Brandon Garrett is the L. Neil Williams professor of law at Duke University School of Law. His most recent book is “End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice.”
On Wednesday, California Gov. Gavin Newsom announced a moratorium on the death penalty, saying he would grant clemency to all 737 people on death row in San Quentin. The closing of the nation’s largest death row (you can see photos of the death chamber at San Quentin being dismantled already) brings us much closer to the end of the death penalty in America.
In the past, governors who declared a moratorium on the death penalty may have taken a political risk, but Newsom’s decision very much reflects popular opinion about the death penalty — and harsh-on-crime approaches to criminal justice in general. Indeed, as the Death Penalty Information Center has pointed out, more than one-third of the nation’s death-row population is in states in which governors have said no executions will take place. California’s last execution was in 2006, but studies estimate California was spending $175 million a year on an unused punishment. So while his move was bold, in my view, Newsom essentially cut the cord on a punishment that was already at the end of its rope.
While it is technically still on the books in most states, the death penalty is actually imposed only in a few isolated counties. I have mapped county-level death sentencing data, and you can vividly see how rural counties essentially dropped off the map. In the mid-1990s, more than 300 people were sentenced to death each year in as many as 200 counties. By contrast, just 39 people were sentenced to death last year.
The causes of the decline in death sentencing run deep. One major factor has been improved defense lawyering. When jurors hear about mental health and other evidence about a defendant’s background, they are more likely to reject the death penalty. In 1984 in Virginia, Earl Washington Jr., who had the mental capacity of a 10-year-old, was convicted and sentenced to death after a cursory trial in which the defense neither brought forward expert witnesses on his intellectual disability nor offered a counterargument to the death sentence. Washington spent 17 years in prison, many of them on death row, before being exonerated by DNA evidence.
Now lawyers put on substantial evidence at trials that last for weeks. For many years, Virginia had the nation’s second-highest execution rate after Texas. Since 2011, there has not been a single death sentence imposed in the state.
Another reason is that the public is correctly concerned with the possibility of wrongful convictions, and not just in death penalty cases. Since 1989, more than 2,400 people have been exonerated, including at least 164 people who had been sentenced to death. We will never know how many innocent people have been executed, but we do know the evidence was flimsy in many death penalty cases in the 1980s and 1990s.
In the abstract, people may be closely divided about whether they support the death penalty, but their views become more nuanced when faced with specific questions about the death penalty and its alternatives. In a survey of nearly 500 Orange County, Calif., jurors, psychologists Nicholas Scurich, Daniel Krauss and I found that even the most steadfast death penalty supporters were less inclined to sentence someone to death when told that California had not executed anyone in a decade. One-third of the jurors in a fairly conservative county would not qualify for a capital jury because they said they opposed the death penalty on principle. We were surprised at how many jurors, conservative and liberal alike, were nullifiers: They said they would not convict a person of capital murder if they knew the death penalty might result.
The closing of California’s death row, America’s largest, has more than just symbolic importance for the rest of the country. During the same period in which we created our largest death rows, we also created the highest rate of mass incarceration in the world. In recent years, a truly bipartisan coalition is seeking to reduce incarceration for many of the same reasons the death penalty has fallen out of favor: the inhumanity of severe punishments, the prevalence of wrongful convictions, the enormous financial and societal costs of maintaining prisoners and the possibility for human rehabilitation and redemption.
Here again, California can point the way forward. Primarily in response to a court order, lawmakers in the state created a model for the country by reconsidering long sentences and pushing costs to the local level, reducing incarceration from a high of 163,000 state prisoners in 2006 to around 115,000 today. By following that lead and focusing on rehabilitation, defense lawyering, mental health screening and needs rather than revenge, the end of the death penalty can herald a new beginning for criminal justice in America.