Capital punishment hangs on
Why the death penalty’s complete elimination is a long way off.
On January 17, 1977, spree killer Gary Gilmore was taken to an abandoned cannery behind the state prison in Utah. Strapped to an old wooden office chair, he stared out at a black curtain with five slits made for the deer rifles held behind the partition by five anonymous prison guards. Gilmore had famously clamored for his own execution and when asked for his final words, simply said, “Let’s do it.” He became the first prisoner to be executed in America after the Supreme Court’s rehabilitation of the death penalty a year earlier.
Eight months after the bullets tore through Gilmore’s heart, France raised the blade of its guillotine one last time, beheading a Tunisian immigrant who had sexually tortured and strangled a young French nanny. Soon after, Western Europe became a region where governments do not kill in order to demonstrate that killing is wrong. Scores of countries elsewhere, from Mexico and the Philippines to Cambodia and Rwanda, have also forsaken punishment by death. The United States has chosen a different course. Lethal injections, electrocutions, and other means of judicial death have become an eye-catching case of American exceptionalism, but there are signs that the country is finally becoming less exceptional in this regard.
Last year, state and federal courts put 37 inmates to death, the lowest number since 1994. This year, there has been a spike in executions—30 altogether, 16 in Texas alone—attributable largely to a backlog caused by a series of stays issued by the Supreme Court as it considered the constitutionality of lethal injections, stays lifted once the Court reaffirmed this preferred method of execution in April of last year. Still, the trend is clear. Executions have dipped steadily since the high-water mark of 98 a decade ago; death sentences have dropped dramatically from 328 in 1994 to 111 this past year. Capital punishment is in slow decline.
A number of states are thinking of shuttering their death houses entirely. With the most fanfare, New Mexico repealed its death-penalty statute in March, a year and three months after New Jersey had lifted its statute (New York, the only other state to abolish the death penalty in recent times, did so by court order in 2004). Following New Mexico’s repeal, the state’s Catholic Democratic governor, Bill Richardson, met briefly with Pope Benedict in April before being feted, together with Archbishop Michael Sheehan of Santa Fe, at a ceremony in the Roman Colosseum, where the nighttime illumination turns from white to gold each time a death sentence is commuted or a jurisdiction outlaws the practice. (The events were orchestrated by the Sant’Egidio Community, a lay Catholic association of special note in the international campaign to stamp out capital punishment.)
Last month in Colorado, an uprising against the death penalty was put down by a one-vote margin in the state senate, after taking the house by the same margin. Later in the month, a bill to abolish capital punishment cleared the Connecticut legislature, only to await veto by Governor M. Jodi Rell. In March, an effort to get rid of the death penalty in Maryland resulted in one of the most restrictive death-penalty laws in the country. Repeal movements have launched promisingly in Illinois, New Hampshire, and Kansas.
By most accounts, the machinery of capital punishment in the United States has slowed down primarily due to fears that innocent people are being fed into it. Since 1973, 133 death-row inmates have been exonerated; over the past decade, there have been on average five exonerations per year, thanks largely to the evidentiary wonders of DNA. With state budgets in crisis, the costs of death have been weighed as well. In Maryland, for instance, partly because of appeals and delays, cases that result in a death sentence cost an average of $3 million each, nearly three times the cost of cases where prosecutors do not seek the death penalty, according to a report in March by the Urban Institute. Richardson, until recently a proponent of capital punishment, cited dwindling resources as one reason for his signing the repeal in New Mexico. Notwithstanding the religious backdrop of his victory lap in Rome, Richardson stopped short of declaring capital punishment absolutely wrong, but he acknowledged the grave difficulty of applying it responsibly—referring to practical problems (racial inequities and judicial failures) to back up his decision.
The moral costs of capital punishment—how it subverts what Pope John Paul II called a “culture of life”—aren’t conspicuously a factor in these reevaluations. “People haven’t had a moral revolution about this,” anti-death-penalty activist Richard Dieter told me in a telephone interview. He directs the Death Penalty Information Center in Washington, where he also teaches a seminar on capital punishment at Catholic University of America Law School. Of people and politicians generally, he says, “They’re still committed to it [capital punishment] in theory, and it doesn’t oppose their moral values.”
The likelihood that an innocent person will be executed is undoubtedly a persuader in the debate over whether the death-penalty system is working. But it’s also true that death-row inmates are, by and large, guilty as hell. People and politicians would like to reserve the option of executing these criminals even while raising the bar of certainty in capital cases. The steady revelations of innocence in recent years haven’t disturbed public assumptions. According to a Gallup survey last November, support for the death penalty remains high, with 64 percent in favor of it and just 30 percent opposed. The poll found that nearly half of all Americans believe the death penalty isn’t imposed often enough, although in some other surveys, roughly half have favored life without parole over death.
Costs are the worry of the moment, but they are not by themselves a detonator of abolitionist passion. In Colorado, death-penalty abolitionists made an exceedingly practical argument: The money swallowed by capital cases would be better spent investigating unsolved murders. Legislators responded to this argument by pledging new money for cold cases-and putting away the repeal measure.
There are limits to what pragmatic arguments can do for the anti-death-penalty cause, but there are also limits to what moral arguments can do. There has been a movement of conscience against capital punishment ever since Gary Gilmore went before the firing squad in Utah. That movement has grown, to be sure, but Dieter speaks with experience when he says, “It’s never been enough.”
Put another way, current skepticism surrounding the death penalty hasn’t graduated to the level of general opposition. And, the moral opposition (with a footing in Catholic dioceses and state councils of churches) hasn’t shown it could markedly alter the political geography of capital punishment in America.
Where does this leave the repeal movement? In not a bad place—if the intent is to discredit capital punishment rather than to effect sweeping moral conversion. Various perspectives in the body politic—philosophical, pragmatic, and procedural—have coalesced to exert the greatest pressure against capital punishment in the thirty-three years since it was reinstated. Second thoughts in many quarters, together with the decrease in executions, have put the idea in some minds that, in Dieter’s words, “the death penalty may be something of a twentieth-century phenomenon that’s not going to survive very long in the new era.”
That hopeful thought aside, there’s a barbed wire fence separating America from the death-penalty-free world, and that fence is Texas. Even if death-penalty statutes were to start disappearing in the other thirty-four states where they are on the books, the United States would still be exceptional because Texas executioners are among the busiest in the world, dealing death more often than their counterparts in such execution-friendly countries as Japan, Indonesia, and Afghanistan. Since 1976, Texas has accounted for close to 40 percent (439) of the 1166 executions in the United States, and more than half the total so far this year.
Some way of isolating Texas should be a goal for abolitionists. Under a plausible scenario, after a preponderance of states had abandoned the practice, the Supreme Court (with a few new faces) could declare capital punishment “cruel and unusual,” as it did once before, in 1972. But that’s still way down the line. It’s likely this particular institution will remain all too common for some time to come.