the people in the United States with the greatest chance of being a victim of homicide are Black males and white females are very rarely the victims of homicide. And yet, when they are in those rare occasions where the victim is a white female, that’s where we see the highest use of the death penalty. So we see all kinds of disturbing patterns of lack of equal justice for all. It really depends on who’s the victim.
Robert Dunham 6:59
So those numbers in my mind starkly illustrate the question of whose lives matter more. And so it looks like there’s almost a white preference, when it comes to victims, whether a case ever starts out as a capital case, and whether it ends up as a capital case. And then once you have that white preference, you then have discrimination on the basis of the race of the defendant as well, in the way in which it’s imposed.
Frank Baumgartner 7:27
Absolutely, and I would add gender. Most homicides occur among men, that is men kill other men, and most homicides occur within men of the same race. It tends to be a young white men kill other young white men and, and similarly among black men. And I think about … as I think, less than 20% of all homicide victims are females and this goes contrary to cultural myths, and I think general understandings, or misunderstandings of the statistics of homicide. Women are not very likely to be the victim of homicide, black or white women, but when they are, there’s an overuse of the death penalty compared to when it’s a male victim. So we have to add race, gender, of victim, both, and then like you say, when, once we control for those things, there’s another racial effect with regards to the race and gender of the perpetrator or the offender. Where … cross racial crimes are quite rare in the United States, most crimes, homicides occur within race. And when there’s a white perpetrator, who kills a black victim, that is extremely rarely followed by a death sentence or capital prosecution and actually, there’s only been a few times when such cases have led to execution in modern history, just a handful and those cases have actually been hate crimes or straight out explicit Aryan Nation, Klu Klux Klan, clearly hate-oriented atrocities. Some states have never executed an individual who was white for the crime of killing a black victim. And on the other hand, when it’s a black perpetrator and a white victim, and in particular, when it’s a white female victim, the odds of a death sentence can be multiplied by many times.
Robert Dunham 9:29
In your book, Deadly Justice, you argued that through a variety of empirical analyses of capital punishment that the death penalty is at least as arbitrary and capricious now as it was when the US Supreme Court struck down capital punishment on those very same grounds in 1972. What was it you saw that led you to conclude that the system is just as broken if not more broken than it was in 1972?
Frank Baumgartner 10:02
The biggest one is geography — that is the degree to which a crime that occurs in a particular county will be followed by a death sentence and later an execution. And there’s another quite surprising difference, which is what decade it was: when did the crime occur? 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, for example. So there’s a capriciousness, something that makes no sense an arbitrariness associated with where did the crime occur, and when did it occur. Capriciousness is different than bias. Bias is when lower class individuals or high status victims are targeted for use of the death penalty. Capriciousness is when it’s like being struck by lightning, and we need to be concerned about both capriciousness as well as bias.
I’m really intrigued by the data on the time in which the crime was tried. Are the numbers saying that if you committed the same crime in 1990, and were tried the 1990s, you would get death? But in the exact same circumstances, you’d be much more likely to get life today?
Yes, that’s exactly what it’s saying. Now, this is from official statistics, it’s, well, obviously we don’t have the ability to go back in time and recreate a crime and have it be precisely the exact same crime. But you know, in our country we’ll have sometimes 20, 15 to 25,000 homicides every year. So when you look at the patterns of how many homicides, considering that there’s so many 1000s of homicides in our country, and that’s the real tragedy, we have to keep that in mind. When you look at these very large numbers, it stands to reason that some significant percentage of them would be considered by anybody’s standards, particularly heinous crimes. Some percentage of 20,000 homicides every year, year in year out, is going to, are going to be what people sometimes refer to as really bad or particularly heinous crimes. So I don’t think that we can say that there were more heinous crimes in 1995 than there were in 2015, for example. But we can definitely say that across all those heinous crimes that took place in 1995, many, many more of them were followed by a death sentence. It had to do with the attitudes, of the tough on crime attitude and the pro death penalty attitudes in the public, as well as among elected officials, as well as in the judicial community among district attorneys and judges. It’s also related to things such as the legal resources available to capital defense teams across the nation and many differences. But in any case, it all adds up to the fact that it’s more than three times more likely that somebody would have gotten a death sentence for the same crime, roughly speaking. In the mid 90s was the peak use of the death penalty, but it was not so many more homicides that it would explain the increased number of death sentences at that time.
Robert Dunham 13:27
Geography is also fascinating, because of the the old question of ‘Is it literally the case that whether you get capitally prosecuted, and whether you get sentenced to death may depend on what side of the county line or which side of the river or which side of the bridge, you committed the crime?’
Frank Baumgartner 13:48
It’s definitely a consideration and certainly if it’s across a bridge that separates two states, it could make the crime ineligible for death in one state and eligible in another. But even within the same state, the rates of use of the death penalty 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. There is the development of a legal culture within certain judicial districts or counties, where district attorney’s offices get accustomed to seeking death or they never go down that path in the first place and they never developed the expertise, nor the expectation that they’re going to seek death in a high percentage of cases. So once a county begins to go down a path, they tend to kind of reinforce their own history and so that means that two different counties might develop very different trajectories over time and the use of the death penalty, controlling for, you know, their, their population size, the number of homicides that occur. So 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.
Robert Dunham 15:16
In many fields of public policy, and we were talking about this a little bit earlier, data has been used to improve policies and to create, hopefully, more accurate outcomes. Do you believe that that type of reform is possible when it comes to the death penalty, or are the problems that you’ve seen things that are fixable by changing the law?
Frank Baumgartner 15:45
I think that the United States puts 10s of millions of dollars, I don’t know what the number would be, it must be billions of dollars, into preserving a death penalty system. And the Supreme Court mandated in 1976 a series and since then, increased, increased safety valves and safety measures and resources for the defense and all kinds of jurisprudence that have given us a special legal system for the death penalty. And one would like to think that with all that attention to making sure that it’s applied proportionately only to the most deserving offenders for the most heinous crimes you would, you would like to think that with all that attention to these safeguards, 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 and there’s, 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. I mean, we’ve tried that. If we could do that I think a lot more people would be comfortable with the death penalty. But I think at this stage, what we really need to do is admit that it’s a failed experiment. It’s a, perhaps a 400 year old experiment, but you can’t trust the government to get it right every time.
Robert Dunham 17:12
I think one of the really interesting studies you’ve done is your index of public support for capital punishment. And I know you first wrote about this in The Washington Post back in 2015. And you very recently did an updated analysis, I think, in August 2021. Just about the same time that Attorney General Garland announced at the federal level there’ll be a temporary halt to federal executions. And I’ll, I’ll get back to the Attorney General a bit later. But first, can you tell our audience what the index of public support for the death penalty is? And what does it tell us, both about support in general, and trends in the way, in the way the death penalty is actually carried out?
Frank Baumgartner 17:57
Sure. It’s slightly complicated, but I’ll try to simplify. As any of the listeners would know, the Gallup poll has been asking about, the Gallup survey organization, has been asking about public opinion on any number of issues since the 1930s. And they’ve asked the question, do you favor or oppose the penalty of death for persons convicted of murder, dozens and dozens of times. Maybe 50 times or more over the period since the 1930s, and more commonly since the 50s. But other polling agencies have also asked either that exact same question or other questions related to the death penalty that used different question wordings and it’s clear that you can compare the Gallup poll to itself and develop a trend over time. But one of my colleagues, who was a very prominent political science professor who specializes in the study of how public opinion changes over time, developed a methodology to take diverse public opinion questions that are on the same topic, even if they don’t use the exact same question wording, to develop an aggregate public opinion index. And so what I did is use his methodology. He was interested in ‘do people support bigger government or smaller government?’ and so the way he developed this index was to use the questions, let’s say, ‘do you think the government is spending too much not enough or about the right amount on education?’ And people give an answer to that, and then somebody else might ask about whether they’re spending too much or too little on health care or national defense or transportation or whatever. And he realized that all of those questions tapped into a general perspective of the person, about whether the government was too big or needed to be bigger. So he developed a methodology to combine all these questions into a single index. So I did that same thing for the death penalty and I used the Roper polling agency, [which] has an archive of every public opinion survey of a nationally representative public opinion surveys, and it’s a searchable database. And so I searched it, and found over 500 national surveys about the death penalty. These 500 surveys went back to, there was one from the 1930s, but there was many more starting in the 1950s and they use about 65 different questions. And I count as a different question when it’s even, when it’s the same question posed by two different polling organizations, because they might have slightly different methodologies and how they asked, how they devise the samples and whatnot. Anyway, I was able to combine all those data to have the most comprehensive look at how public opinion has changed over time. The result was that public opinion when it was at a historic low point around 1965 and some listeners might recognize 1965 as the last execution before Furman and there were no executions in the United States, and in the period between World War II and 20 years later, in 1965, there was a dramatic and long term decline in the use of the death penalty, down to zero between 1966 and 1977. And so the United States really was at the forefront of what appeared to be potentially a worldwide movement to abolish the death penalty, and in 1972, that’s what the Supreme Court did. But as you know, and the listeners know, the the political backlash to that was extreme and rapid. And it had a geographical focus: southern states in particular responded very strongly to that Supreme Court decision in 1972. And I saw that it was, it followed on a lot of other Supreme Court decisions that many southern states didn’t support, or the leaders in those states didn’t support. Anyway, public opinion moved in a pro-death penalty direction from 1965 until about 1995, mid 1990s, and public policy followed. We had enactment of death penalty laws in many states, immediately following Furman and then the number of death sentences tracked very closely to this rise in punitive public opinion, and that punitive public opinion was not limited only to the death penalty: it was about criminal justice in general. But since 1995, or 1996, that public opinion trend reached its peak and has been declining. And today, according to that article that I published based on the most recent polls that I could find, we’re back to where we started in 1965. Not where we started but we’re back at that historic low point, equal to how low public support is, since 1965. So it’s, it’s a dramatic change. And I would add that the number of death sentences has tracked almost perfectly this index of public opinion. The number of death sentences is down dramatically from the peak that it had in 1995-1996, around the mid 90s. That was the peak usage. And today we’re at, you would know better than I, Rob, the number but I think we’re at maybe 20%. And so reduction of 80% from its peak of about 320 death sentences per year in the mid 1990s.
Robert Dunham 23:48
Yeah. And, and executions are down partly because of COVID in the last couple of years, but the executions are also down by about 75%.
Frank Baumgartner 23:57
Yeah, so this, this public opinion really matters. It has a direct transferable effect on the use of the death penalty.
Robert Dunham 24:05
Why do you think that is? Is that because these folks end up on juries or because prosecutors as good politicians put their finger in the air and figure out which direction the wind is blowing? What do you think accounts for that?
Frank Baumgartner 24:20
I think it’s more the latter than the former. If you don’t believe in the death penalty, you can’t be on jury anyway, so the death penalty juries are already skewed. But I think there’s a little bit of that effect that affects how people behave in the jury room. But I think more generally, it relates to whether prosecutors believe that it’s a popular and prudent choice to seek death and whether they want to prosecute more cases capitally or not. So, and I think there’s been a big change in that and that’s for many reasons. And part of it is these statistical findings that I think .. you know I’ve come up with and many other scholars and legal scholars and advocates have been promoting factual demonstrations of the flaws and death penalty, as opposed to moral arguments. I of course, nothing against making moral and religious arguments about the death penalty on one side or the other, but the peculiarity of those arguments is that it’s hard to convince those who don’t start out already agreeing with you. If you say that their religious philosophy is wrongheaded, that can be the end of the conversation instead of the beginning of the conversation that might lead to something. Whereas if you say, you know what, no matter what you think about the death penalty as part of your religious or philosophical viewpoint on morality, here’s some facts you might want to consider: it costs too much. It’s racially biased, it’s geographically arbitrary, 70% of the cases are overturned on appeal anyway, doesn’t deter crime. Those are all considerations that a prosecutor who might be perfectly willing to seek death and send somebody to the gas chamber or to the electric chair, they still don’t necessarily want to waste the taxpayers’ money on something that’s not going to happen anyway. So I think that these facts and figures and these statistics have really raised considerations about the death penalty that have moved us away from a discussion about it that’s been abstract and moralizing or religious based, to one that’s really based on an evaluation of a public policy. And kind of like a public administration program evaluation. Is it working as intended? Is it cost effective? Is it producing the effects that we might want, that the legislator intended? And the answer in every case is no. So, I think that’s what’s changed the behavior at the level of prosecutors and judges.
Robert Dunham 27:07
Over time, as public opinion has changed, we’ve seen a change in some of the political discourse relating to the death penalty and toughness on crime in general. And, you know, when we look back on the 1980s, and the 1990s, the death penalty was often weaponized by politicians who wanted to portray themselves as tough on crime. And I’m wondering, given the results from, from the index, there’s a recent uptick in crime rates and we’ve seen more of this 1990s-style political pandering on criminal legal issues. But based on your analysis of where public opinion on capital punishment is going, how do you think the public is reacting to that type of pandering?
Frank Baumgartner 27:58
Well, the … according to the data that I gathered, the trend continues to be in the direction of increased opposition to the death penalty, and I haven’t seen a reversal of that trend. Now, there’s nothing in, there’s no theory that says that this trend will continue forever. It is certainly possible that the public opinion trend could reverse again and start moving in the pro-death penalty or harsh criminal justice policies, in general. But I think that what we have rather than that is a bifurcation or polarization in our political rhetoric, where a certain group of people are speaking a lot about crime and the need to be tough on crime and to return back to the policies of three strikes you’re out and life without parole and extremely harsh punishments for even, for sometimes, for minor crimes or the use of the death penalty and much greater numbers, and I think that’s a minority voice. And it’s one that has not really resonated with large segments of the population. It’s certainly as popular in certain smaller groups in the population — some voters certainly favor harsher criminal justice policies, but I think the national debate has recognized, has come to recognize that mass incarceration is now making us not a better country. It’s, it’s caused millions and millions of people to suffer from the effects of incarceration, entire communities have been affected by it. So I think the debate about the death penalty can’t be dissociated completely from mass incarceration and criminal justice in general. And I remember in the Republican debate for president, and before the previous election, every single candidate on the Republican side indicated that they thought that mass incarceration had gone too far and that we needed to find ways to be smarter on crime rather than tougher on crime. So there could be some isolated voices saying something different, but I think that nationwide as a whole, we’re still, we’re beginning, we recognize that mass incarceration went too far and the pro death penalty policies of the 90s were extreme.
Robert Dunham 30:25
Now this podcast is being recorded the day after the California recall election, in which the Gavin Newsom supporters, Governor Newsom supporters, were calling it a kind of far-right wing attack on democratic institutions in California. But in the recall effort, the proponents of removing Governor Newsom from office used, among their various different attacks, the fact that he had declared a moratorium on executions in California and that there were rising, rising crime rates, rising murder rates. Obviously, there were numerous factors at play in the recall election, but Newsom won overwhelmingly by a two-to-one or more margin. What do you think those results say about the effect of opposing the death penalty on a politician’s popularity?
Frank Baumgartner 31:28
Well, I think it shows that the death penalty is not the be all and end all policy and, and also, I think it’s easy to recognize when it’s being used as a cudgel or a battering ram and when it’s being used sincerely. And I don’t think there’s a person in California who could sincerely say that they have, that that state has a death penalty system that functions the way anyone would want, even a supporter of the death penalty. California stands alone, perhaps a little bit with Pennsylvania, but even more extremely, California has the largest death row in the nation. They have sentenced to death over 1000 individuals since Furman, they’ve executed exactly 13 people out of 1000. And really, what they really have is a warehousing system where hundreds and hundreds of people languish on death row for decades, with some extremely minimal chance that that death sentence will ever be carried out. And even that would be arbitrary and capricious when you think about which of the eligible inmates in California, who’ve been on death row for, say, 25 years or longer, might be selected for the next execution. So, Governor Newsom did the right thing in declaring a moratorium on that ridiculous system in California and those who say he doesn’t support the death penalty in California haven’t looked at what the California death penalty really is, because it’s a mess. I think the death penalty still gets used for political reasons. I don’t think it’s a sincere argument because there’s very little to support about the California death penalty, very little to be happy about with the California death penalty.
Robert Dunham 33:17
I think we’re seeing some of that same kind of dynamic at the federal level after the unprecedented federal execution spree during the final six months of the Trump administration. And then the election of a president, the first president to have campaign for office saying that he would work to end the federal death penalty. Now I’m not saying that, that the death penalty determined the outcome of the election, that’s clearly wrong, but it was something that was an issue. And some people speculate that President Biden, who said that he would work to end the federal death penalty, has been reluctant to take the one simple step that in your Washington Post piece, you said, could end the federal death penalty for a generation and that is commuting the death sentences of everybody on federal death row. Given the, what we’ve seen with the index of public opinion on capital punishment, and the reelection of governors who imposed moratoria on the death penalty, and also the reelection of governors who vetoed bills to abolish capital punishment. What political message should he take from the index?
Frank Baumgartner 34:35
He should take the message that it’s politically safe. It’s the, it’s the most propitious time in recent American history. In the last 50 years, public opinion has moved further away from the death penalty at anytime in the last 50 years. So I think the President should take from that, that it’s politically safe, it’s politically acceptable. It’s, it’s mainstream not to be enthusiastic about the death penalty and certainly politicians have learned to say how they might potentially support something like capital punishment in the abstract if they knew that it could be applied accurately and fairly. With 50 years of experience now since 1972, we can confidently say that the death penalty has not been applied fairly. 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 ridden 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. So it’s something that we, we might not be able to eliminate throughout the criminal justice system. But we shouldn’t be putting people to death on the basis of a system that’s so flawed. So I think politicians have learned to make an argument about the death penalty that says, I regretfully conclude that this system just doesn’t work and we’re better off without it. Rather than saying, my religion tells me that the death penalty is morally wrong and I’m going to force my moral views on the rest of you. That’s not the argument you have to have. 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 another public policy that doesn’t work.
Robert Dunham 36:37
Well, Frank, we’ve covered a lot of ground. We’ve covered politics, you’ve covered policy, we’ve covered history. I would just like to thank you for spending time with us and for your help with this issue of Discussions with DPIC.
Frank Baumgartner 36:52
Well, Rob, it’s a pleasure to be with you and I really hope that your listeners will find something of value on what we’ve been talking about. Thanks for having me.
Robert Dunham 37:00
To learn more about Frank Baumgartner and his work. Visit FBAUM. That’s fbaum.unc.edu. To learn more about the death penalty, visit the Death Penalty Information Center’s website at www.deathpenaltyinfo.org. And to make sure you never miss an episode of Discussions with DPIC, please subscribe on your podcast app of choice.
