In March 2019, California Governor Gavin Newsom announced a moratorium on the death penalty and that he will grant clemency to all 737 people on death row in San Quentin. While this was a bold move, Gov. Newsom actually cut the cord on a punishment that was already at the end of its rope. In the past, Governors who declared a halt to executions took political risks, but Gov. Newsom’s decision very much reflects popular opinion about the death penalty – and criminal justice more broadly. This decision dramatically shrinks death row: itself an expensive, multibillion-dollar failed government enterprise. The total death row population in the U.S. will fall by one quarter, to about 2,000 people, the lowest since 1987.
However, it is not just executions that have slowed down, but death sentences themselves. In my recent book, End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice, I describe the remarkable story of the American Death Penalty decline. In the United States, we still have the death penalty in the books in most states, but it is only actually imposed in a few isolated counties. Just 39 people were sentenced to death last year. In the mid-1990s, by contrast, over 300 people were sentenced to death each year, in as many as 200 hundred counties per year.
For an example, take the case of John “Jose” Rogers, who was convicted of capital murder in Stafford County, Virginia, in 2006. His lawyer asked the jury to spare his life. While there was «no way to make this right», his lawyer said, «if you lock this man up in the kind of prison that he will be in for the rest of his life, [then] no one can say to you that that’s not justice. It’s justice tempered with mercy». The jurors deliberated that evening and for most of the next day. Then they announced their verdict: life without the possibility of parole. A Virginia jury had rejected the death penalty. At the four-day sentencing hearing, the team presented twenty-one witnesses and showed how Rogers was the victim of horrifying abuse by his father, who beat and tortured him, making his childhood «a virtual experiment in atrocity, in brutality». I describe how such outcomes are now commonplace in Virginia, where there has not been a single death sentence imposed since 2011. Yet, in the 1990s, death sentences were commonplace. Trials of this type were perfunctory. I describe how even innocent people like Earl Washington Jr. were sentenced to death at one-day trials in Virginia.
I argue that the death penalty is fading away at this local level, without any major changes coming at either the national level, from the U.S. Supreme Court, or at the state level, from state lawmakers or Governors. In Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country. I am not sure that it matters when or whether the U.S. Supreme Court abolishes the death penalty legally. The death penalty will have already largely disappeared, due to the hard work of lawyers and a growing realization, that the death penalty serves no useful purpose.
The causes of a startling decline in death sentencing run deep. I investigate empirically, what explains this decline and created a data resource website, where one can examine detailed data concerning all death sentences in the United States since 1991.
One major factor in the death sentencing decline has been improved lawyering for the defense. Inadequate defense lawyering is a problem in all criminal cases, not just death penalty cases. When jurors hear about mental health and other evidence about a defendant’s background, they increasingly reject the death penalty. In Virginia, death penalty trials used to be pro forma. Now lawyers actually call witnesses, at more meaningful trials that last weeks. In my book I describe some of the stories from recent death penalty trials where jurors have rejected death sentences. I describe how, when people hear the full story, jurors often reject death.
A second related factor is cost. Very few counties in the entire country, still impose death sentences. Those that do are almost all large, densely populated counties; the death penalty has almost entirely disappeared from rural America. As prosecutors increasingly lose, before the jury, when they seek the death penalty, they become even more reluctant to impose the costs of a prolonged capital trial. In my book, I describe how prosecutors in some of the counties that for years dominated American death sentencing, are no longer seeking the death penalty.
A third factor is the decline in homicide rates that began in the mid-1990s. What is remarkable about that decline, is that there is a close association between death sentencing rates in counties and homicide rates in counties. However, that association, when you unpack it, betrays a troubling fact: white lives matter more. My colleagues and I found no association between homicides involving black victims and death sentencing rates. We found a strong association between homicides involving white victims and death sentencing.
Fourth, a kind of “muscle memory” dominates death sentencing: counties that sentence people to death are far more likely to keep doing so. The flip side is that once counties stop death sentencing, they are also likely to remain free of death sentences. These deepening trends, as fewer counties impose death sentences, may be quite likely to stay fixed in place.
More troubling, many states replaced the death penalty with what amounts to a virtual death sentence – life without possibility of parole. My colleagues and I found a significant, but quite small effect of state adoption of such sentences and decline in deaths sentences. However, while death sentences have reached record lows, life without parole sentences has reached record high levels. Over 50,000 people are now serving such life without parole sentences. During an era of steadily declining homicide rates, this explosion in such extreme sentences are totally unwarranted.
In addition, people are correctly concerned with the possibility of wrongful convictions. California has had death row exonerations; most recently, Gov. Newsom ordered DNA testing in the case of Kevin Cooper, who claims innocence. There have been twenty DNA exonerations of death row inmates and over a hundred more non-DNA death row exonerations. We have no idea how many people who were in fact innocent have been executed, but we do know how flimsy the evidence was in many death penalty cases in the 80s and 90s. However, we have had over two thousand death row exonerations in the U.S., mostly not in death penalty cases.
People are closely divided in polls about whether they support the death penalty in the abstract, but views quickly become more complex when you pose more specific questions to people about death and the alternatives. In a survey of nearly 500 Orange county jurors, psychologists Nicholas Scurich, Daniel Krauss and I found that even the most steadfast death penalty supporters, when told that there had been no legal way to executive for that many years, said they did not support it. One-third of the jurors, in a fairly conservative county, would not quality for a capital jury because they admitted they opposed the death penalty on principle. We were more surprised at the large numbers of both conservative and liberal jurors who said they would not even convict a person of capital murder, knowing that the death penalty might result.
If the end of America’s botched experiment with death sentencing has been coming since the late 1990s, then why should we care about the last nails in its coffin? The end of the death penalty has greater implications for the future of criminal justice generally. During the same time period that the United States created its largest death rows, we also created world-record levels of incarceration in prisons and in jails. Now, the death penalty has faded and the decline in the use of the ultimate punishment can point the way towards reduced use of lesser punishments. Many now seek an incarceration decline, for some of the same reasons: inhumanity of severe punishments, ubiquity of wrongful convictions, enormous financial costs, and possibility for human redemption.
In my book, I argue that by using the same tools, focusing on rehabilitation, on defense lawyering, mental health screening, on needs rather than revenge, we can revive criminal justice. The closing of our largest death row in America marks an end. Gov. Newsom says he «will not oversee the execution of any individual».
For American criminal justice, that end can herald a new beginning.