A single day last week offered a rare glimpse into the deep divisions that increasingly characterize capital punishment in the United States. And it may turn out to be a watershed moment in the struggle to end the death penalty in this country.
On April 20, Washington state formally abolished its death penalty, making it the 23rd to do so, but Florida and Oklahoma moved in the opposite direction, doubling down on their commitment to state killing.
These developments suggest, as the Death Penalty Information Center (DPIC) said in its 2021 annual report, that America’s death penalty is now “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.”
Ironically, it is the “extreme conduct” of states like Florida and Oklahoma that is fueling the nationwide “erosion” that the DPIC describes and that Washington’s abolition decision exemplifies.
When he signed the abolition bill, Washington’s Gov. Jay Inslee recounted the recent history of capital punishment in his state and explained why it was time to end it. “I initiated a moratorium against the death penalty in Washington State in 2014, and our rationale for that decision was affirmed by our (state) Supreme Court decision in 2018. […] They made clear, and we know this to be true, that the penalty has been applied unequally and in a racially insensitive manner.”
The fact that Inslee didn’t feel compelled to say more last Thursday reflects the fact that, as has been the case in other states, the death penalty’s end in Washington came gradually, allowing citizens time to acclimate themselves to living without it.
Nine year earlier, when he took the first step in that process, Inslee offered a fuller account of the death penalty’s troubling problems.
“Equal justice under the law,” he said, “is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred.”
“There have been too many doubts raised about capital punishment,” Inslee continued. “There are too many flaws in the system. And when the ultimate decision is death there is too much at stake to accept an imperfect system.”
Inselee’s focus on the system’s flaws and imperfections echoes the sentiments of governors in other states that have abolished capital punishment in recent years.
In 2007, when then-New Jersey Gov. Jon Corzine signed the bill ending the death penalty in his state, he said, “There are many reasons to ban the death penalty in New Jersey. None is more important than the fact it is difficult, if not impossible, to develop a foolproof system that precludes the possibility of executing the innocent.”
And he explained, “If the State is going to undertake this awesome responsibility the system to impose this ultimate penalty must be perfect and can never be wrong. But the reality is the system is not perfect — far from it.[…] Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment […] the proper course of action is to abolish it.”
This focus on the death penalty’s unreliability and arbitrariness is why what happened last week in Florida and Oklahoma, while deeply troubling to everyone committed to justice and fairness, may add impetus to the nationwide abolitionist movement.
In Florida, Republican Gov. Ron DeSantis signed a bill allowing juries to recommend a death sentence with only 8 of the 12 people on a jury voting to do so. The New York Times notes that the law makes Florida the state with “the lowest threshold for imposing the death penalty.”
DeSantis made his desire to ease the way for executions clear. “Once a defendant in a capital case is found guilty by a unanimous jury,” he said, “one juror should not be able to veto a capital sentence.”
But research shows that false convictions and exonerations are higher in states with sentencing systems that prevent a single juror from doing what DeSantis abhors. Florida should be especially wary of making it easier to put the innocent to death: even now, under its discarded jury unanimity law, Florida leads the nation in exonerations in death penalty cases.
Completing Thursday’s death penalty trifecta was an Oklahoma court decision that vividly illustrates the risk of error of the kind that Florida is embracing, but which other states have found intolerable.
The Oklahoma Court of Criminal Appeals took the extraordinary step of refusing to grant a request from that state’s Republican attorney general, Gentner Drummond, that it vacate Richard Glossip’s conviction and death sentence after Drummond concluded that his trial had been “unfair and unreliable.”
The overwhelming evidence of error in Glossip’s case has attracted nationwide attention, galvanized even conservative death penalty supporters in Oklahoma to oppose his execution, and convinced the state’s chief law enforcement official that he deserves a new trial.
The Oklahoma court downplayed evidence that led two independent investigators to conclude that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder.” It insisted that his May 18th execution should proceed as scheduled.
The court stressed the importance of bringing Glossip’s case to a close because, as Judge Gary Lumpkin explained, “(F)inality of judgments […] is a foundational principle of our system of justice.”
Drummond has followed up on the court’s unprecedented decision by taking an unprecedented step of his own, asking the state’s Pardon and Parole Board for clemency in the Glossip case.
Still, journalist Mark Joseph Stern got it right when he said that the court acted as if “preserving Glossip’s sentence mattered far more than sparing his life.”
The horrors of what the Oklahoma court wants to do in the Glossip case and of what Florida has done with its death penalty system are the kind of things that have put large swaths of this country on the road to abolition.
However, last Thursday was not just a reminder of Florida and Oklahoma’s continuing appetite for state killing. What Washington did that day signals, as political theorist Michael Walzer once said about other struggles for justice, that “The ‘door of hope’ is still open” in the quest to end America’s death penalty.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. Follow him @ljstprof.