The death penalty always has been a test of how far we are willing to allow the government to go in punishing crime. We should constantly examine the exercise of that power with a well-informed but skeptical eye.
The sporadic and embarrassing use of capital punishment in 2017 serves as further proof that states with the death penalty are falling woefully short in what may be its final exam.
{mosads}I know well how the system works — or, more accurately, doesn’t work. From 1998 until 2001, when I was the attorney general for Virginia, the commonwealth executed 36 people. If you believe that the government always gets it right, never makes serious mistakes and is never tainted with corruption, then you can comfortably support the death penalty. I no longer have such faith in the government. I cannot and do not support the death penalty.
Capital punishment in the United States is slowly sputtering to a halt because ineptitude and deceit have thoroughly eroded the trust once afforded the government. A new report from the Death Penalty Information Center (DPIC) provides evidence of capital punishment’s steep decline. Executions and new death sentences in 2017 remained near historic lows, trailing only the 2016 totals as the lowest totals seen in the country in more than a quarter-century.
Perhaps the most telling indicator of this erosion in public confidence comes from the most recent Gallup Poll. Support for the death penalty dropped to 55 percent in 2017, its lowest measure in 45 years. Even the political divide may be lessening. Although a majority of Democrats oppose the death penalty and 72 percent of Republicans favor it, Republican support dropped 10 percentage points since last year.
A revealing example of why the American public increasingly distrusts states to properly exercise the awesome power over life and death occurred on Nov. 15, when Ohio attempted to execute Alva Campbell. With severe pulmonary disorder, Campbell, 69, uses a walker and a colostomy bag. Corrections officials poked and prodded him for more than 80 minutes in a failed attempt to find a vein suitable for the lethal drugs they wanted to inject. Campbell’s physical disabilities contributed to turning this final act of the criminal justice system into an uncertain medical experiment in the taking of life.
The state failed its test by every measure. The execution was halted, and Campbell was returned to his cell, pending another attempt scheduled for June 2019. More critically, the state did not meet its responsibility to act with respect and dignity in the treatment of human life.
Ohio is not alone in mishandling the death penalty. Criminal justice experts attribute the death penalty’s gradual demise to many factors, especially the frightening realization that some innocent lives inevitably will be taken. DPIC’s report recorded four more prisoners who were exonerated and freed from death row this year, bringing the total to 160 people since 1973, and four who were executed despite substantial questions as to their guilt. Both these exonerations and the executions are a clear reminder that the problem of innocence is not going away.
Only a few states regularly carry out executions; in 2016, five states executed inmates and this year, eight states did. Just four states executed more than two inmates in 2017. Harris County, Texas — the nation’s most prolific county for executions — had no executions for the first time since 1985.
Across the country, the 23 executions in 2017 were the second fewest in 26 years, and the projected 39 new death sentences were the second fewest in the modern era of the death penalty. Many states even in the Deep South had no death sentences this year. In cities such as Jacksonville, Houston and Philadelphia, which had been major sources of death sentences, voters in recent elections ushered in new prosecutorial leadership that is much more reluctant to use capital punishment.
The negative effects from wrongful convictions, the experimental use of drugs in the taking of life, and the lack of coherent rationale for executing a random few from the thousands eligible for the death penalty are compounded by the specter of racial bias. In 2017, in Arkansas, for example, four of the five men whose executions were stayed are white, and three of the four who were executed were black. Nationally, even though black people are victims in about half of murders, the majority of executions in 2017 were in cases with white victims.
The broken system is beyond repair. Each year, even the hobbled application of the death penalty is an embarrassing burden for all involved. In the death-penalty lottery, only a fraction of murder cases result in death verdicts, and family members of murder victims in those cases can feel little solace from a sideshow centered on the defendant. We could blame many government officials for the debacle of the death penalty, but the ever-mounting evidence of its failures casts grave doubt on whether it should continue at all.
Mark Earley, Virginia’s attorney general from 1998-2001, is a member of The Constitution Project’s Death Penalty Committee.