By William Fisher
The death penalty may be on the way out.
Sentences to the ultimate punishment began their downward trajectory in the late 1990s, and in the 15 years between 1996 and 2011 death sentences declined about 75 percent. In 1996, 315 individuals were sentenced to death.
New death sentences dropped to 78 in 2011, representing a dramatic decline from last year’s number of 112 and marking the first time since capital punishment was reinstated in 1976 that the country has produced fewer than 100 death sentences in a single year.
These are some of main findings in the annual report of the Death Penalty Information Center (DPIC), based on data as of mid-December 2011. The DPIC is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment.
“Many of those challenging the death penalty now had defended it in the past, including people who introduced death penalty legislation or presided over executions. The multitude of problems associated with the death penalty is gradually convincing Americans that it can no longer be sustained,” the Report says.
The Report also notes that Executions have also steadily decreased nationwide, with 43 in 2011 and 46 in 2010, representing a 56 percent decline since 1999, when there were 98. Texas had 13 executions in 2011, and 24 in 2009, representing a 46 percent drop over two years.
Further information on these data is contained in “The Death Penalty in 2011: Year End Report” which can be found at www.deathpenaltyinfo.org
“This year, the use of the death penalty continued to decline by almost every measure. Executions, death sentences, public support, the number of states with the death penalty all dropped from previous years,” said Richard Dieter, DPIC’s Executive Director and the report’s author. “Whether it’s concerns about unfairness, executing the innocent, the high costs of the death penalty, or the general feeling that the government just can’t get it right, Americans moved further away from capital punishment in 2011.”
Many states with the death penalty on the books, including Maryland, South Carolina, Missouri, and Indiana, had no new death sentences this year. California had a sharp drop in death sentences in 2011, decreasing by over half since 2010 when there were 29 sentences. Repeal of the death penalty is likely to be on the ballot in that state next year.
The declining numbers occurred in the context of three significant developments in the evolution of capital punishment this year:
· Illinois Governor Pat Quinn signed legislation to repeal the death penalty, making Illinois the fourth state in four years to abandon capital punishment. A commission reported that the state had spent $100 million on assisting counties with death penalty prosecutions while the state’s deficit grew to one of the country’s largest.
· Many Americans were shocked to learn that a man, Troy Davis in Georgia, could be executed in spite of strong doubts about his guilt. Several key witnesses recanted their testimony against Davis, causing even death penalty supporters like former U.S. Rep. Bob Barr to state: “Imposing a death sentence on the skimpiest of evidence does not serve the interest of justice.”
· Oregon Governor John Kitzhaber stopped a pending execution and ordered that no others would occur during his term. Governor Kitzhaber, who oversaw two executions in the 1990s, urged citizens to “find a better solution” to a system that he said is arbitrary, expensive and “fails to meet basic standards of justice.”
Also this year, the Report noted, the Gallup Poll, which measures the public's support for the death penalty without offering alternatives, recorded the lowest level of support and the highest level of opposition in almost 40 years. Some 61 percent supported the death penalty, compared to 80 percent in 1994. Thirty-five percent were opposed, compared to 16 percent in 1994. A more in-depth CNN poll gave respondents a choice between the death penalty and life without parole for those who commit murder. Fifty percent chose a life sentence, while 48 percent chose death.
One clear sign of increasing discomfort with the death penalty has been the decline in the number of states with capital punishment in effect. Illinois joined New Mexico, New Jersey, and New York in abandoning the death penalty, marking an 11% decline in death penalty states since 2007.
Death Penalty Statistics 2011 2010 2000
Executions 43 46 85
New Inmates Under
Death Sentence 78 112 224
Death Row population
(As of Jan. 1) 3,251 3,261 3,652
Percentage of executions by region:
South (32 executions) 74% 76% 89%
Texas (13) 30% 40% 47%
Midwest (6) 14% 17% 6%
West (4) 12% 7% 5%
Northeast (0) 0% 0% 0%
Executions Since 1976: 1,277
Texas 477 (37%)
Virginia 109 (9%)
Oklahoma 96 (8%)
Report data show that three states combined – Texas, Virginia and Oklahoma – meted out 682 death sentences since 2976. That represents 53 per cent of all executions in the US. Most US executions occur in the South.
The number of new death sentences dropped dramatically in 2011, falling below 100 for the first time in the modern era of capital punishment. Executions also continued to decline, while developments in a variety of states illustrated the growing discomfort that many Americans have with the death penalty.
Illinois abolished the death penalty in 2011, the governor of Oregon declared a moratorium on all executions, and a national outcry was heard around the execution of Troy Davis in Georgia because of doubts about his guilt.
In January, the Illinois legislature voted to repeal the death penalty, replacing it with a sentence of life without parole. The legislation requires some of the money saved by this action to go to victims’services and crime prevention. Governor Pat Quinn signed the bill, making Illinois the fourth state in four years to abandon capital punishment. A state commission reported $100 million had been spent on assisting counties with death penalty prosecutions over the past seven years, while the state’s deficit had become one of the largest in the country.
Illinois had not had an execution in 12 years.
In Georgia, the report declared, a very different scenario played out, but it also exposed deep concerns about the use of the death penalty. On September 21 Georgia executed Troy Davis, despite significant doubts about his guilt and urgent requests from national and international leaders to spare his life.
Davis had been convicted principally on the basis of eyewitness testimony, a form of evidence that has recently come under increasing scrutiny.
The U.S. Supreme Court recently considered Perry v. New Hampshire, a case questioning the validity of eyewitness testimony when the identification was made under unreliable circumstances. At the same time, years of scientific study on the accuracy of human memory are pointing to the need for reform in the use of eyewitness evidence in criminal cases.
Barbara Tversky, a psychology professor at Columbia University, whose experiments on memory were reported in the journal Cognitive Psychology, noted, “Memory is weak in eyewitness situations because it’s overloaded. An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”
About 75% of DNA-based exonerations have come in cases where eyewitnesses have made mistakes. Scientists suggest that witness testimony should be viewed more like trace evidence, with the same fragility and vulnerability to contamination. Strong emotions felt by victims of a crime is one such possible area of contamination. Gary Wells, a psychology professor at Iowa State University, found that the accuracy of lineups improves when the possible suspects are presented to witnesses in sequence, rather than all at once, as in the traditional lineup. The downfall of side-by-side lineups, Dr. Wells said, is that “if the real perpetrator is not in there, there is still someone who looks more like him than the others.” The Supreme Court of New Jersey recently promulgated new rules for dealing with the problems of eyewitness identification.
Years after his trial, 7 of the 9 state witnesses against Davis changed their stories. A federal judge in Savannah conducted a hearing to review this new evidence, but in order to grant Davis a new trial the judge required not only that he establish reasonable doubt of his guilt, but that he provide clear proof of his innocence, which he was unable to do to the judge’s satisfaction.
A former head of the FBI, along with former judges, prosecutors, and elected leaders from around the country urged the Board of Pardons and Paroles to intervene to prevent a miscarriage of justice. Citizens protested in front of the White House, the Supreme Court, and the Georgia prison where the execution took place. Similar demonstrations occurred in cities around the world.
People were shocked that in the U.S. someone could be executed despite so much doubt about his guilt. When Davis was denied clemency, former U.S. Rep. Bob Barr of Georgia said, “Imposing a death sentence on the skimpiest of evidence does not serve the interest of justice.”
Even former supporters of the death penalty found the process so inflexible and unresponsive that they were convinced the system is not working. President Jimmy Carter said, "If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated."
Finally, in Oregon on Governor John Kitzhaber halted a pending execution and declared that no additional executions would occur during his tenure. He urged the legislature and the people of the state to seek a sensible way to address serious crime: "I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon values," he stated. "I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor."
Figuring out the ‘why’ of the death penalty’s decline is complicated. But the statements of governors who have the life and death responsibility may shed some light on the underlying reasons.
Governor John Kitzhaber of Oregon put a halt to executions in 2011, stating,” Oregonians have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer.”
Gil Garcetti, the former district attorney of Los Angeles who pursued numerous death sentences, said California's death penalty is dysfunctional and the resources spent on it should be diverted to more pressing needs.
"California's death penalty does not and cannot function the way its supporters want it to. It is also an incredibly costly penalty, and the money would be far better spent keeping kids in school, keeping teachers and counselors in their schools and giving the juvenile justice system the resources it needs. Spending our tax dollars on actually preventing crimes, instead of pursuing death sentences after they've already been committed, will assure us we will have fewer victims."
Garcetti said the death penalty causes ongoing torment to the family members and friends of murder victims: "The living victims of a particular crime might think that a death verdict provides closure, but for most, there was no such closure."
Many of those who have analyzed the system of capital punishment, including leaders in law enforcement, former supporters of the death penalty and victims’ families, have concluded the system is seriously flawed. Among those who spoke out this year were:
Dr. Allen Ault, a retired Georgia prison warden, underscored the difficult issues prison officials face when participating in an execution: "You're killing somebody. And there’s no denying that, especially when we know that several people have been declared innocent with the new scientific techniques, and we're not real sure if the individual we're executing this evening or next week is really guilty -that in itself, that kind of doubt. The other thing most of us know [is] all the research which indicates that capital punishment does not deter . . . it seems so illogical to say to the public we do not want you to kill, and to demonstrate that, we're going to kill individuals."
Kathryn Gaines, Rita Shoulders, Victoria Cox and Ruth Lowe had someone in their family murdered but believe a death Sentence for the killers would only deepen their personal wounds. Shoulders lost her sister to murder; Cox lost her brother; Lowe also lost her brother; and Gaines her eldest grandchild. Ruth Lowe said of the man who killed her brother, "I’m learning to forgive. And even if I had the chance, I wouldn’t want him Year executed. It would do nothing for me; it would do nothing for the rest of my family. To take his life would make no sense.” Kathryn Gaines said, "You cannot bring a life back by taking away another life. It hurts a whole family."
Former New York Governor Mario Cuomo advocated for a sentence of life without parole to replace the death penalty: "There is a punishment that is much better than the death penalty: one that juries will not be reluctant to impose; one that is so menacing to a potential killer, that it could actually deter; one that does not require us to be infallible so as to avoid taking an innocent life; and one that does not require us to stoop to the level of the killers."
Don Heller, a Republican former prosecutor and author of the 1978 ballot initiative that greatly expanded California's death penalty law, now says, "I never contemplated the staggering cost of implementing the death penalty: more than $4 billion to date and approximately $185 million projected per year in ongoing costs. . . . It makes no sense to prop up such a failed system.”
But for many, the following statement carries the highest level of credibility: It comes from Jeanne Woodford, former Warden of San Quentin prison in California.
She said of the death penalty, “The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution." She added, “There comes a time when you have to ask if a penalty that is so permanent can be available in such an imperfect system. The only guarantee against executing the innocent is to do away with the death penalty.”