The Death Penalty is Alive and Kicking, if Only Barely

On June 20, an American milestone was reached, as Marion Wilson, Jr. became the 1,500th person executed since capital punishment was re-instated in 1976. Evidence suggests that the US’ love affair with the death penalty is beginning to wane. While the love affair may be dying, the death penalty is still alive and kicking.

Even as murder rates drop in the USA, states like Tennessee have seen a resurgence in the death penalty, especially in states like Tennessee since they plugged their electric chair back in. The state had not executed anyone in ten years, but once the chair was fired up, they were up and running. Tennessee executed four men in a little over nine months. One inmate, Edmund Zigorski, even selected the electric chair over lethal injection.

The history of the death penalty is as old as civilization itself. Most historical records indicate that formal execution was a part of tribal justice systems. When corporeal punishment, shunning and banishment weren’t enough, the death penalty was always an option. Over the years, the practice has moved from things like the breaking wheel and brazen bull to the guillotine and beheading to lethal injection and the electric chair in America.

In some countries, like Saudi Arabia and Sudan, stoning is still a form of capital punishment.

In the US, like most countries that exercise capital punishment, it’s reserved for its most heinous crimes, such as murder, treason, terrorism, war crimes and espionage. However, historically, one could have been executed for anything from adultery and military desertion to buggery – especially in Britain where it was written into law in 1533 and remained a capital offense until 1861.

Of the countries that retain the death penalty, Amnesty International reports that only 23 of those exercised it in 2016. While China and North Korea don’t publish such data, it’s thought that they are the world leaders in capital punishment. China, specifically, is suspected of executing over 1,000 of their citizens. Iran follows with 567 and then the numbers drop with Saudi Arabia ranking third with 167.

According to Amnesty International, the United States falls into seventh place with 40 executions in 2017.

Supporters in of the death penalty in the US like to talk about how it’s a deterrent to crime. Outside looking in, one might think that it would be. Yet, the data show something else entirely.

It’s not a deterrent.

The Death Penalty Information Center has done research on this and found conclusively that capital punishment does not disincentivise crime. The number of murders per 100,000 people in the United States has almost been cut in half since 1990 on its own. Using statistics published by the FBI, the DPIC didn’t simply compare murder rate to executions. They took it further to get a more accurate picture and noted whether the state had the death penalty for the time period in question.

What the DPIC found was that, since 1990, the murder rate for states that have the death penalty, the murder rate is 25% higher than those that do not, as of 2016.

Where you live in the United States also plays a role. The south accounts for over 80% of executions while the northeast less than 1%. In fact two states, Texas and Oklahoma, can boast 31% of the executions since 1976.

Former President George W. Bush, as Governor of Texas, oversaw the execution of 154 people during his five year run from 1995-2000. Bush is only surpassed by his predecessor, Rick Perry, who oversaw 234 inmates executed. It should be noted that Bush served five years as Governor and Perry, fifteen.

Now, 32 states have the death penalty on the books as a form of punishment. However, it is the counties within those states that drive the death sentence. In 85% of those counties, there have been no executions since 1976. In what’s referred to as the “2% rule”, it’s a tiny percentage of counties within those states that are responsible for the majority of executions. If you guessed that percentage to be 2%, you’re right; it’s 2% of those counties that are responsible for 52% of all executions that have taken place in America since 1976. It’s also 2% that have produced 56% of death row inmates.

While gender is seldom an issue with the death penalty because capital punishment is typically meted out to men: 16 women have been executed since 1984. With that said, it won’t come as a shock that race plays a role in capital cases. Nationally, the race of defendants executed typically vacillates – some years being split down the middle between white and black men and others leaning heavy one way or the other.

However, the race of murder victims resulting in an execution is not split. It’s overwhelmingly white. It’s just over 75%. Considering that only 50% of murder victims are white, that seems wildly disproportionate.

According to a University of Washington study in 2014, in that state, juries are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case. A similar study by the Louisiana Law Review found that the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black.

In fact, a report by the American Bar Association found that in 96% of states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.

On June 21, the Supreme Court of the United States overturned the conviction of Curtis Flowers. As detailed in the second season of the podcast In the Dark, Flowers had been tried six times in Mississippi by District Attorney Doug Evans who sought to execute Flowers for four murders that took place in Winona, Mississippi in 1996. Each time, Evans tried him and won. Each time, Flowers and his team would appeal and win.

Finally, after the sixth trial, the case made it to the Supreme Court who ruled in a resounding rebuke of Doug Evans, by a vote of 7-2. They ruled that Evans, the white district attorney, had violated Curtis’, a black man, constitutional rights by intentionally removing African-Americans from the jury at the sixth trial in 2010.

As science and technology has caught up with the law, it’s raised doubts about the certainty of guilt that both prosecutors and the public feel when they shout “Dead Man Walkin’!”

Cameron Todd Willingham was executed in Texas in 2004 for setting a fire that killed his three young daughters. While he had always claimed his innocence, and the arson investigation used to convict him was questioned by leading experts before, Willingham was executed. Since 2004, further evidence in the case has led to the inescapable conclusion that Willingham did not set the fire for which he was executed.

In 2005, Georgia executed Brian Keith Terrell. Physical evidence from the crime scene leaves substantial questions as to Terrell’s guilt: footprints found near the victim’s body were smaller than Terrell’s feet, and none of the 13 fingerprints found by investigators matched his fingerprints. Terrell was convicted primarily on the testimony of his cousin, Jermaine Johnson, who spent a year in jail facing the threat of the death penalty before he made a deal with prosecutors to testify against Terrell in exchange for a five-year sentence.

Terrell’s last words? “Didn’t do it.”

Then there is the information left out of the trial that could possibly persuade a jury from execution. In 2001, North Carolina executed Ronald Wayne Frye. No one denied either his crime or its heinous nature, but as his execution date approached, information about his upbringing came to light.

If Frye’s story had simply been investigated by his attorneys, they would’ve found resounding evidence of neglect and abuse. The evidence the jury never got to hear was that Frye’s mother had given him and his brother away to a pair of strangers she met at a gas station when Frye was a young boy. The couple beat Frye and his brother with a bullwhip and forced the boys to beat each other as well.

This revelation led two jurors to announce that had they had they been privy to that information, they would not have voted for the death penalty. “A background of neglect and abuse would have changed my decision and my vote,” one juror said weeks before Frye’s execution.

Death penalty supporters also like to say that it actually saves money. Well, that’s also misleading, at best. According to research, enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole.

Not surprisingly, the majority of these costs occur at the trial level. A 2014 study by the Kansas Judicial Council found that defense costs for death penalty trials in Kansas averaged about $400,000 per case. Conversely, the cost was just $100,000 per case when the death penalty was not sought.

Texas has had 561 executions since 1976, by far the most in the United States. In that state alone, a death penalty case costs an average of $2.3 million. That’s about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.

It’s also unclear who still supports the death penalty here in the United States. It’s not the citizens. Less than half of Americans (49%) believe the death penalty is fairly applied in the United States, according to the 2018 annual Gallup crime poll of U.S. adults. A 2010 poll by Lake Research Partners found that a clear majority of voters (61%) would choose any other punishment than the death penalty for murder.

Not all of law enforcement supports it. A poll commissioned by Death Penalty Information Center found police chiefs ranked the death penalty last among ways to reduce violent crime. They also considered it the least efficient use of taxpayers’ money.

Even the bedrock of supporters of the death penalty, conservative Republicans, are rising up against it. In 2017, a report was issued that documents the Republicans heightened interest in repealing the death penalty. Some, like New Orleans Times-Picayune columnist Tim Morris, have gone so far as to call the death penalty a wasteful “big government” policy that is “inept, biased, and corrupt.” The data suggests he’s not entirely wrong. 

While the trend over the past ten years has seen capital punishment decreasing, there has been a slight increase since 2016. Perhaps it’s just coincidence that the upswing coincides with the election of a president who is a very vocal supporter of capital punishment. As America still ranks seventh in its use of the death penalty, that keeps President Trump inextricably, and ironically, linked with two of his biggest foes, China and Iran.

There are currently 2,271 people on death row in the United States. All of the data indicates it’s not a deterrent, it’s morally and ethically dubious, at best, it’s financially unsound and lacks support of the population and law enforcement. While it is trending downwards, it begs the question why it’s still taking place at all. But, like many topics in the USA today, discussion around capital punishment is divisive and, as such, state sanctioned execution remains active.

America has executed ten inmates to date this year, and is scheduled to execute 14 more by the end of 2019.