The Death Penalty Détente

As recently as a decade ago, one of the most hot button topics in the American political discourse was the application of the ultimate criminal sentence – the death penalty.  While 29 states and the federal government authorize the imposition of death sentences, capital punishment – while still a disputed issue in our political system – commands a fraction of the attention it did just a few years ago.

The reasons for a decline in the public’s focus upon the death penalty may well be practical – executions in the United States are radically down.  Following the Supreme Court’s reinstatement of capital punishment in 1976 (which occurred after a brief Court-mandated hiatus in the practice), execution numbers gradually rose, peaking at 98 executions in 1999.  Since that time, the number of executions has dipped dramatically, being more than quartered to an average of less than 23 executions yearly from 2016 to 2018.  Remarkably, in the first four months of 2019, the US has seen only 4 total executions, the fourth of which took place week in Texas when one of the perpetrators of the James Byrd, Jr. lynching was put to death.*

The execution of one Byrd’s racist torturers set against the decline in the application of the death penalty writ large provides a good backdrop as to how the détente in the death penalty debate has come to occur.  Byrd’s death – a result of his being tied to a moving truck and drug to death over several miles – is one of the ugliest, most virulent crimes committed in recent American history.  When discussing whether the United States should have the death penalty (a punishment that receives the support of 54% of Americans and the opposition of 39% per 2018 Pew polling), it is not easy to make a compelling case that the execution of a monster who would torture another human solely because of his race is an inappropriate or unfair punishment.  Put simply, the majority of Americans appear to intuitively understand that certain crimes – such as the Byrd slaying – justify the ultimate punishment.  Moreover, other offenders that demonstrate a repeated, wanton disregard for human life – such as serial killers, mass murderers, and prison inmates who slay guards – reveal their continued existence as a threat to society and provide a public safety rationale for the execution of those persons who are simply oriented toward the taking of other, innocent lives.  Bottom line, the death penalty constitutes justice for certain crimes and certain criminals.

However, the decline in the number of executions reveals a countervailing influence in the execution debate.  There is a clear discomfort in the “routine” application of capital punishment, even where death sentences have been imposed in significant numbers.  For example, California (whose new governor has imposed a moratorium on executions) has 737 offenders on death row, but has only executed 13 people since 1976 and none since 2006.  Pennsylvania, with a death row of 139, has not executed anyone since 1999.  And while there are no cases of the actual innocence of an executed person having been established since the reinstitution of the death penalty in 1976,** the plethora of innocence findings for previously-convicted murderers (some freed from death row) in recent years should give the state pause in seeking and applying the death penalty as a routine part of criminal sentencing and punishment.  Distinct from the potential wrongful application of the death penalty, it may also be difficult for many Americans to support the ultimate sentence for more common sorts of murders (e.g., a drug deal or an armed robbery ending in a homicide) when the perpetrator can be punished with a life sentence that doesn’t include the possibility of parole.

From this author’s perspective, the détente on death gets it right.  Certain crimes and certain criminals engage in acts so despicable or so threatening to the safety of the general public that the death penalty is not merely the right sentence, it is a just punishment.  However, these are exceedingly rare cases, and execution – a punishment from which there is no recourse should an error be discovered after imposition – should be utilized in only the most extreme cases presented to our society’s criminal justice system.

*Not only is the application of the death penalty down, states are much less likely to seek and to obtain death sentences in criminal trials.

**The most hotly-contested case involving the execution of an allegedly-innocent person is that of Cameron Todd Willingham, a Texas man alleged to have set a fire in his home that killed his three children.  Post-trial expert testimony from Willingham’s counsel categorically disputed the state’s expert testimony that the fire was intentional and instead contended that the fire at issue was accidental.  (In the context of this article, Willingham’s case is an excellent example of how the judicious application of capital punishment avoids controversial results and undermines public confidence in the rare usage of this punishment.)