The Washington PostDemocracy Dies in Darkness

Americans are turning against the death penalty. Are politicians far behind?

This Feb. 29, 2000, photo shows the “death chamber” at the Texas Department of Criminal Justice Huntsville Unit in Huntsville. (Paul Buck/AFP/Getty Images)

As many people know, most recently from the presidential primary debates, Americans are backing away from harsh criminal justice policies. In the debates, both Democrats and Republicans have consistently and uniformly  suggested that mass incarceration has gone too far.

That includes the death penalty. Politicians may soon realize that the public has soured on capital punishment, as our polling data show, just as it has on mass incarceration more generally. In fact, some already have. Recently Jeb Bush said he was “conflicted” about the death penalty. Democratic candidates have criticized Hillary Rodham Clinton for her tepid endorsement.

[Most death penalty sentences are overturned. Here’s why that matters.]

Public opinion changed on mass incarceration. Politicians followed. 

From the 1970s until the end of the 20th century, mass incarceration and the war on drugs were surefire ways for political leaders to show their mettle. But slowly, beginning around 1995, the public has moved against these harsh and costly policies. So there’s no surprise that politicians of both parties now consistently say the United States needs fewer people in prison.

Peter Enns recently showed the close links between aggregate public opinion on crime and the political response. Using a method and software developed by UNC political science professor Jim Stimson, he constructed a massive database of 33 distinct questions about crime posed over the period from 1953 to 2012. In all, he used 381 national surveys to generate a comprehensive measure of the public’s mood on crime.  That nation’s prisons filled up when the public mood was punitive, and the prison population declined when the mood became less harsh.

[Republicans and Democrats support sentencing reform, but this stands in their way.]

In a representative democracy, we expect the leaders to follow opinion, or even anticipate it. This is essentially what Enns showed regarding crime.

Public opinion is changing on the death penalty. So what’s up with politicians?

The death penalty may show even more strongly how tightly public opinion and official response are linked. During the 1970s through the mid-1990s, as with crime in general, we saw a national movement toward increased support for, and increased use of, capital punishment.

Here’s the background. In 1972, the Supreme Court invalidated capital punishment on the grounds that it was applied capriciously, with race potentially playing too much of a factor and the heinousness of the crime not enough.  The political response was swift and powerful, as states quickly adjusted their laws to reinstate the death penalty in conformance with the new constitutional safeguards. For a generation, increasing numbers of people were sent to death row, with executions rising as well.  The court sanctioned the new laws in 1976 and the first execution of the “modern era” took place in 1977; the race was on.

[This politicial scientist spent a year in prison. Here’s what he learned.]

While the attitudes toward mass incarceration and the death penalty were similar, the actual results were quite different. Millions of prisoners were caught up in mass incarceration. But the death penalty has never been more than symbolic. Even in the peak year of 1999, the U.S. executed only 98 inmates, a very small number compared to the more than 15,000 homicides that year.

But that symbolism was critical for politicians. In a 1988 debate, Michael Dukakis coolly said that even if his wife were raped and murdered he wouldn’t want the perpetrator killed — with a clinical response that was widely seen as detrimental to his presidential bid. When Bill Clinton ran for office in 1992 he made sure to trumpet his strong support for the death penalty as governor of Arkansas, even suspending his presidential campaign to return to Little Rock for an execution.

Technical background: How we constructed an index of public opinion on the death penalty from 1976 to now

We have constructed a comprehensive index of public opinion on the death penalty just as Enns did for criminal justice punitiveness. Our index runs from the beginning of the modern era of the death penalty in 1976 through this year. We identified 488 national surveys with 66 distinct questions about various aspects of the death penalty (in a 2008 book, Baumgartner and colleagues used 292 surveys from 1937 to 2006 to develop a similar index). These questions were asked as many as 25 times (for the Gallup Murder question), but all were asked at least twice.

Since our assessment is based on 488 national surveys, the sampling variation is reduced to a minimum. The figure below shows how death penalty opinion tracks closely with Enns’s measure of crime opinion in general. (Both series are set to have a value of zero in 1976, the beginning of the modern period of the death penalty.)

As you can see above, what Enns argued about crime in general may well be true about the death penalty. The number of death sentences tracks closely with public opinion toward that form of punishment, just as incarceration numbers tracked with opinion on crime in Enns’s study.

As the public has increasingly spurned the death penalty, death sentences have also declined–from 315 in 1996 to just 73 in 2014, and are projected to be lower still in 2015.

No matter how we look at it, for the past 20 years, the death penalty has been dying.

[Guess who used to be okay with the death penalty?]

The figure below compares opinion, death sentences, executions, the number of states carrying out an execution, and the number of counties carrying out an execution.

Are American standards of decency shifting? You bet. Death sentences have declined by 70 percent; executions by more than 60 percent; and fewer and fewer jurisdictions are using capital punishment at all. A recent Reuters report noted that we are on track in 2015 to have the lowest numbers of death sentences and executions in decades. As of Nov. 25, with one more execution scheduled in Georgia before the end of the year, 2015 will see just 27 or 28 executions, down from 35 in 2014.

Consider Texas alone, often seen as a leader in capital punishment. In 1999, the Lone Star State had 48 death sentences. Since then, it has averaged fewer than ten a year. So far in 2015, Texas juries have sentenced only three individuals to death. Even Houston, responsible for more executions than any state other than Texas itself, has given out no death sentences in 2015.

Whether we look at national trends or particular hot spots, the answer is the same. The death penalty is still regularly used in few places in the United States — because just as with mass incarceration, the public no longer favors it.

[The death penalty is about to go on trial in California. It might lose.]

By now, for every nine people who have been executed, one person has been exonerated. As a result, fewer and fewer Americans are confident that the government can be counted on. And where public opinion goes, political leaders eventually catch up.

Frank R. Baumgartner is the Richard J. Richardson Distinguished Professor of Political Science at UNC-Chapel Hill. Emily Williams and Kaneesha Johnson are students in his class this semester and contributed substantially to this research. Click here to see a spreadsheet with the data reported in this article, and here to see more detail about how we constructed our index of public opinion.