Report Finds Waning Support for Death Penalty

(CN) — Declining public support for the death penalty and reduced rates of executions indicate there is a “climate change” involving capital punishment, which could lead to an abolition of the practice in the United States, the director of the Death Penalty Information Center said in an interview, touting the release Friday of his group’s annual year-end report.

The report indicates that juries and judges sentenced people to death 41 times in 2018, and 25 executions were carried out. The number of inmates on death row fell below 2,500 for the first time in 25 years.

“New death sentences and executions remained near historic lows in 2018 and a twentieth state abolished capital punishment, as public opinion polls, election results, legislative actions, and court decisions all reflected the continuing erosion of the death penalty across the country,” according to the 20-page report.

The Death Penalty Information Center is a Washington, D.C.-based nonprofit providing information on the death penalty in the United States. It does not offer its own opinions about capital punishment.

The study notes the similarities between conditions today and 1972 when the U.S. Supreme Court put a moratorium on the death penalty in Furman v. Georgia, a 5-4 ruling in which each member of the majority wrote a separate opinion. The court ruled that absent a uniform policy of determining who is eligible for capital punishment, the death penalty constitutes cruel and unusual punishment.

“Fewer new death sentences were imposed in the past decade than in the decade leading up to Furman, and the death sentences imposed this year were more than 85 percent below the peak of more than 300 per year in the mid-1990s,” the report states.

Several factors contributed to the lower numbers, the most notable factor being reduced rates of crime, including murder. 

“We have crossed some significant threshold with respect to the fear of crime,” the center’s director Robert Dunham said in an interview, “and that has significantly changed the American worldview on what punishments are appropriate.”

In October, the Supreme Court for Washington State declared the punishment unconstitutional because it is racially biased, making it the 20th state to prohibit it.

The Roman Catholic Church this year declared the death penalty “inadmissible” because “more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.”

Therefore, according to Pope Francis, “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” and the church will work for its abolition worldwide.

The Death Penalty Information Center’s report noted public support for capital punishment has been dropping. A Gallup poll conducted in October found 49 percent of Americans thought the penalty was applied fairly.

“The death penalty in 2018 was characterized by secrecy, bias, and arbitrariness, further undermining public confidence in the reliability of the punishment and the trustworthiness of the states to carry it out fairly,” the report states.

According to the report, one prisoner has been exonerated from death row for every nine executions carried out.

If a three-judge panel in Ohio hands down a death sentence in case of George Brinkman, Jr. in the final days of the year, it will be the sixth time the death penalty will be meted out by a jury that did not arrive at that conclusion unanimously. The sentencing, expected on Dec. 28, would be the 42nd death sentence in the country this year.

“The evidence of arbitrariness is even greater today, and there were fewer death sentences imposed in the last decade than in the 10 years leading up to Furman,” Dunham said. “There is no question that if that same Supreme Court were in existence today, the death penalty would be declared unconstitutional.”

Chief Justice Warren Burger led the court in 1972, however, and it was a far different court than today’s conservative Supreme Court. The nation has changed as well since 1972, when a high percentage of the public believed that the U.S. justice system was second to none and that if someone ended up on death row, they probably deserved it, Dunham said.

Because of the trends, Cassandra Stubbs, director of the American Civil Liberties Union Capital Punishment Project, sees a future without the death penalty.

“We really are seeing the last gasp here of the death penalty,” Stubbs said. “There’s just really no question about it. These trend lines are all moving in the same direction.”

If the Supreme Court will revisit the question of whether the death penalty violates the Eighth Amendment, Stubbs said, it will indicate a questioning of the nation’s evolving bounds of decency.

“We’re meeting many of the benchmarks that we thought would be necessary for the Supreme Court to recognize an Eighth Amendment violation,” Stubbs said. “When it’s truly just a tiny handful of counties in a very random and biased process, it’s very difficult to see how that squares with our constitutional guarantees.”

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a right-wing group that favors the death penalty, said he does not foresee abolition of capital punishment. Even in liberal California counties, he said, juries have decided some crimes deserve capital punishment.

Jurors even in liberal counties, Scheidegger said, “still occasionally get a murder so horrible that a jury will say, ‘Yes, this is the exceptional case. This is the one that really has to be punished by death.’”

Also this year, Louisiana became the third state to suggest carrying out executions by nitrogen hypoxia. Scheidegger said this may be a better execution protocol than lethal injection because the materials are easy to acquire and the method is painless. Scheidegger said he knows this from personal experience, as he had to experience hypoxia during flight training in the Air Force.

“Nobody’s implemented it yet, Scheidegger said. “I think every state wants another one to go first because whoever goes first is going to be embroiled in litigation.”

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