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Why more Americans want to kill the death penalty

POSTED: April 6, 2015 2:29 p.m.
Eric Schulzke/

Today only 55 percent of Americans support the death penalty, down from 80 percent in 1994. If moral concerns about killing begin to merge with doubts about the government's ability to get convictions right, could the death penalty be on its way out?

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Editor's Note: This article is part of "The Ten Today," a series that examines the Ten Commandments in modern society. This story explores the sixth commandment, "Thou shalt not kill."

The use of the death penalty took a tumble in 2014. Just 35 executions were conducted in the U.S. last year, the fewest since 1994, and just 72 people were sentenced to death, the fewest in 40 years, according to the Death Penalty Information Center.

Public support for the death penalty has been on a steady downward curve since it reached a high of nearly 80 percent of Americans supporting it in 1994, according to Pew Research Center data. Today, 55 percent support capital punishment, Pew found, with large variations in ethnic groups. Blacks and Latinos are much more likely to oppose it.

Roughly half of death penalty supporters cite proportionality (the punishment fits the crime) as their primary reason, according to a 2011 Pew poll. Fifteen percent favor capital punishment because, they say, life in prison costs more. (Though most analysts agree it does not.) But most notably, Pew found that two popular grounds for support from 20 years before — deterrence and preventing the person from committing new crimes — are now cited by only 6 percent and 5 percent of Americans, respectively.

The drop in support for the death penalty seems to coincide with a wave of exonerations that followed the advent of DNA forensics. In fact, that same Pew poll found that 27 percent of those who oppose the death penalty cite a flawed legal system, up from 11 percent in 1991. Meanwhile, the percentage who gave moral or religious reasons for opposing the death penalty dropped to 43 percent from 58 percent.

Those shifts have been mirrored in state-level policy. In the past decade, six states abolished capital punishment, bringing the total of non-death penalty states to 18. With public opinion on a steady slide, many observers now see it as a just a matter of time before more states follow suit. Death penalty opponents ranging from agnostic law professors to religious leaders are doing what they can to nudge those doubts along. Just this month, Pope Francis issued an emphatic statement: “Today the death penalty is inadmissible," he wrote, "no matter how serious the crime committed."

Aligning the Catholic flock with its leadership on this issue has not been easy, but Catholic leaders like Anthony Granado, a policy adviser at the U.S. Council of Catholic Bishops, are increasingly hopeful. Granado hopes religious arguments over the ethics of the death penalty — traditionally a liberal cause — can merge with growing unease about the government's ability to get convictions right, playing into conservatives' distrust of government to create a powerful coalition that could lead to more changes in policy.

"These are people who don't trust the government to pick up their trash on Tuesday," Granado says, "let alone kill anyone."

Proving innocence

As the Pew data show, doubts about flawed government decision-making are now a central issue driving the debate. Part of this is due to a cottage industry that has grown up around proving innocence, leading to seven prisoners who at one point had been on death row being exonerated and released just last year, the Death Penalty Information Center reports.

We may never know how many people have been mistakenly convicted of capital crimes, says Samuel Gross, a law professor at the University of Michigan, but in an article he co-authored last year he offered a very precise estimate of how many death row inmates are being exonerated compared to other inmates.

Defendants on death row receive extraordinary case reviews over many years, Gross said. Often that means multiple teams of advocacy groups. Pro bono lawyers and law professors with student clinics will comb the files for any type of error. But most defendants do not stay on death row. Many are granted life sentence for various reasons, and that scrutiny then disappears, and exonerations fall off as well.

Gross and his co-authors wanted to figure out how many of those moved off death row would have been exonerated if they had stayed on track for execution over the decades of intensive review. So they took a strong statistical sample of death penalty cases that got moved off death row and compared them to those that stayed on.

"If this intense scrutiny had been applied for a long enough time, for decades, for everyone sentenced to death in our sample," Gross said, "then the rate of exoneration would have been 4.1 percent." And Gross believes this actually understates the number of wrongful convictions.

Most of these, Gross hastens to add, are not DNA exonerations, though these receive the most press. DNA is usually only available with sex crimes, and is increasingly dealt with at the trial level. Most false convictions are based on false or erroneous testimony, and not infrequently involve prosecutor malfeasance.

The most notorious case Gross points to involved a man named John Thompson in New Orleans who came within nine days of execution before a team of legal experts combing through old evidence boxes discovered that the prosecutors had hidden blood evidence that would have, and then did, exonerate him.

"No one disputes that Thompson was innocent," Gross said. The prosecutor who hid the evidence, Gross adds, since died of natural causes.

Gross says that a "fair number” of cases have followed this pattern: a convict whose innocence is now unquestioned barely gets exonerated in the face of a pending execution. “And most of these would almost certainly have served life sentences if they had not been given a death sentence,” Gross said.

The paradox lurking in Gross’s analysis, seemingly unavoidable but still maddening, is that abolishing the death penalty would lead to lower scrutiny for error, and thus keep more innocent people behind bars for life.

But that's a tradeoff Gross would be willing to accept, and he hopes that greater awareness of prosecutor malfeasance and eyewitness unreliability will continue to grow doubts about the irreversible sanction.

Real people

David Dow, a law professor at the University of Houston, says that of the 120 pro bono death penalty cases he has handled in the past 25 years, he is confident that seven were wrongly convicted, a ratio very close to Gross's findings. Of those, Dow said, two were executed, two walked free, and three are still caught up in the system.

But wrongful conviction is usually far from Dow's mind, and he knows nearly all of his clients are guilty. Dow says he was not against the death penalty when he started representing death row inmates. "I was not strongly in favor," he says, "but I was not very emphatic either way." As time went on and cases and experience piled up, he said he had two related "moments" that changed his mind.

The first he calls the "legal moment." He had expected that the death penalty would be given out predictably and fairly, with the most horrific murders getting the worst punishment. "Instead I found that it's a total crap shoot," he said, "and the dice are heavily loaded against perpetrators who are poor, and especially if their victims are white."

Dow says he could not rationalize starkly different treatment based on wealth in the criminal justice system, especially on the ultimate penalty.

Dow's second insight, his "human moment," came when he realized the people he was working with had changed since the time of their conviction. Many of them had committed their crimes when they were still quite young, Dow said, often between the ages of 18 and 22, before the prefrontal cortex — the section of the brain responsible for moral judgment and self-control — is fully developed, as neurologists now tell us.

"By the time we do execute them," Dow said, "the conversations I have just before execution are so different than when they arrived on death row, it's like you are talking to a completely different person."

In addition, there is the question of back stories. Dow says 76 percent of inmates on death row were in the juvenile system. And almost all of them, he found, came from traumatized childhoods of abuse and neglect. "It's easy to confuse explanation with excuse," Dow said. "But it's also very easy to think of people on death row as not being human beings."

In a TED talk filmed in 2012, Dow laid out the story of a death row inmate he had defended who never knew his father and whose schizophrenic mother had tried to kill him with a butcher knife when he was 5 years old.

Dow believes that if people were honest, they would recognize the societal failings that set up the dominoes toward violence. This, he hopes, would lead more focus on prevention and less on retribution.

"There are a lot of things we could do," Dow said, "to prevent kids from going there.”

Gospel of Life

Humane considerations like Dow's drive much of the opposition to the death penalty. But the policy is also under increased fire from religious groups.

Foremost among religious voices opposing the death penalty is the leadership of the Catholic Church, prominent Catholic leaders having long held that Christianity does not condone the penalty unless absolutely necessary to protect society. Not all religious philosophies agree; in Mosaic law, for instance, capital punishment for certain crimes was not considered a violation of the sixth commandment to not kill. But Catholic leaders refer to their opposition to abortion and capital punishment as part of a "seamless garment" of the Gospel of Life, offering what some believe is a uniquely consistent philosophical position that opposes both abortion and the death penalty — two stances often at odds in U.S. politics. Because of this, many think the Catholic position could bridge the ideological chasm of left and right.

As in other matters, Catholic opinion in the pews does not necessarily match the perspective at the pulpit. Catholics have consistently favored the death penalty in roughly the same ratios as the general population. The recent Pew poll showed that 59 percent of white Catholics are in favor, while 54 percent of Hispanic Catholics are opposed. White Protestants were capital punishment's strongest supporters among religious groups, with both evangelicals and mainline Protestants hovering at just over 60 percent support.

The logic of the official Catholic position has begun to make inroads among Catholics who oppose abortion and some of their Protestant allies, says Anthony Granado.

The key, he said, is that the church's position must be "presented as consistent with the church's teaching about the dignity of human life, rather than as a policy issue du jour, or as a cause of the left. If it is tied very clearly to the Gospel of Life, then pro-life Catholics are more willing to accept it."

Pro-life evangelicals, however, could still be a challenge for Granado.

The official position of the Southern Baptist Convention cites Genesis 9:6, which embraces the death penalty for murder because "Whoever sheds man’s blood, his blood will be shed by man, for God made man in His image.” The statement offers measured support for "the fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death,” but only when there is "clear and overwhelming evidence of guilt” and when it is applied "justly and as fairly as possible without undue delay, without reference to the race, class, or status of the guilty."

But Granado has hopes of persuading his pro-life allies, and says he has seen shifts in perspective among political conservatives who align with Catholics on abortion and family issues but bring their own instinctual and growing distrust of government to the table.

He hopes that over time, skepticism about government may become wedded to moral concerns about killing per se. "(Conservatives) are starting to think there may be something to (the Catholic position). They've seen exonerations, innocent people convicted, and they don't generally trust Caesar anyway."

Granado has worked with conservative activists who have become death penalty opponents. They remain outliers for now, but he hopes their skepticism could eventually bear fruit, making the bandwagon to abolition a more powerful force.
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