PLW: Death-Penalty Support Waning, Not Disappearing

Matthew T. Mangino
The Pennsylvania Law Weekly
July 8, 2014
There was a recent lull in executions in this country. For 49 days beginning on April 29 there was not a single execution nationwide. Then on June 17 and June 18 there were executions in Florida, Georgia and Missouri. The last execution prior to June 17 was in Oklahoma, and it did not go well.
Clayton Lockett died after his April 29 execution was halted when prison officials noticed he was writhing on the gurney, gritting his teeth and attempting to lift his head.
Oklahoma was using a novel three-drug execution protocol. Prison officials believed the lethal injection drugs were not being administered properly. The doctor inside the death chamber reported an IV became dislodged and the lethal drugs were not flowing through Lockett's veins.
The state's prison director halted the execution. Lockett died about 43 minutes later from what has been described as a heart attack, according to news reports. A number of executions were subsequently postponed in the wake of Lockett's "failed" execution.
On June 18, the scheduled execution of Lewis Jordan in Pennsylvania was postponed. Jordan was convicted in 2009 of shooting Philadelphia police officer Chuck Cassidy in the head during the robbery of a Dunkin' Donuts.
The reason for the postponement was not renewed concern over lethal injection or the botched execution of Lockett. The reason was that, although Pennsylvania has had the death penalty for more than 35 years and more than 200 men and women are on death row, Pennsylvania does not carry out involuntary executions.
Since 1999, Pennsylvania governors have signed approximately 205 execution warrants without a single execution, according to information from The Philadelphia Inquirer. There have been three executions in Pennsylvania since 1978. All three—Keith Zettlemoyer and Leon Moser in 1995; and Gary Heidnik in 1999—waived their appeal rights and volunteered to be executed.
Three-hundred forty-eight men and two women were executed in the state's electric chair between 1915 and April 2, 1962, when Elmo Smith was executed for the rape and murder of a Montgomery County girl. Smith was also the last person involuntarily executed in Pennsylvania.
Why the near non-existence of executions in Pennsylvania?
Pennsylvania Supreme Court Chief Justice Ronald D. Castille vehemently complained about delay tactics and frivolous filings used by federal defenders in capital murder cases, according to a York Daily Record report from 2012.
In a written opinion in Commonwealth v. Spotz, No. 576 (April 29, 2011), Castille said, "When the families of murder victims, and other concerned citizens, ask why there is no effective death penalty in Pennsylvania, the dirty secret answer is: ask the federal court."
Castille characterized the defender's conduct as "the zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania."
The federal court and federal defenders might be part of the problem in Pennsylvania, but around the country the problem is simple: Support for the death penalty appears to be waning. In the last five years, six states have abolished the death penalty. In Washington, Oregon and Colorado, governors have unilaterally imposed moratoriums on executions.
Ohio, the most prolific state in terms of executions over the last five years, excluding Texas, just had a two-and-a-half-month execution moratorium imposed by a federal judge.
The most recent Gallup poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That's not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty are not a substantial majority. But, unequivocally, the death penalty is trending downward.
Yet, how do we explain the efforts in places like Utah, Missouri and Oklahoma to bring back the electric chair or firing squad. In researching my book, "The Executioner's Toll, 2010"—examining every execution in America in a single year—I was struck by the palpable anguish of the families of victims, even years after their loved ones were violently taken from them.
The mother of Clarence Threat, whose murderer, Darick Walker, was executed May 20, 2010, said she did not support the death penalty, but she did not wish to stop Walker's execution. Her response, though not vengeful, starts in the direction of the most common response from victims' families: Lethal injection is too easy. In 2010, not only did some families want retribution, they wanted revenge—a painful sort of revenge.
Speaking after his daughter's killer was executed, an angry father put it this way, "I wish my daughter could have died the way he died today. Wasn't no pain."
A mother after watching an execution: "I hope he burns 70 times in Hell."
"He should have been hung outside the courthouse," said a father unimpressed with death by lethal injection.
"I was hoping that he would have a prayer, a sign that he had been saved," said a distraught mother of a murder victim. "I think the way he went ..." She paused, breaking into tears. "It was too easy for him."
"It was like laying down and going to sleep," said the relative of a murder victim. "My nephew suffered."
Lethal injection wasn't sufficient for a member of another family, "It was too humane. I'd rather have seen him in an electric chair."
Public opinion polls have, in the past, supported the proposition that the more one knows about a specific murder or murderer, the more likely that person will support the death penalty. Saddam Hussein and Timothy McVeigh are examples that even those who otherwise oppose the death penalty can support an execution.
In 2001, when 67 percent of people said they supported the death penalty, 81 percent supported the execution of McVeigh. In 2006, when 65 percent of people said they supported the death penalty, 82 percent supported the execution of Hussein.
When murder or the death penalty touches an individual, the theoretical, moral and legal aspects of capital punishment disappear. It is personal. Victims' families are not thinking about deterrence—they're thinking about vengeance. Support for the death penalty may be on a downward slope, but it is far from being rejected. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was recently released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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