Democracy Dies in Darkness

The Watch | Opinion

The slow decline of the death penalty

By Radley Balko

August 16, 2016 at 11:28 AM

In the New Yorker, Jeffrey Toobin profiles the heroic Bryan Stevenson.

In 1989, a twenty-nine-year-old African-American civil-rights lawyer named Bryan Stevenson moved to Montgomery, Alabama, and founded an organization that became the Equal Justice Initiative. It guarantees legal representation to every inmate on the state's death row. Over the decades, it has handled hundreds of capital cases, and has spared a hundred and twenty-five offenders from execution. In recent years, Stevenson has also argued the appeals of prisoners around the country who were convicted of various crimes as juveniles and given long sentences or life in prison . . .

Stevenson and his colleagues have managed to slow, but not stop, the death-penalty machinery in Alabama—an enormous challenge in view of the state's conservative and racially polarized politics. Alabama has an elected judiciary, and candidates compete to be seen as the toughest on crime. It's also the only death-penalty state in which judges routinely overrule juries that vote against imposing death sentences. (In their campaigns, judges boast about the number of death sentences they've imposed.) Alabama's population is about twenty-seven-per-cent African-American. The nineteen appellate judges who review death sentences, including all the justices on the state Supreme Court, are white and Republican. Forty-one of the state's forty-two elected district attorneys are white, and most are Republican. The state imposes death sentences at the highest rate in the nation, but the Equal Justice Initiative has limited the number of executions to twenty-two in the past decade, and there has been only one in the past three years. "It's just intensive case-by-case litigation," Stevenson told me. "We've gone more aggressively than anyone in the country on racial bias against African-Americans in jury selection. We have extensive litigation on the lethal-injection protocols. We identify inadmissible evidence. We push hard on every issue."

In portions of the profile, Stevenson seems pessimistic, citing the recent spate of police shootings and white hostility to the civil rights movement. The profile also focuses more on Stevenson's admirable efforts to build a memorial to American lynchings than on his litigation.

But given Stevenson's lifelong work on the death penalty, it's worth taking the opportunity to point out just how rare executions are these days. At the national level, we're seeing a significant slowdown. Certainly, there are still hot spots where the death penalty is flourishing, and in those areas it still retains a familiar litany of problems: Those executed aren't the "worst of the worst." Rather, the death penalty is arbitrarily applied. It's racially discriminatory, with respect to the race of both the perpetrator and the victim. And the people executed aren't always the most culpable. Often, it's used as extra punishment for those who protest their innocence, or as leverage for a killer to give up accomplices. In the few states that still execute, the entire process is also getting more secretive and less accountable.

But there's good reason to think that the efforts in those states are capital punishment's death rattle. In a large and growing part of the country, the death penalty is becoming a relic of the past. Delaware's Supreme Court just ruled capital punishment unconstitutional. Nebraska's legislature repealed the death penalty, even overriding a veto in the process (though it may be resurrected with a ballot measure this fall). As NPR reported last December:

The death penalty is in decline no matter the measure, a new study released by the Death Penalty Information Center has found.

The report found that 28 people were executed this year, the lowest since 1991. The number of death sentences dropped by 33 percent.

Only six states executed convicts during the year, and Texas, Missouri and Georgia accounted for 86 percent of the executions.

There have been 15 executions so far this year, and just two since April. Only five states have carried out executions. Georgia and Texas alone account for 12 of the 15 executions.

According to Gallup polling, while three in five Americans (61 percent) still support the death penalty, that figure also marks a 40-year low. Pew polling also shows a 40-year low, with support even lower, at 56 percent. Among those ages 18 to 29, it's at 51 percent.

Stevenson isn't the sort to take a bow, but the tireless work from groups such as EJI, the Innocence Project and the Death Penalty Information Center are a big reason for all of this — both in changing public opinion and in slowing down the machinery of capital punishment. You could argue that the progress has been too slow. But there's no question that there has been progress.


Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."

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