Austin Sarat writes in Slate:
Now more than ever there are two distinct worlds of capital punishment in the United States. It has long been the case that the death penalty has flourished in some regions of the country and in some states more than in others. And the release of the Death Penalty Information Center’s (DPIC) annual report for 2021 makes clear that the distance between those two divergent paths rapidly increased last year.
“The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions,” The DPIC report noted. Capital punishment increasingly is used in just a few idiosyncratic locales and offers another fault line in this country’s fragmented political, legal, and cultural life.
As in many other areas of American life, supporters and opponents of the death penalty regard each other as enemies, not just as opponents. They see the world in fundamentally different ways and think of the political struggle over the death penalty as a struggle over fundamental values and different ways of life.
As Emory University historian Daniel LaChance explains, “These days, support for capital punishment is concentrated among whites, Protestants, and Republicans—key demographic constituencies of the conservative side of the late twentieth century culture wars…. Support for the death penalty is not only a tool for controlling crime, but also an expression of allegiance to values—personal responsibility, the sacredness of innocent life, and the firmness of a nation’s convictions—that they feel have degraded in the United States since the 1960s.”
Progressives, in contrast, see America’s continuing use of capital punishment as unjust, barbaric, and a sign of moral backwardness.
As a result, we can expect death penalty politics to grow more, not less, bitter and more intense, as the two worlds of capital punishment come to terms with new realities.
What are these new realities?
In one of the worlds of capital punishment, abolitionists have made great progress and the death penalty is in retreat.
This year, Virginia became the eleventh state to have abolished capital punishment since 2007 and the 23rd state overall not to have the death penalty. It became the first southern state to abolish that punishment in recent memory. In Oregon, to cite another example of progress against the death penalty noted by the DPIC, the supreme court effectively ended that state’s use of capital punishment last October.
At the federal level, the Biden Justice Department announced a moratorium on federal executions.
During 2021, the United States imposed
the fewest death sentences and carried out the lowest number of executions in
decades. Eighteen people were sentenced to death, “tying 2020’s number for
the fewest in the modern era of the death penalty, dating back to the Supreme
Court ruling in Furman v. Georgia that struck down all existing U.S.
death-penalty statutes in 1972. The eleven executions carried out during the
year were the fewest since 1988.”
But in the other world of capital punishment, things look quite different.
Donald Trump’s gruesome execution spree exemplified the desire to take the lives of those convicted of horrible crimes that still exists on the other side of the death penalty divide. Trump himself captured the flavor of the cultural chasm when he said during his 2016 campaign, “Death penalty all the way. I’ve always supported the death penalty. I don’t even understand people that don’t.”
While many political conservatives now oppose capital punishment, then Attorney General William Barr observed after the first of the federal executions last year that Americans “have made the considered choice to permit capital punishment for the most egregious federal crimes, and justice was done today.”
Looking at only the states which carried executions last year, the names are quite familiar to any student of the death penalty, with Texas and Oklahoma leading the way, followed by Alabama, Mississippi and Missouri.
“All but one prisoner executed this year had serious impairments, including brain injury or damage, mental illness and intellectual disabilities, or had histories of gruesome childhood neglect and abuse,”according to a report in The Guardian,
That report quotes Ngozi Ndulue, DPIC’s deputy director, as saying that the states which continue to use the death penalty do not use it for “the worst of the worst, but the most vulnerable of the vulnerable.”
In this other world of capital punishment desperate measures have been required to keep the machinery of death running.
States have ratcheted up the regime of secrecy surrounding the death penalty. They refuse to disclose the precise drugs used when they put someone to death by lethal injection or to identify the suppliers of those drugs. Such refusal makes it very hard for journalists to inform the public about the killings that are carried out in its name or for condemned inmates to vindicate their rights under the Eighth Amendment.
Because death penalty states have had trouble obtaining the drugs that were long part of the standard lethal injection protocol, they have turned to new, often untested drugs and drug protocols. Or they have revived previously discredited methods of execution, as South Carolina did in May of this year when it brought back the electric chair and the firing squad to its inventory of execution methods.
In the world where the death penalty still lives, states have compiled a troubling record of problems and mishaps in their execution chambers, like the horror that unfolded last October when Oklahoma severely botched the execution of John Marion Grant.
As the DPIC’s Robert Dunham notes,
“The handful of states that continue to push for capital punishment are
outliers that often disregard due process, botch executions, and dwell in the
shadows of long histories of racism and a biased criminal legal system.”
And, as a strange case from Alabama reveals, death penalty states go deep into their bag of tricks to keep governmental officials in line. In that case, Jefferson County Judge Tracie Todd was suspended without pay for 90 days for, among other things, deciding that state’s death penalty system, which still allows judges to override jury decisions and impose death sentences was unconstitutional.
Such punishments are almost unheard of except when judges are guilty of the most serious derelictions of duty. But in Alabama it seems that a judge who points out the irrationality, cruelty, and injustice that is pervasive in its death penalty system has committed just such a dereliction.
This year ends with the two worlds of capital punishment intact, but with the sense that the United States is on the way toward abolition. Yet the road forward will not be easy nor is the result assured.
What the political philosopher Michael Walzer once said about all journeys toward justice seems apt as a way to think about capital punishment as this year comes to a close. This journey will be, as he says, “very slow, a matter of two steps forward, one step back.”
But that is still progress. We should not miss the fact that in 2021 there was more forward movement than setbacks on the way to ending America’s death penalty.
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