Saturday, October 22, 2016

GateHouse: The end of the inevitability of the death penalty

Matthew T. Mangino
GateHouse Media
October 21, 2016
Recently, Georgia executed Gregory Lawler. When he was pronounced dead at 11:49 p.m. on Oct. 19, he was the 17th person executed in the United States this year. Texas and Georgia are responsible for 14 of those executions.
By year’s end, 2016 will have the fewest number of executions in a quarter century. Public support for the death penalty is at its lowest point since the U.S. Supreme Court suspended capital punishment in 1972. A Pew Research poll published last month revealed that only 49 percent of Americans now favor execution as an appropriate form of punishment.
The death penalty is largely symbolic. Most states that have the death penalty don’t execute those condemned. A handful of states carry out executions and a very small minority do so on a regular basis.
Lincoln Caplan recently wrote about the decline of the death penalty in Harvard Magazine. Citing the various works of professors Jordan and Carol Steiker, including the siblings’ recent book “Courting Death: The Supreme Court and Capital Punishment,” Caplan explains the difference between symbolic states and executing states.
Pennsylvania is a symbolic state: It has executed only three people since 1976, and each was a volunteer — they chose not to continue their appeals. On the other hand, Texas is an executing state. Officials there have executed 537 people since 1976.
But, ironically, the rate of death-sentencing in Philadelphia, Pennsylvania, is higher than in Harris County, Texas, which has had more defendants executed than any other county in the country.
Caplan further writes that 8,124 people had been sentenced to death between 1977 and 2013. Only 17 percent of those condemned were executed. Six percent died by causes other than execution and 40 percent received other dispositions, including reversals of their convictions. The rest — 37 percent — were in prison. In California in 2014, a federal judge found that, of the 748 inmates then on death row, more than 40 percent had been there for more than 20 years.
In fact, Supreme Court Justice Stephen G. Breyer wrote a 2015 dissent — joined by Justice Ruth Bader Ginsburg — in Glossip v. Gross that it was “highly likely that the death penalty violates the 
Eighth Amendment,” the constitutional ban against cruel and unusual punishment.
The stage has been set for a dramatic confrontation with state-sponsored death. Capital punishment will be tested on Election Day in three states. The outcomes of those ballot measures will no doubt have an impact on the future of the death penalty.
In Nebraska, the issue pits the Republican governor against a bipartisan majority in the legislature. A coalition of lawmakers last year repealed the death penalty with the rallying cry of cost and the claim that the death penalty is not a deterrent. The governor is now strongly supporting a ballot measure where voters will be asked to reinstate capital punishment.
In Oklahoma, ardent supporters of the death penalty hope to protect it through a ballot initiative. The state has a long history of capital punishment and not all of it positive. The state has had several highly publicized botched executions and Justice Breyer’s stunning dissent came in an Oklahoma case.
Oklahoma has not carried out an execution in 2016, and last fall 52 percent of Oklahomans said in a News 9 poll that they support life-without-parole as an alternative to execution. State Ballot Question 776 appears to be the effort of legislators to prevent what happened in Nebraska from happening in Oklahoma.
Finally, California voters will face two competing initiatives on Election Day. Proponents of Proposition 62 say the state has spent $5 billion maintaining the legal and physical apparatus of capital punishment while executing only 13 people in 38 years.
Advocates for Proposition 66 want to “mend, not end” capital punishment by changing appellate rules to expedite capital cases, reduce the costs of the death penalty and the size of death row.
To paraphrase a famous English statesman, this may not be the end of the death penalty — may be the beginning of the end — but surely the end of the inevitability of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him and follow him on Twitter at @MatthewTMangino.
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