The DPIC 2019 Year End Report

Anne Holsinger 0:01

Hello, and welcome to Discussions with DPIC. I’m Anne Holsinger, the Managing Director of the Death Penalty Information Center. In this episode, I’ll be speaking with DPIC’s Executive Director, Robert Dunham, about our 2019 year end report. Robert, could you start by summarizing the major themes of this year’s report?

Robert Dunham 0:20

Well, I think there really are two major themes from the report. The first is that the death penalty appears to be disappearing from whole parts of the country and eroding in others and we’ve seen that with the abolition of the death penalty in New Hampshire, and the moratorium in California, and with Indiana now going 10 years without an execution. So now, we have more than half the country living in states that either have abolished the death penalty or have moratoriums on execution, and 32 states either have no death penalty at all, or haven’t executed anybody in 10 years. I think the second major theme was the continued unreliability of the death penalty and that was exhibited with the really substantial evidence of problems with innocence cases this year, and with the fact that executions and death sentences did not appear to be in the worst of the worst crimes and the worst of the worst offenders, but cases in which the defendants were the most vulnerable, or in which there was the poorest legal process.

Anne Holsinger 1:31

What findings from this year most surprised you?

Robert Dunham 1:34

Well, I think the biggest surprise was the numbers were as low as they were. There were a lot of indicators that with the aggressive rhetoric and attempt by the federal government to resume executions, that some of that might carry over to the states and what we saw with the public opinion polls, with new death sentences, and with the executions is that they didn’t. Death sentences remain near record lows for the fifth consecutive year. For the fifth straight year, we had fewer than 50 new death sentences and in fact, it looks like they’re going to be 34 this year: that will be the second lowest since the death penalty came back in the 1970s. And with the federal government threatening to resume federal executions, it looked as though the number of executions was likely to rise; instead, it fell from 25 to 22, and 22 is the second lowest that we’ve had in 28 years. So that was a surprise. When when you have big governments, the United States government itself, saying that it wants to resurrect the death penalty, and that action appears to have no effect whatsoever on the trend towards the death penalty declining, I don’t think people expected that.

Anne Holsinger 2:56

The report notes that 2019 was almost the year of executing the innocent. What do you think made innocence stand out as a big theme this year?

Robert Dunham 3:06

Well, I don’t think there was anything specific about innocence itself. What was so unusual about the year was how glaring the innocence cases were, and how many of them there were. We had two exonerations this year, Clifford Williams in Florida, and Charles Ray Finch in North Carolina and those two cases illustrated a couple of problems about the death penalty and things that I think warranted public attention. Both Williams and Finch were sentenced to death in 1976, so they spent 42 and 43 years, respectively, in jail before they were exonerated. That tells us a lot about the judicial system’s inability to protect people who are innocent. And one of the most disturbing aspects of these two cases is that if Mr. William’s and Mr. Finch’s death sentences hadn’t been overturned because of the unconstitutional statutes in which they were sentenced to death, they very likely would have been executed without anybody ever learning that they were innocent. Their cases also are disturbing because we now have 166 people who have been wrongly convicted and wrongly sentenced to death, who have since been exonerated. And that number, 166 exonerations for 1512 executions, means that for every nine people that we’ve executed, there’s been an innocent person exonerated — and that is an alarming failure rate. And that doesn’t even count the individuals who were innocent and were executed. And that’s another one of the things we saw this year with the innocence cases, because there were a number of years very disturbing cases in which people were executed despite substantial doubts as to their guilt, and cases in which the courts refused to look at evidence that could have shown that they were not the killers. So, Dominique Ray was executed in Alabama. The only evidence that he committed the crime came from a witness who was severely mentally ill — he had schizophrenia — and he was actively hallucinating and having active delusions at the time that he implicated Ray in the offense, at the time he testified against him. The prosecutors knew about that, and didn’t tell the defense about that and that very well could have made the difference between conviction and acquittal, let alone life and death. But with this serious evidence of prosecutorial misconduct and a flawed case, the courts never, ever took a close look at that issue and so Mr. Ray was executed without anybody paying attention to the evidence that he very well might have been innocent. And then later on in the year, Larry Swearingen was executed in Texas, and Mr. Swearingen was almost certainly innocent. There were numerous types of forensic evidence that were presented in this case and as the case unraveled, we saw one layer after another of what came to be described as forensic quackery. There were all sorts of just bad evidence and the worst of them was the testimony of a medical examiner that placed the time of death at more than three weeks before the victim’s body was discovered and that was important because Mr. Swearingen was in custody from three weeks before until the time the body was discovered. Later on, entomologists, people who study insects, were able to take a look at the autopsy and they showed that the insect evidence clearly indicated that the victim could not have been dead for more than two weeks. And there were a number of other forensic experts who took a look at the autopsy evidence and they also concluded that there is no way the victim was dead more than two weeks. That means that Larry Swearingen was executed for a murder that occurred during a period in which he was in custody and could not possibly have committed the crime. So I think when you have instances like that, that is extremely, extremely disturbing, because it shows that there’s not just a risk that innocent people will be executed, but that innocent people still are being executed and two in one year is very disturbing.

Anne Holsinger 7:44

Would you like to also address the cases of Rodney Reed and James Dailey, who had execution dates this year, but those dates were halted?

Robert Dunham 7:53

These are also two extraordinary cases. Rodney Reed’s case attracted unparalleled attention, and it’s not surprising when you look at the facts of the case and you see why. Everybody’s greatest fear is that an innocent person is going to be convicted and sentenced to death and you want to have a fair process to ensure that that doesn’t happen. And it’s even worse when it appears that someone is willfully being executed, where the people in control of the law enforcement practices and the courts have to have known that this man was innocent and allowed his execution to move forward. Rodney Reed, essentially, was convicted and sentenced to death because he was having a consensual affair with a white woman who was engaged to a racist, violent, and dirty cop. The police officer was later fired, and ultimately went to jail for kidnapping a woman and sexually assaulting her while he was on duty. So, you have a police officer who has a history of violence, you have an illicit affair that’s taking place, and it has all the characteristics of the lynching cases that we used to see from the 1800s into the 1900s, and going up pretty close to the 1960s. It’s the kind of case that you would hope that we had outgrown, but the Texas courts just looked the other way and were not paying attention to the evidence. It began to get attention from a lot of celebrities. So, we had Dr. Phil come down to Texas and do an interview with Rodney Reed and that was part of a special two-part episode. And then Kim Kardashian tweeted that that the state should take a look at it and then you had Beyonce, and you had all sorts of other celebrities getting involved in the case, including Chuck Woolery, who is a very conservative, white, talk show host who happens also to be a Texan and a Republican. Then you had the state legislature, asking the governor to stop the execution and it was Democrats and Republicans and US Senator Ted Cruz. You also had a petition signed by 3 million people. So with that kind of public attention, you know that folks know that something is wrong and yet even then, the case came down almost the last day. The board of pardons unanimously recommended that Governor Greg Abbott grant a reprieve and then before the Governor acted, the Texas Court of Criminal Appeals granted a stay of execution. This doesn’t mean that Rodney Reed is going to live. It doesn’t even mean he’s going to get relief, but at least a court is going to take a look at his claims of innocence, which are substantial. And the hope is that when they do take a look at the evidence, they’ll do so objectively, knowing that the rest of the world is watching very closely, and that Mr. Reed will get a fair trial and ultimately be aquitted. The second big innocence case that almost resulted in an execution, and unfortunately still might, is the case of James Dailey and Dailey is a military veteran, he served three tours in Vietnam, and one tour in Korea. He was sentenced to death for the brutal rape, stabbing, and drowning of a 14-year old girl. All the evidence against him, came from very self-interested witnesses. There was no physical evidence that linked Dailey to the murder. The 14-year old girl, Shelly Boggio, who was killed, was stabbed 31 times before being drowned to death. A knife was found in the vicinity of her body, the knife belonged to a man named Jack Pearcey, and Mr. Pearcey was James Dailey’s housemate, and Pearcey had a history of violence against women. Pearcey, in order to deflect attention from himself, said that he had stabbed the girl once, but that the actual killer was Mr. Dailey. The state decided to try both of them, and they tried Mr. Pearcey first. He was convicted and he was sentenced to life. In response to that, the prosecution, with this really horrific crime, wanted to get a death sentence against somebody and so they sent investigators into the prison to try to get additional information against Mr. Dailey. And as one of the prisoners who didn’t testify in the case said, they brought in these newspaper clippings that told us everything that we needed to know about the crime if we were going to testify. Two prisoners stepped forward and claimed that Mr. Dailey had confessed to them, and then a third prisoner, whose name was Paul Skalnik, also testified. It turns out that Dailey had been moved to a prison cell near Skalnik, and two days after that, Skalnik said that he had overheard Dailey making confessions — in fact, it was more than that — Dailey stood in front of him, in front of his cell, and confessed. Skalnik was remarkable because he was an ex cop who had to leave the police because of all sorts of allegations against him, and he went on to a life of crime as a con man. He was described by Florida police as a con man extraordinaire. His testimony was responsible for putting more than 37 people in jail, four of them on death row. And in this remarkable period of time, during which he implicated Mr. Dailey, he came up with confessions to first-degree murders in eight separate Florida cases. This evidence of his history was not presented to the jury. And he went in front of the jury and he told the story about how he had seen Mr. Dailey mingling with other prisoners and laughing and then all of a sudden, Dailey is standing in front of him at his cell, and he sees Mr. Dailey’s eyes, and he hears Mr. Dailey’s voice, talking about how he stabbed this girl to death and she screamed, and she wouldn’t die, he said, and that’s incredibly dramatic testimony. But all the evidence suggests that Mr. Dailey didn’t do it. And the state courts wouldn’t hear that testimony and the federal courts have not listened to that testimony, and he may still die unless clemency is granted or the courts intervene.

Anne Holsinger 15:09

You mentioned Rodney Reed and the recommendation from the Texas board of pardons about a reprieve for him. There were numerous requests for clemency in 2019, most of which were turned down. But three had some success — Mr. Reed, and then later in the year, two grants of clemency by outgoing Kentucky Governor Matt Bevin. What did this year tell us about the clemency process?

Robert Dunham 15:33

I think it told us both that the clemency process is badly broken, and that there are still opportunities for remarkable acts of mercy. You know, we talked earlier about two of the innocent people, most likely innocent people, who were executed; they sought clemency and were denied. There was also the case of Ray Cromartie, who admitted to having been involved in a robbery, but said he didn’t shoot anybody, he didn’t intend for anybody to be shot. And the state’s case against him rested on their argument to the jury that he was the shooter in this murder, and in a previous murder. Mr. Cromartie wanted DNA testing of the gun — testing that wasn’t available at the time — and that testing could have shown who the shooter was, who had actually handled that weapon. And the victim’s daughter supported the call for testing. The courts ignored it. His request for clemency would have been futile, his lawyers thought, because why should they seek clemency for something he didn’t do? Their lack of faith in the clemency process was so significant that they didn’t even bother to ask. Now, clemency does get granted sometimes — we’re averaging fewer than two grants of clemency per year, outside of the the big grants like we saw in Illinois when the governor cleared the death row there. But there have been 290 grants of clemency since the death penalty came back the 1970s and four of them were in Kentucky, two of them this year. As Governor Matt Bevin’s term was expiring, he had numerous applications for clemency in front of him, and folks tell us that he was looking at them one at a time and two of them, injustices in death penalty cases, leapt off the pages to him. The first was a case of Gregory Wilson, whose trial proceedings have been described as pretty much a travesty of justice. Wilson gets convicted in 1988, so he’s on death row for more than 30 years and one federal judge described his trial as among the worst examples he had ever seen, of ‘unfairness and abysmal lawyering.’ And that’s a quote from a federal judge. In Wilson’s case, the court took more than a year to find a lawyer, because Kentucky paid so little that no competent lawyer was willing to take a case for life for that cost. The state capital representation fee at that point was only $2500 and eventually, the judge literally hung a sign on the courthouse door asking for help, saying in capital letters, ‘Please help. Desperate. This case cannot be continued again.’ So in response to this plea from the judge, two local lawyers step forward. One of them, a man by the name of John Foot, had never tried a felony case at all. The second, a lawyer by the name of William Haggedon, volunteered to be the lead counsel; he volunteered to work for free. But Haggedon was a semi-retired lawyer, he didn’t have an office, he didn’t have a staff, he didn’t have a copy machine, and he didn’t even have any law books. He listed his phone number as the phone number for a local bar. The lawyers didn’t interview witnesses, they didn’t look at the state’s case, they presented no evidence in the guilt stage of trial, and they didn’t present any witnesses to spare Mr. Wilson’s life. He went through the judicial process, and he lost — and all he had left was clemency. And four days before the Governor left office, he took a look at the case, and he said, ‘to say that Mr. Wilson’s legal defense was inadequate would be the understatement of the year.’ Then, in an even more remarkable case, I think, less than two hours before he left office, Governor Bevin commuted the death sentence of Leif Halverson, a case that I think can best be described as a remarkable story of redemption. Mr. Halverson admitted his guilt and has been remorseful for 36 years, ever since he went to death row and in his 36 years on Kentucky’s death row, Halverson went from being a drug addict to a college graduate and he completed two degrees in that time. While he was on death row, he raised money for underprivileged kids, he mentored at-risk youth, and he was he only death row prisoner that the warden trusted to be part of a panel of prisoners who met in-person and spoke with troubled students. And corrections personnel also stepped forward on behalf of Mr. Halverson, crediting him with restoring calm during some tense periods in the prison, and they thought that that very likely prevented attacks on both corrections personnel and other prisoners. A number of the students wrote letters supporting Halverson’s request for clemency, saying that his talking to them had helped to turn their lives around. He had written some pieces on his own and in one magazine story, he said his years in prison had been spent ‘reclaiming my life from the ashes of its ruins.’ When he granted the commutation, Governor Bevin said, ‘Leif has a powerful voice that needs to be heard by more people.’ And this grant of clemency, I think, was the ultimate exercise in mercy. This is one of the things that the clemency process exists for. When the legal system fails to correct wrongs, as it did in Gregory Wilson’s case, and there is no confidence in the outcome of those proceedings, that’s one case where clemency is appropriate and Governor Bevin stepped in there and granted clemency. But a second area is when a person has so changed their life, that the person who is being executed bears little to no resemblance to the person who committed the offense and Governor Bevin recognized that, and used that ground as the basis to spare Mr. Halverson’s life.

Anne Holsinger 22:43

This year, there were very few people sentenced to death or executed. Do you think that those numbers indicate that prosecutors, juries, and judges have become more selective about which cases deserve capital punishment?

Robert Dunham 22:57

You know, one would hope that would be the case. We now have a lot of experience since the mid 1990s, when there were more than 300 death sentences per year. We’ve had an 85% drop in death sentences. And we’ve had a lot of experience since the late 1990s, when, in 1999, 98 people were executed. Death sentences have declined by 85%, executions have declined by 75%. And the hope would be if the death penalty were used more sparingly, it would be reserved for the worst of the worst crimes, the worst of the worst offenders, and we would genuinely narrow the group of people who are being selected for capital prosecution and for execution, and that we’d end up with a less arbitrary, less discriminatory, and less unfair system. That was the hope. And with the numbers dropping so dramatically, there is an opportunity for that to be the case. And unfortunately, the hope the numbers give us is dashed by the reality of the cases. When we looked at the 22 executions this year, in 19 of those 22 cases, we saw evidence of significant mental illness, brain damage, IQ scores in the intellectually disabled range, or defendants who had been exposed to lifetime chronic trauma of the type that affects brain development and affects the judgment centers of the brain, which would make an individual less able to cope with stressful circumstances. We also saw four individuals, who are age 18 through 21 at the time of their executions, very close to what the US Supreme Court has said is the constitutional limit on being able to execute people, and whose ages at the time of the offense placed them in what we now know is a portion of brain development that says their brains are more like teenagers and adolescents, for whom you cannot seek the death penalty, than fully mature adults, for whom you can. So, the death penalty was carried out on the most vulnerable, as opposed to the most culpable. And among the prisoners who were sentenced to death this year, and we’re now up to 34 — there may be one or two sentencings still to come in the last two weeks of the year — but when we look at those cases, more than a quarter of the people who were sentenced to death this year, were people who had extraordinarily obvious problems in trial proceedings. Two people were sentenced to death in Alabama, under their unique provision, unseen in any other state, that allows a judge to base a death sentence on a non-unanimous sentence recommendation by a jury. And there were seven other cases, which is more than a fifth of all the cases, that resulted in death sentences — seven other cases in which defendants waived critical constitutional protections, and were permitted to do so, and I think the most glaring of those was the case out of Georgia, in which Tiffany Moss, whose lawyers presented evidence to the court from neuropsychological testing that demonstrated she had damage to the portions of her brain that are responsible for impulse control, for judgment, for consequential thinking, and for decision making and the judge permitted this brain damaged woman to represent herself. Nobody had been sentenced to death in Georgia in five years and nobody who has been represented by a lawyer, still, has been sentenced to death in Georgia in the last five years. But this brain damaged woman was allowed to represent herself, didn’t ask any questions during the jury selection process, presented no defense at the guilt stage, and presented no defense or reason why the jury should spare her life. So, here we have someone who we know has significant mitigating evidence that the jury never heard about, very powerful evidence of brain damage — the type of evidence that very frequently leads juries to spare defendant’s life — the jury never heard about it, and the entire trial proceedings are distorted by the fact that there is no defense whatsoever. It’s this kind of failure by state courts, by trial courts, that has caused the American public to become less and less confident in capital case proceedings, and trust the government less and less to be able to carry out this punishment. So the numbers suggest that the death penalty had an opportunity to become fairer because fewer people were going to be sentenced to death, fewer people were going to be executed, maybe it was going to be less arbitrary. But the facts showed us that just the opposite occurred.

Anne Holsinger 28:31

With the decline of the death penalty, we’ve also seen an increasing geographic concentration. So this year, 91% of executions took place in the South, every northeastern state has abolished the death penalty or imposed a moratorium, and there hasn’t been an execution in the west in five years. That region also set a record low for new death sentences this year. What is causing this geographic divide and what do you think it means for the future of the death penalty?

Robert Dunham 28:59

Well, I think one of the big things we’re seeing is there really isn’t a lot different that’s happening. It’s that different regions of the country have historically treated the death penalty differently. I’ve often described what’s going on with capital punishment in the United States as erosion — a slow, but continuing decline in public confidence in the institution — and so the areas of the country in which death penalty had the least support initially are the areas in which it’s disappearing first. New Hampshire became the final New England state to do away with the death penalty. If we’re thinking about erosion, the death penalty had disappeared from New England, and it’s been disappearing one state at a time from the Mid-Atlantic. Now when you look at the entire Northeast, there’s only one state that has it, which is Pennsylvania, and they haven’t executed anybody in 20 years, and they have a moratorium on executions. The next state south of Pennsylvania, is West Virginia, who hasn’t had the death penalty. So you now have this Northeastern swath of states, it starts in New England and runs to the beginning of Appalachia, where there’s no functional death penalty, and that takes a span of 1300 miles. That shows that there’s this wave that’s creeping down the Atlantic coast. Last year, in 2018, there was only one death sentence that was imposed in the original 13 US colonies, which showed that the Atlantic coast really was moving away from capital punishment in terms of applying it. And I think that in November, we saw an election in Virginia, where there’s a realignment of the legislature that suggests that Virginia may, going forward, become another state without the death penalty and then you have this gradual erosion along the Atlantic coast, moving now from the North into the Southern states. We’re also seeing the erosion in the West. You mentioned that we had nobody west of Texas executed now for five years. We had a record low number of death sentences imposed in the West. — there are only four death sentences imposed west of Texas, and that’s the lowest number since California brought back the death penalty in 1977. So we’re talking about historic lows. California has a moratorium. Colorado has a moratorium. Oregon has a moratorium. Washington, last year, went from having a moratorium to abolishing the death penalty. Wyoming, which has an overwhelmingly Republican and overwhelmingly conservative legislature, passed a bill to abolish the death penalty in the State House of Representatives, and it came out of committee in the Senate. So we had major movement towards abolition in one of the most conservative and Republican-dominated legislatures in the entire United States. That tells us that there is something going on in the entire Western region where it looks as though the death penalty is disappearing, similar to the process that we saw in the Northeast. Where the death penalty persists is in a few states in the deep South, and in a couple of states in the Midwest, but only seven states executed anybody this year, and only four states both executed somebody and sentenced somebody to death. One thing that I think is happening, has a lot to do with political culture. In much of the United States, the death penalty has moved out of the realm of a partisan issue into a policy issue and when it becomes a policy issue and becomes less political, we see coalitions growing to do away with a policy based on evidence that it doesn’t work. We’ve seen a significant growth in conservative opposition to the death penalty, because it is more expensive than alternative methods of punishment, and it doesn’t seem to work. So conservatives are saying it costs too much, it doesn’t do what it claims it will, let’s go somewhere else. In the states that have moved from looking at the death penalty dogmatically to looking at it pragmatically, we’re seeing growing conservative opposition and coalitions building that have led to the death penalty being overturned or repealed, or used less frequently by prosecutors throughout those states. There are some states though, in which you still see some of the political rhetoric of the 1990s and those are states in which, unfortunately, the death penalty also appears to have the greatest racial disparities in the United States. It’s not surprising that those are states that come out of the legacy of slavery, the legacy of lynching, and the legacy of Jim Crow. These are the states in which we seem to be seeing the state courts turning their eye away from the miscarriages of justice that we talked about earlier.

Anne Holsinger 34:47

A lot of the trends that you’ve discussed and that we covered in the report are now long-term trends — executions and death sentences have remained low for five straight years now. What does it mean that these are now becoming sustained, long-term trends in the numbers?

Robert Dunham 35:03

Well, I think it means that there’s change in America’s philosophical culture and a worldview change. I don’t think it’s a surprise, when you take a look at the public opinion polls, that you see significant shifts away from the death penalty among every demographic group, but one of the groups that is most against the death penalty these days is the young. That I think reflects that we’re seeing a culture shift similar to what we’ve seen with the issue of marriage equality. So this cultural change suggests it’s going to be long-lasting because the younger people are going to get older. They’re going to become the older people. The people who are dying are the ones who tend to be more supportive of capital punishment. The ones whose views are going to affect the policies of the future the most are the ones who support the death penalty the least. The fact that we what we’re seeing is a more sustained change, 20 years of decline, five years of near record lows, gives us confidence that unless something truly dramatic happens, we’re not going to be returning to those high levels of death sentencing, and high levels of executions that we saw in the past. I think the numbers this year are particularly instructive, given what happened with the federal government. The Trump administration wanted to bring back the federal death penalty. The administration has used harsh rhetoric about the death penalty for several years and it has not increased the public support for capital punishment. The administration vocally said that the death penalty should be used for drug killings, for drug sales. It should be mandatory for cases involving police killings. We haven’t seen increases in the imposition of the death penalty at the state level in those cases. And the administration aggressively tried to bring back executions this year. Now, those executions may ultimately happen, but we did not see large numbers of states saying ‘you’re right, Mr. President, we should be doing this too.’ Executions continued to fall at the state level. Now, we can’t say that next year is going to have fewer executions. This is the second fewest number of executions in 28 years, it wouldn’t surprise anybody if the numbers went up, but one would have expected the numbers to have already gone up significantly if we weren’t in this culture change, if we weren’t in a period of lasting change.

Anne Holsinger 38:18

What factors do you think are causing that culture change?

Robert Dunham 38:22

I think it’s a range of things. Innocence, obviously, is on the list. We’re now up to 166 people who’ve been wrongly convicted, wrongly sentenced to death, and we’ve now documented that they’ve been exonerated. The numbers are probably higher. We’re in the process of a census study, where we’re looking at all the death sentences imposed in the United States since 1972 and we think that somewhere in those 9000 cases, there are going to be a couple of other exonerations that haven’t already been discovered. But 166 exonerations is a lot and we’ve gone from a period in which prosecutors would say, ‘no one has ever shown that the innocent person has ever been executed’ to a period in which no one but the most avid innocence-denier will say that innocent people haven’t already been executed. So I think that’s one of the major reasons. Another reason, of course, is that murder rates are down and no matter what the federal administration may say, as a scare tactic, that murder rates are on the rise, they’re not. Murder rates are at near historic lows. They’re one third below the level they were in the 1990s, when we had our record level of new death sentences, but the fact is, new death sentences are down 85%. Murder rates are down a third. That means there is more to it than that. So, part of it is the innocence that I talked about, part of it is that one by one, states are doing away with the death penalty, so there are fewer states that are seeking the death penalty. And another thing is the increasing reluctance of prosecutors to pursue an expensive death penalty trial that’s unlikely to result in an execution and the increased reluctance of jurors to impose the death penalty, even when it’s sought. We can now show that 84% of the counties in the United States don’t have anybody on death row. Fewer than 2%, in fact, fewer than 1.5% of the counties in the United States are responsible for more than half of everybody who’s on death row. It’s a very, very limited policy. And I think that that all reflects the culture change and it is part of the culture change. It’s a cycle where one influences the other. We’ll see in the next couple of years if there is a kind of boomerang as a result of the federal policies. But everything else being equal, there seems to be this inexorable shift going on to the United States, because the worldview about capital punishment has changed.

Anne Holsinger 40:23

In the next year, several states are expected to take up abolition bills. What can legislators learn from this report as they consider whether to maintain or repeal capital punishment?

Robert Dunham 40:32

Well, I think legislators can learn that the public has less of an appetite for capital punishment. There is no great outcry in the 32 states that haven’t executed anybody for more than a decade. The public is content not to have executions. Legislators can also learn that there is this ongoing trend at the local ballot box that prosecutors who have been perceived as over pursuing the death penalty have been voted out of office. So, harsh on crime policies are less politically beneficial, and may in fact cause political peril. That may relieve some of the political pressure on the politicians when it comes to deciding whether they should vote for or against the death penalty. I think the experiences, when you look at where repeal has happened, and particularly this year in New Hampshire, underscore though, that death penalty repeal has to be based on the death penalty’s policy — it can’t be based on politics. And it needs to be bipartisan, not partisan. In New Hampshire, it’s a relatively conservative state, Democratic and Repbulican support was critical to the repeal happening. Part of that was influenced by the blue wave in the midterm elections that increased the percentage of Democratic legislators in that state. But still, a sizeable number of Republicans voted for repeal, and every Republican vote was critical in overriding Governor Sununu’s veto. In Wyoming, we saw an effort come out of the blue, and it was spearheaded by Republican legislators. And as they build bipartisan support, and as they bring in a broader coalition, and the issue there becomes more an issue of policy than an issue of politics, we’re seeing Wyoming moving closer towards potential abolition. And then in Colorado, a state whose demographics suggest that a repeal should succeed, we saw a repeal effort that appeared to be partisan in the way in which it was moving through the legislature, fail. If Colorado is going to succeed in repealing the death penalty, that effort is going to have to be more measured, more policy-based, it’s going to have to pay attention, very closely, to each legislator’s views on the subject, because this is a conscience vote for most legislators. And the legislators are going to have to bring in Republicans under the fold so that you have a unified vote based on the policy, instead of something that is perceived as an action that’s being done for political gain.

Anne Holsinger 41:15

We’ve covered so much, in terms of the themes of the report and the events of the year, but how would you sum up this year in the death penalty?

Robert Dunham 41:15

I think I’d sum up the death penalty this year in two ways. This was very nearly the year of executing the innocent, and we talked at length about that. But I think that this issue may have really broken through, given the amount of celebrity attention that we saw, and it may be a turning point in terms of public response to the lack of responsiveness by the courts, and them turning away from cases in which there seem to be clear injustices letting these executions occur. And I think it also embodies the phenomenon that we’ve been seeing for years, to an extention of it, the death penalty is disappearing from all regions of the country and its eroding from others. And I think that while it will persist in some small sections of the country, we may be reaching a point in which it is considered an outlier practice, just having the death penalty at all has changed.

Anne Holsinger 41:38

In the next year, several states are expected to take up abolition bills. What can legislators learn from this report as they consider whether to maintain or repeal capital punishment?

Robert Dunham 41:40

Well, I think legislators can learn that the public has less of an appetite for capital punishment. There is no great outcry in the 32 states that haven’t executed anybody for more than a decade. The public is content, not to have executions. Legislators can also So learn that there’s this ongoing trend at the local ballot box, that prosecutors who have been perceived as over pursuing the death penalty have been voted out of office. so harsh on crime policies are less politically beneficial, and may in fact, cause political peril. And that may relieve some of the political pressure on politicians when it comes to deciding whether they should vote for or against the death penalty. I think the experiences when you look at where repeal has happened, and particularly this year in New Hampshire, underscore though, that death penalty repeal has to be based on the death penalty is a policy. It can’t be based on politics and it needs to be bipartisan, not public. partisan in New Hampshire, which is a relatively conservative state, Democratic and Republican support was critical to the repeal happening. Part of that was influenced by the blue wave in the midterm elections. That increased the percentage of democratic legislators in that state. But still a sizable number of Republicans voted for repeal. And every republican vote was critical in overriding Governor Sununu’s veto. In Wyoming, we saw an effort come out of the blue and it was spearheaded by Republican legislators and as they build bipartisan support, and as they bring in a broader coalition, and the issue there becomes more an issue of policy and an issue of politics. We’re seeing Wyoming moving closer towards potential abolition. And then in Colorado, a state whose demographics suggest that a repeal should succeed, we saw a repeal effort that appeared to be partisan in the way in which it was moving through the legislature, fail. If Colorado is going to succeed in repealing the death penalty, that effort is going to have to be more measured, more policy based. It’s going to have to pay attention very closely to each legislators’ views on this subject because this, this is a conscience vote for most legislators. And the legislators are going to have to bring in republicans under the fold so that you have a unified vote based on the policy, instead of something that’s perceived as an action is being done for political gain.

Anne Holsinger 45:10

We’ve covered so much in terms of the themes of the report and the events of the year. But how would you sum up this year in the death penalty?

Robert Dunham 45:20

I think I’d sum up the death penalty this year in two ways. This was very nearly the year of executing the innocent, and we talked in, at length about that. But I think that this issue may have really broken through, given the amount of celebrity attention that we saw. And it may be a turning point in terms of public response to the lack of responsiveness by the courts, and them turning away from cases in which there seems to be clear in justices letting these executions occur. And I think it also embodies the phenomenon that we’ve been seeing for years extension of it. The death penalty is disappearing from whole regions of the country, and it’s eroding from others. And I think that while it will persist in some small sections of the country, we may be reaching the point in which is considered an outlier practice, just having a death penalty at all.

Anne Holsinger 46:26

Thank you very much for sharing all that with our listeners. And thank you listeners for joining us for this conversation. To read the 2019 year end report, visit deathpenaltyinfo.org to make sure you never miss an episode of Discussions with DPIC, please subscribe in your podcast app of choice