Reevaluating the Death Penalty

A look at the future of capital punishment in America
Albert Greenwood Brown, who was convicted of the rape and murder of 15-year-old Susan Louise Jordan in 1982, was scheduled for execution in California at the end of September. But a last-minute court ruling and an unexpected expiration of sodium thiopental, the drug used for lethal injection, indefinitely delayed all executions in the Golden State. With this temporary moratorium on capital punishment, California became the latest state to reevaluate its use of the death penalty. But while many Americans and several state legislatures have expressed increased skepticism of capital punishment in recent years, it remains an entrenched and popular policy in many regions of the country. Nothing short of a sweeping decision from the Supreme Court will bring about its abolition in the near future.
Public Opinion and State Moratoria
According to an October 2010 Gallup poll, 64 percent of Americans support the death penalty. While this may initially seem like an overwhelming majority, it is important to consider this statistic in context. First, Americans’ support of the death penalty has been trending downward since a peak in 1994, when 80 percent of respondents supported it. The manner in which the question is asked is also important. According to the Death Penalty Information Center, Americans are about evenly split between life in prison without possibility of parole and the death penalty when those two options are presented to them.
Declining public support for the death penalty over the last decade may be related to the proliferation of state moratoria on capital punishment in recent years. In January 2006, the New Jersey legislature voted to abolish the death penalty. Several states soon followed suit, including Missouri in 2006, Nebraska in 2008, and Kentucky in 2009. In North Carolina, a de facto moratorium has been imposed after a decision passed by the state medical board disallowed physicians from participating in executions.

Ready for Abolition?
While the death penalty has become less prevalent in the United States as a whole, there are still regions of the country where it remains a very popular and often utilized policy. Ruth Friedman, director of the Federal Capital Habeas Project, told the HPR that ambitious politicians often exploit the issue of capital punishment for political gain. . “The death penalty is a political issue wielded by people who want to further their political aims,” Friedman said. Candidates for district attorney, for instance, often advocate greater use of the death penalty in order to appear tough on crime—especially in the South, which according to the Death Penalty Information Center accounts for a majority of the national death row population. As long as people associate the death penalty with law and order, there will be politicians who capitalize on the policy for political gain, which makes nationwide abolition unlikely.
An outright ban of the death penalty, then, would most likely be accomplished through a sweeping decision from the Supreme Court. But given the Court’s current conservative slant, such a decision is unlikely to come soon. Still, Richard Dieter, executive director of the Death Penalty Information Center, told the HPR that he believes “America is in the latter stages of the demise of the death penalty.” According to Dieter, “Exoneration through DNA testing has shaken the confidence of the American public” in the death penalty. While advances in forensic technology have made it easier to identify guilty culprits, they have also made it easier to identify errors in the administration of justice. As the public increasingly realizes the non-trivial possibility that it has executed or will execute an individual who is not guilty, Dieter believes it will become more skeptical of the death penalty—and that this change in opinion could eventually provide the impetus for the Supreme Court to rule capital punishment unconstitutional.
Until that time, if it ever arrives, the death penalty will continue to be decided on the state level. Increasing public support of alternative policies will make the death penalty less prevalent in some areas of the country, while it will remain popular in other regions. The country’s growing skepticism of the death penalty may be an indicator that the Supreme Court will one day decide to abolish capital punishment, but such a decision is most likely many years away.
Brian Burton ’13 and Michael Lai ’14 are Staff Writers.
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