Will the Death Penalty Ever Die?

In The Contradictions of American Capital Punishment, Boalt Hall Professor of Law Franklin E. Zimring attempts to resolve several major conundrums about the death penalty in the United States.

Zimring does a laudable job of answering these lingering, troubling questions. He also suggests that U.S. death penalty support is waning, but explains why true abolitionism here–commonplace in Western Europe–may be long in coming to America.

Why Is the U.S. So Committed to the Death Penalty?

Two major questions Zimring addresses are these: Why is the U.S. the only developed Western nation to currently have the death penalty? And, what is it about our history and culture that supports our affinity for this ultimate use of government power?

Western European countries have rejected capital punishment as a matter of fundamental political belief–the deeply-held belief that no civilized state should execute its citizens. To these countries, execution is now as unthinkable as slavery or cannibalism.

In contrast, capital punishment is ensconced firmly in the American tradition. Of the 50 states, a strong majority of 38 has chosen to have the death penalty.

Nevertheless, in practice, three-quarters of executions occur in the South and in Arizona. Moreover, a handful of southern states account for most of these executions–withTexas, Virginia, and South Carolina leading the pack.

Zimring suggests that the reason for the predominantly Southern character of the American death penalty is cultural. The death penalty culture of the contemporary South, he argues, comes from the same culture of vigilante justice that once led to lynchings.

To prove his point, Zimring offers an appendix that shows a strong, direct correlation between a state’s rank in number of lynchings, and number of executions. His statistics should give pause to anyone who believes that the death penalty is somehow the product of reasoned deliberation, rather than simple mob vengeance.

What Will Happen to the Death Penalty in America?

Zimring also asks this further question: What is the future of the death penalty in the U.S.?

In Gregg v. Georgia, in 1976, the Supreme Court laid down guidelines for imposition of capital punishment. Ironically, however, in the states where the death penalty is strong, there have been more, not fewer, executions since then.

What accounts for this? Zimring cites two main causes. First, federal habeas corpus review of state death sentences has been sharply limited, especially in the 1996 Antiterrorism and Effective Death Penalty Act. Second, victims’ rights groups, and victims’ families, continue to be involved in the prosecutorial process, weighting it towards imposition of the death penalty. Most prosecutors seek input from the victim’s family in deciding whether to seek the death penalty. Several states allow families to witness executions.

Nevertheless, despite these developments, Zimring suggests that overall, the American people’s approval for the death penalty is waning. The main reason for this, Zimring suggests, has been recent findings that innocent people were on death row awaiting execution–and the companion realization that in the past, many who should have been exonerated, must have been executed instead.

According to data maintained by the American Civil Liberties Union, between 1973 and 2003, 110 death row inmates in 25 states were found to be innocent and released from death row. More than half of these exonerations occurred in the last 10 years. The advent of DNA testing has also been helpful in convincing the public that the execution of innocents is a reality, and that this atrocity is actually shockingly common. Notably, it was this concern that led former Illinois Governor Jim Ryan to commute the death sentences of all the condemned men in Illinois.

An Administration Far Out of Step with U.S. and World Death Penalty Opinion

Meanwhile, however, we have a President and Attorney General who are obsessed with the death penalty, and thus out of sync with the evolving trend. One sign of this is that since 2001, while Attorney General Ashcroft has sought the death penalty in 18 cases (often against the wishes of his prosecutors), the sentence has actually been handed down in only a single case.

While governor of Texas, Bush presided over a staggering 152 executions. He has assures us that he never signed the death warrant for an innocent person. But records of communications between Bush and his now-White House Counsel, and then-State House counsel Alberto Gonzales, indicate that Bush engaged in only perfunctory (if that) review of death sentences, as FindLaw Columnist John Dean has discussed.

In light of this revelation, the chance that Bush never allowed the execution of an innocent person–or one whose trial process was grossly deficient–seems slim indeed. And Bush’s casual review of life-or-death decisions seems to betoken an extremely casual attitude about the death penalty. During the 2000 presidential campaign, Bush even ridiculed the clemency plea of death row inmate Karla Faye Tucker.

Bush’s attitude is far different from that of the American people, who are concerned about death penalty injustices, and that of U.S. allies. Moreover, foreign leaders–as Zimring notes–are increasingly willing to criticize and stigmatize the U.S.’s devotion to the death penalty.

Recently, British Prime Minister Tony Blair demanded that two British subjects held on Guantanamo Bay as enemy combatants not be considered death-eligible in their military tribunal trials. Bush capitulated.

In addition, Germany and France–which have cooperated greatly with the U.S. in hunting down and capturing Al Qaeda operatives–have sought to ensure that the information they provide the U.S. cannot be used to seek a death sentence for terrorists brought to trial in the U.S.. France sought such a concession in the case of Zacarias Moussaoui.

The Court: Some Hope for Curtailing the Use of the Death Penalty, But Not Much

Some progress has also been made in the U.S. Supreme Court, but it has been limited. In its recent decision in Atkins v. Virginia, which I discussed in a column for this site, the Court held that the mentally retarded cannot constitutionally be executed. Justice O’Connor wrote the Atkins decision, and also was heard to remark in 2001, that “if statistics are any indication, the system may well be allowing some innocent defendants to be executed.”

In the upcoming October Term 2003, the Court will confront the question of whether it is constitutional to execute the mentally ill–and may well reach a similar conclusion. But the future is less hopeful. The Court may well become even more rightward-leaning if Bush is re-elected and Justices retire, as several are expected to do. If O’Connor, one possible retiree, is replaced by a strongly pro-death-penalty Justice, the Court’s death penalty jurisprudence might even worsen.

With virtually, and perhaps literally, no chance of the Court striking down all–or even most–death penalty applications, States will still be able to apply the penalty if they so choose. And even if America continues to undergo a sea change in death penalty opinion, if that change does not reach the death-happy Southern states that are most prone to apply the penalty, it may do little practical good. Death row inmates were laudably freed in Illinois–but when, if ever, will they be freed in Texas?

Chipping Away at the Death Penalty, But Not Abolishing It

Overall, Zimring’s findings indicate that public and judicial sentiments remain focused on what are perceived to be the most egregious death penalty abuses, and not on the abolition of the penalty itself. Yet the death penalty is inherently flawed, not simply problematic.

Condoleezza Rice called slavery the “birth defect” of the American republic. The death penalty is likewise a congenital deformity. There is a cure, but it will require a continuing shift in public opinion. We are likely to be living with the death penalty for the foreseeable future.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net


More articles by:
Weekend Edition
July 20, 2018
Friday - Sunday
Paul Atwood
Peace or Armageddon: Take Your Pick
Paul Street
No Liberal Rallies Yet for the Children of Yemen
Nick Pemberton
The Bipartisan War on Central and South American Women
Jeffrey St. Clair
Roaming Charges: Are You Putin Me On?
Andrew Levine
Sovereignty: What Is It Good For? 
Brian Cloughley
The Trump/NATO Debacle and the Profit Motive
David Rosen
Trump’s Supreme Pick Escalates America’s War on Sex 
Melvin Goodman
Montenegro and the “Manchurian Candidate”
Salvador   Rangel
“These Are Not Our Kids”: The Racial Capitalism of Caging Children at the Border
Matthew Stevenson
Going Home Again to Trump’s America
Louis Proyect
Jeremy Corbyn, Bernie Sanders and the Dilemmas of the Left
Patrick Cockburn
Iraqi Protests: “Bad Government, Bad Roads, Bad Weather, Bad People”
Robert Fantina
Has It Really Come to This?
Russell Mokhiber
Kristin Lawless on the Corporate Takeover of the American Kitchen
John W. Whitehead
It’s All Fake: Reality TV That Masquerades as American Politics
Patrick Bobilin
In Your Period Piece, I Would be the Help
Ramzy Baroud
The Massacre of Inn Din: How Rohingya Are Lynched and Held Responsible
Robert Fisk
How Weapons Made in Bosnia Fueled Syria’s Bleak Civil War
Gary Leupp
Trump’s Helsinki Press Conference and Public Disgrace
Josh Hoxie
Our Missing $10 Trillion
Martha Rosenberg
Pharma “Screening” Is a Ploy to Seize More Patients
Basav Sen
Brett Kavanaugh Would be a Disaster for the Climate
David Lau
The Origins of Local AFT 4400: a Profile of Julie Olsen Edwards
Rohullah Naderi
The Elusive Pursuit of Peace by Afghanistan
Binoy Kampmark
Shaking Establishments: The Ocasio-Cortez Effect
John Laforge
18 Protesters Cut Into German Air Base to Protest US Nuclear Weapons Deployment
Christopher Brauchli
Trump and the Swedish Question
Chia-Chia Wang
Local Police Shouldn’t Collaborate With ICE
Paul Lyons
YouTube’s Content ID – A Case Study
Jill Richardson
Soon You Won’t be Able to Use Food Stamps at Farmers’ Markets, But That’s Not the Half of It
Kevin MacKay
Climate Change is Proving Worse Than We Imagined, So Why Aren’t We Confronting its Root Cause?
Thomas Knapp
Elections: More than Half of Americans Believe Fairy Tales are Real
Ralph Nader
Warner Slack—Doctor for the People Forever
Lee Ballinger
Soccer, Baseball and Immigration
Louis Yako
Celebrating the Wounds of Exile with Poetry
Ron Jacobs
Working Class Fiction—Not Just Surplus Value
Perry Hoberman
You Can’t Vote Out Fascism… You Have to Drive It From Power!
Robert Koehler
Guns and Racism, on the Rocks
Nyla Ali Khan
Kashmir: Implementation with Integrity and Will to Resolve
Justin Anderson
Elon Musk vs. the Media
Graham Peebles
A Time of Hope for Ethiopia
Kollibri terre Sonnenblume
Homophobia in the Service of Anti-Trumpism is Still Homophobic (Even When it’s the New York Times)
Martin Billheimer
Childhood, Ferocious Sleep
David Yearsley
The Glories of the Grammophone
Tom Clark
Gameplanning the Patriotic Retributive Attack on Montenegro