The Demise of the Death Penalty in the USA:
The Politics of Capital Punishment and the Question of Innocence
Richard D. Vogel
Copyright © 2009 by Richard D. Vogel
Permission to copy granted
The Killing Continues
Since the suspension of the death penalty in Japan in September of 2009, the US is the only developed nation in the world that continues to execute its citizens -- but, perhaps, not for long. The unmasking of the political agenda behind state sanctioned killing during the past 25 years and the growing number of exonerations of prisoners on death row could lead to the final demise of the death penalty in the USA.
Civil executions across the nation were halted temporarily 40 years ago and should never have resumed. Understanding why the death penalty was restored opens the door for the campaign to permanently abolish capital punishment.
1,182i executions have taken place in the US since the restoration of capital punishment in 1976 following a moratorium that went into effect in 1968 after a successful challenge spearheaded by lawyers from the NAACP Legal Defense Fund. Many observers believed that the Supreme Court decision in the case of Furman v. Georgia (1972), which recognized that the death penalty as it was being practiced in the US was in violation of the Eighth and Fourteenth Amendments and therefore unconstitutional, signaled the end of capital punishment in the US. In his concurring opinion in that landmark decision, Justice Thurgood Marshall reviewed the overwhelming evidence of racial, gender, and social class discrimination in the administration of the death penalty in the history of the nation. Concluding his argument, Marshall presented an eloquent announcement of the abolition of the death penalty in the US:
In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve "a major milestone in the long road up from barbarism" and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.
The restoration and exploitation of the death penalty after the Furman decision offer a classic study of reactionary politics in action.
The first step in understanding the current politics of the death penalty in the US is to identify the jurisdictions that have reinstituted and practiced state sanctioned killing most often since the end of the moratorium.
The Killing Zone
Map 1 accounts for all of the executions that have been carried out under civil authority in the USA since 1976, state by state:
The most striking feature of map 1 is the regional disparity in the use of the death penalty in the US. Although 35 states have retained capital punishment, only a few jurisdictions in the Deep South and the Midwest have administered it with any regularity. With the exceptions of the southwestern states of California, Nevada, and Arizona, executions in the west and mid-south have been so rare that the retention of capital punishment in those regions is essentially more of a symbol than a functioning tool of state power. Most of New England and several states in the upper Midwest have shunned the practice of state sanctioned killing altogether.
Chart 1 supplements map 1 by presenting the time-trends of executions in the US since the end of the moratorium:
Chart 1 clearly illustrates the two salient facts of the use of the death penalty in the US in modern times.
- During the 1980s and 1990s when the use of the death penalty was on the decline around the world and the international campaign to abolish the death penalty was gaining momentum, executions in the US were climbing precipitously.
- Throughout the period of the resurgence of capital punishment in the US, executions in the southern states have dominated state sanctioned killing in the nation, accounting for a full 81% of the national total during this period.
A glance back at map 1 reveals that, even within the Killing Zone, there are striking differences in the use of the death penalty.
Death Penalty Central
The State of Texas is obviously in a class by itself and deserves the title of Death Penalty Central. No other state even comes close to the Texas total of 446 executions since 1976. Texas accounts for over 45% of the executions in the South and 37.5 % of all executions in the nation in modern times. Texas remains in the forefront of state sanctioned killing with 22 executions to date in 2009 and four more prisoners scheduled to die before mid-January, 2010.
The total of the executions in Texas combined with those in Virginia and Oklahoma, the two second tier jurisdictions, accounts for 67% of the executions in the Killing Zone and a 54% of all executions in the nation. A close examination of the administration of the death penalty in these three states unmasks the politics of state sanctioned killing in the US during the past 25 years.
The Politics of State Sanctioned Killing in the US
Chart 2 compares the execution trends in the three vanguard states of the Killing Zone:
TEXAS. Chart 2 documents the central role of the State of Texas as the driving force behind executions in the US, accounting for almost one-half of the executions that have taken place in the South since 1976. The rapid rise and spike in Texas executions occurred during the governorship of George W. Bush who signed the death warrants of 151 men and 1 woman during his tenure as governor of the state (1995-2000) before he moved on to the office of President of the United States where he approved the only three federal executions in modern times.
Executions in Texas have dropped slightly but are continuing under the governorship of James Richard (Rick) Perry, Bush's neoconservative successor, who presided over his 209th execution in mid-November, 2009. The ongoing controversy over the question of if Governor Perry approved the execution of an innocent man in 2004 could become a turning point in the campaign to abolish capital punishment in the USA. (The execution of innocent persons as a factor contributing to the demise of the death penalty is discussed in the next section.)
The number of executions in Oklahoma and Virginia, though not approaching the level of state sanctioned killing in Texas, clearly represent a second distinct tier in the Killing Zone. The fact that the abrupt rise in executions in these two states coincided with the surge of executions in Texas reveals a common political agenda.
OKLAHOMA. The trend of executions in Oklahoma reflects the same neoconservative commitment to the death penalty that Bush exhibited and Perry is maintaining in Texas. Chart 2 shows that only three executions took place in Oklahoma between the resumption of capital punishment and the governorship of Frank Keating (1995 to 2003), a neoconservative Republican who served in high positions in both the Reagan and George H.W. Bush administrations before becoming governor. State sanctioned killing accelerated under Keating, accounting for 56% of all modern executions in Oklahoma, and dropped off as soon as he left office.
VIRGINIA. Chart 2 also tracks the parallel trend of executions under neocon Republicans in Virginia. Governors of Virginia are restricted to a single term, but Republicans George F. Allen and James (Jim) Gilmore III, who served consecutive terms (1994-1998 and 1998-2002), together presided over 63% of the executions that have occurred in modern Virginia, establishing a legacy of using the death penalty similar to those of Texas and Oklahoma. As chart 2 illustrates, executions in Virginia dropped immediately after Gilmore left office.
A Note on FLORIDA and MISSOURI
The execution histories of Florida and Missouri, the third tier states in the Killing Zone, are pertinent to the issue of the politics of contemporary state sanctioned killing in the US. Florida, the first state to re-enact the death penalty after the moratorium and the second to resume executions, has killed regularly throughout the modern period, including during the governorship of Jeb Bush, a charter member of the neoconservative Project for the New American Century. The State of Missouri did not resume civil executions until neoconservative Republican John Ashcroft became governor. Ashcroft later served as Attorney General under George H. Bush.
What emerges from the history of executions in Texas and the rest of the Killing Zone is that the driving force behind the restoration and use of capital punishment in the US has been the neoconservative Republicans' use of the death penalty as an expression of political power.
Renewing the campaign to abolish capital punishment in the US involves acknowledging the reactionary agenda behind the recent history of the death penalty and linking it to the issue of the wrongful convictions of innocent people.
The Question of Innocence
There is no greater miscarriage of justice than the execution of a person for a crime that he/she did not commit. Though state sanctioned killing is a clear violation of the inalienable right to life, wrongful execution is one the most egregious desecrations of human rights in the modern world. No one will ever know how many innocent persons have been executed in the US, but the probability that it has happened is beyond any reasonable doubt -- since 1973, 138 people in 26 states have been released from death row because of compelling evidence of their innocence.ii From 1973-1999, there was an average of 3.1 exonerations per year, and from 2000-2007 there was an average of 5. A total of 43 death row inmates have been exonerated in the states of Florida, Texas, and Oklahoma (23, 10, and 10, respectively), and the State of Illinois has released 20. The high number of exonerations in Illinois prompted Governor George Ryan to commute the death sentences of all 156 prisoners on death row in the state before he left office in 2003.
The extensive news coverage of death row exonerations has sparked a growing reluctance on the part of grand juries to indict for capital crimes and of trial juries to find defendants guilty and impose the death sentence. As a result, prosecutors, wishing to avoid hung juries, are more hesitant to pursue capital punishment than they were during the glory days of the neoconservative hegemony of the criminal justice system.
Chart 3 compares the recent trends of prisoners sentenced to death by state courts and death row exonerations:
Chart 3 shows the dramatic decline in prisoners sentenced to death during the last 15 years as the number of death row exonerations has continued to mount and public support for the death penalty has declined. Even during the six-year period when the number of executions was the highest (1997-2002; see chart 1), new prisoners sentenced to death dropped over 40%. The continuation of executions during this critical period underscores the neocon dedication to the use of the death penalty.
Nowhere was this cynical commitment of neoconservative politicians more apparent than in the death penalty legislation of the 1990s. Despite the exonerations and public misgivings about capital punishment documented in chart 3, the neocons, who had promised to clear the "backlog" of executions in their reactionary Contract with America (1994), pushed through the federal Antiterrorism and Effective Death Penalty Act of 1996 which facilitated the execution of many prisoners by severely limiting their legal right of habeas corpusiii.
In view of the speedup of executions in the 1990s in the face of the mounting number of death row exonerations, the conclusion that, for the neocons, the question of innocence is secondary to their dedication to the death penalty is fully warranted. Fortunately, chart 3 indicates that the citizens who serve on grand juries and trial juries do not share that commitment.
However, the decisions of individuals or small groups acting in good faith alone will not end the practice of state sanctioned killingiv -- only dedicated political action will lead to the final abolition of the death penalty in the US.
Understanding the status of the death penalty today reveals the path to abolition.
The Status of the Death Penalty Today
The unmasking of the reactionary political agenda behind the death penalty in the US, linked to the troubling issue of the conviction and execution of innocent people, provides a firm foundation for a new movement to abolish the death penalty in the USA. To be successful this time, the new abolitionists must be more politically sophisticated than activists of the past. They must appreciate the full implications of the contradiction that capital punishment in the US is sanctioned by the US Constitution despite the fact that it is in blatant violation of established human rights conventions.
The Constitutional Sanction
Two amendments to the US Constitution govern capital punishment: Article VIII prohibits cruel and unusual punishment, and Article XIV offers a specious guarantee of due process and equal protection under the law. In 1976, the Supreme Court ruled in the case of Gregg v. Georgia that the requirements of Articles VIII and XIV had been met under the revised capital punishment law of Georgia and therefore the death penalty was constitutional. State sanctioned killing was reaffirmed by the highest court in the nation and the executions resumed.
The Supreme Court justices recognized the influence of history on their decision: "The existence of capital punishment was accepted by the Framers of the Constitution, and for nearly two centuries this Court has recognized that capital punishment for the crime of murder is not invalid per se."
But it must be remembered that a constitution is a written instrument that embodies the political values of its authors. The Framers of the US Constitution were all rich men who were more dedicated to the preservation of their private property rights and attendant privileges than to protecting the rights of common men. It must also be kept in mind that many of the Framers were slaveholders whose fortunes were derived from slavery and whose lives were under constant threat from the men and women held in subjugation. For slaveholders, the death penalty was an essential weapon of political domination.v
The neoconservative politicians who reinstated capital punishment in modern America are political successors of the men who framed the US Constitution. The neocons are rich men seeking to maintain political power in a highly stratified society threatened by a growing underclass of citizens. It is these neocons who want to retain state sanctioned killing as the ultimate symbol of state power in order to reinforce their reactionary political rule.
In the final analysis, the restoration of the death penalty and the surge of civil executions in the US that peaked in 1999 represents the greatest reversal in the evolution of justice since the formal reinstatement of the death penalty in Italy under the rule of Benito Mussolini.
The Human Rights Issue
The international campaign for the recognition of the right to life unthreatened by any state is the antithesis of state sanctioned killing in the USA.
Here is the timeline of that campaign:
1948. The international effort to abolish capital punishment began with the adoption of the Universal Declaration of Human Rights(UDHR) by the General Assembly of the United Nations. Article 3 of that document proclaimed "everyone has the right to life" and provided the founding principle for the campaign to abolish state sanctioned killing. Since the ratification of the UDHR, 118 member states have abolished capital punishment either in law or in practice.
1966. The International Covenant on Civil and Political Rights sought to strengthen the moral imperative against state sanctioned killing expressed in the UDHR by encouraging member states to abolish capital punishment. Article 6 of the Covenant urged member states that retained the death penalty to restrict its imposition for only "the most serious crimes" and established a Human Rights Committee to monitor the implementation of the Covenant. To date the Covenant has been ratified by 152 nations.
1982. Europe has led the campaign for the abolition of capital punishment. Protocol 6 to the European Convention on Human Rights abolished the death penalty in peacetime in all member states. Forty-six nations have signed.
1989. In the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penaltythe UN confronted the issue of capital punishment head-on:
The States Parties in the Present Protocol,
Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,
Recalling article 3 of the Universal Declaration of Human Rights…, and article 6 of the International Covenant on Civil and Political Rights…,
Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,
Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,
Desirous to undertake an international commitment to abolish the death penalty,
Have agreed as follows:
1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.
2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.
The Second Optional Protocol allowed the use of the death penalty only during wartime and with justifiable reason. The Protocol has been adopted by 72 member states.
1989. TheConvention on the Rights of the Child prohibited the imposition of capital punishment on persons below 18 years of age. The Convention, ratified by 192 countries, is the most widely accepted human rights resolution in history.
1990. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted by the General Assembly of the Organization of American States provided for the total abolition of the death penalty but allows member states to retain capital punishment in wartime if they declare that reservation. So far 11 states have ratified the Protocol.
2002. Protocol 13 to the European Convention on Human Rights extended the 1982 prohibition of the death penalty to all circumstances. A total of 41 states have ratified the Protocol.
2007. The UN General Assembly passed a landmark resolution calling for a moratorium on executions in all member states that had retained capital punishment and urged them to begin phasing out the use of the death penalty.
The sorry record of the USA on human rights in general and the death penalty in particular stands in stark contrast to the progress of the international abolition campaign:
- In the second half of the 20th century, when the international campaign to abolish the death penalty was gaining momentum in Europe, reactionary politicians in the US were restoring capital punishment as a symbolic political tool to reinforce their rule.
- The US has not ratified The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty. In the late 1980s, when the Protocol went into effect, the surge of executions in the US was well underway.
- The US has not ratified the Convention on the Rights of the Child. Since 1990, over half of the known executions of child offenders (19 of 36) have taken place in the US. Only eight states in the modern world have not ratified the Convention -- China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Yemen, and the United States.
- The United States has not ratified the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
- At the turn of the century, when the European Union was about to completely ban state sanctioned killing, executions in the US under neoconservative administrations had surpassed the pre-moratorium levels of mid-century.
- The US voted against the UN resolution calling for a moratorium on the death penalty in 2007.
A New Abolition Campaign
Rejection of the political agenda behind state sanctioned killing in the US and declining public support for capital punishment because of wrongful convictions could lead to the eventual abandonment of the death penalty in the USA. But disuse is not enough. De facto abolition reserves the state's power to execute citizens and does not recognize the right to life as a universal human right. The abolition of capital punishment is clearly a progressive political issue that must be confronted and resolved by political means.
Protocol No. 13 to the European Convention on Human Rights states the relationship between democracy and the abolition of the death penalty succinctly:
Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; …The death penalty shall be abolished. No one shall be condemned to such penalty or executed.
The advancement of democracy in the United States requires that the campaign to abolish the death penalty that was subverted by neoconservative politicans in the 20th century be revived. To be successful this time around, the abolition movement in the US must become an integral part of a broad civic revolution, the only conceivable force that can reverse the national trends of rising inequality, growing absolute poverty, and escalating political repression. This civic revolution must be based on the vision of a new democracy -- a social order based on the recognition of the inalienable rights of all people rather than the power and privilege of a few.The abolition of the death penalty in the US today can no longer be approached as a single-issue campaign -- the fate of the death penalty and the future course of democracy in the USA are inextricably linked.
iThis is the total as of mid-November, 2009. The Death Penalty Information Center (DPIC) offers comprehensive information on executions in the US and updates its data base as new executions are announced.
iiThe DPIC website includes the profiles of eight cases in which prisoners were executed in spite of serious doubts about their guilt. The Innocence Project, founded in 1992, has aided the exoneration of 244 prisoners who had been convicted of various crimes, including 17 who had spent time on death row. The Project maintains that the number of innocent people incarcerated in the US is staggering.
iiiThe writ of habeas corpus, which has been called the Great Writ, is a legal action through which a person can seek relief from the unlawful detention of him or herself, or of another person. Of English origin, the writ of habeas corpus has historically been an important instrument for safeguarding individuals against the power of the state. The neoconservative attack on the right of habeas corpus in the US is one of the most reactionary maneuvers in legal history.
ivJury nullification has proven to be a viable weapon against injustice but is severely limited because it challenges injustice on a case by case basis, whereas state sanctioned killing is ultimately a political issue that will have to be confronted as such in order to be abolished.
vViolent slave revolts in the American colonies were rightfully feared and ruthlessly punished. An early slave rebellion on Long Island, New York in 1708 resulted in the execution of one Native American slave and three Black slaves by hanging and burning. Authorities retaliated against a larger and more serious rebellion in New York City in 1712 with the mass execution of 20 Black slaves by hanging, burning, and breaking on the wheel. The suppression of a second slave revolt in New York City in 1741 entailed the execution of 30 Black slaves, two white men and two white women. An early southern colonial slave rebellion in Stono, S.C. in 1739 resulted in the execution of at least one slave. The ESPY File, a comprehensive listing of executions in the US, documents at least 276 executions for the crime of slave revolt, 133 executions of slaves for the crimes of arson and poisoning, and 20 executions (including 18 whites) for the crime of aiding a runaway slave.