In June, US Supreme Court Justices sparred over the side issue of whether the death penalty ought to be unconstitutional in a case that was really about the use of execution drugs. But outside of that debate is the fact that the death penalty is on life support. The debate that the Justices had was a trailing edge debate for the transformation of the nation.
Yesterday, once again, we were shown that the death penalty is on the wane. The most recent example is the decision coming out of a Colorado courtroom where a decision, surprising many, resulted in the notorious 2012 shooting rampage gunman getting life without parole, rather than the death penalty.
The verdict was not unanimous by any stretch, with nine jurors favoring death, two unsure, and one holding out for a life sentence. In Colorado, death sentences must be unanimous. A single dissenting juror makes the sentence be life rather than death.
The nation remains divided on the issue. The New York Times reported the reaction was mixed: “Some families in the gallery cried quietly or slumped in their chairs; one man stormed out of the courtroom. Many had wanted death for the man responsible for so much carnage, but others had said they simply wanted the ordeal to be over, and had hoped to avoid the years of appeals that a death sentence would bring and focus instead on their families and memories of loved ones.”
But the trend in this country is once again moving away from the death penalty. It wasn’t long ago that few politicians were willing to oppose the death penalty. They saw how Michael Dukakis, the 1988 presidential candidate, was buried not only on the issue but by his poor handling of the issue. In 1992, Bill Clinton, strongly in favor of the death penalty at that time, would fly back to Arkansas during the primaries to carry out a death sentence.
It is not one issue that is changing the view. There is the view that the death penalty system is not fair, with a disproportionate number of minorities serving death sentences, even compared to their percentage of the population.
There is the work of the Innocence Project to highlight the problem of wrongful convictions. Samuel Gross, on July 24 in the Washington Post, noted that in 2014 he co-authored a study that found, while the “rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable,” they have some known data on the percentage of defendants who are sentenced to death in the United States and who are later shown to be innocent.
That number is 4.1 percent, which does not seem overwhelming until you recognize that that means that 1 in 25 people who are sentenced to death turn out to be innocent.
As Mr. Gross points out, “Death sentences are uniquely well-documented.” He writes, “We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.”
In June, the ABA Journal found that a combination of faith and fiscal responsibility has caused many conservatives to change their view of the death penalty.
They point to the case of Henry Lee McCollum, who was on death row for 30 years in North Carolina for the brutal rape and murder of 11-year-old Sabrina Buie in rural North Carolina in 1983.
In September 2014, “Henry Lee McCollum, 50, on death row for 30 years, was exonerated after DNA evidence pointed to another man who lived a block from where the girl’s body was found. The man had admitted to committing a similar rape and murder around the same time.”
Writes the Journal, “If ever there was a case against the death penalty, opponents say, that was it. The difference is that now, 30 years later, many of those calling for an end to capital punishment in North Carolina are conservative Republicans who once supported it.”
“It’s an amazing case. We would have killed an innocent person,” says Ballard Everett, a Raleigh, North Carolina, Republican political consultant and coordinator for North Carolina Conservatives Concerned About the Death Penalty.
The ABA Journal notes, “Conservatives coming out against capital punishment are part of a broader movement among conservatives who are supporting criminal justice reform policies once largely the domain of liberal-minded politicians.”
Fiscal concerns are part of the factor here. For instance, “Right on Crime, a conservative policy group based in Austin, Texas, advocates keeping nonviolent offenders out of prison, reducing sentences and creating more accountability through community-based programs and drug treatment. The theory is that it will help reduce the cost of incarceration.”
Part of the problem is that spending on corrections has increased far faster than all other government services combined, and in most states it is now the third largest category of general fund expenditures.
Notes the ABA Journal, “Even the conservative Koch brothers—owners of Koch Industries—have joined in, contributing to a new coalition that includes both conservative and liberal organizations pushing for criminal justice reform. The group, the Coalition for Public Safety, includes such diverse organizations as the American Civil Liberties Union and Americans for Tax Reform, and it hopes to reduce prison populations, end overcriminalization and help reduce recidivism.”
Such factors have served to undermine the willingness of many to support the death penalty and it is showing up across the board from the willingness of governors to declare moratoriums to the willingness of legislatures, even in conservative Nebraska, to vote to end the death penalty altogether.
Last week, we cited a Texas article by four-time DA Tim Cole, now defense attorney in Fort Worth, who writes, “A jury verdict in a death penalty case earlier this year in Fort Worth is a microcosm of what is happening all over the state.”
He highlighted the 2011 case where “Gabriel Armandariz murdered his two young sons — one was 2 years old, the other 6 months old — by strangling them. He then hung the younger child’s body from a closet clothes rack, snapped a picture and sent it to the children’s mother.”
He called this horrific crime a case that would be an “automatic” death penalty, writing, “The facts were as bad as any I’ve seen, but after just eight hours or so of deliberation the jury rejected the death penalty and gave Armandariz life without parole. The lawyers were crying. The jury was crying. Trial observers were crying. What happened?”
“Ten years ago this would have been a swift death penalty decision. But no longer. Something is changing,” he writes, noting that, following that trial, there were two other cases in which prosecutors sought the death penalty, but which resulted instead in jury verdicts of life without the possibility of parole.
“These cases raise all kinds of questions: How much taxpayer money was spent on these ‘failed’ attempts to get death? Could these cases have been resolved years ago with a plea?” he continues. “Have these outcomes set a new standard for the death penalty? And, is there such a thing as an ‘automatic’ death penalty in Texas anymore? Perhaps not.”
Media outlets are starting to take note of the fact that more than seven months have passed since the Texas Department of Criminal Justice “received” a new inmate on Death Row.
Mr. Cole writes, “Considering the fact that Texas juries sentenced 48 people to death in 1999, this is an astonishing shift. According to legal experts, this also is the longest Texas has gone in a calendar year without a new death sentence.”
“Why the change?” he asks. “I believe it is happening because the problems with how the death penalty is assessed have become evident to everyone, including jurors. The ultimate punishment simply cannot be administered fairly, because it is run by human beings. And human beings make mistakes.”
He adds, “Even those who support the death penalty in theory surely would not argue that keeping it is worth the state taking even one innocent life.”
The case in Aurora, and the cases cited in Texas and in North Carolina, are not gray area death penalty cases. Maybe you can argue for reduced culpability in Aurora due to mental illness, but it was not enough to find not guilty by reason of insanity.
In short, they are driven by a combination of factors that have led very different groups of people to conclude that the death penalty is broken and cannot be reasonably fixed.
—David M. Greenwald reporting