In a cover story for TIME Magazine, award-winning journalist and TIME editor-at-large David Von Drehle explores the decline of capital punishment in the U.S. Von Drehle offers five significant reasons for the drop in death sentences, executions, and public support for the death penalty in the United States. First, he cites persistent problems with the administration of the death penalty: botched executions and a lengthy appeals process that fails to identify wrongful convictions for decades, if at all. Second, he points to the falling crime rate, showing that support for the death penalty has closely tracked the national murder rate throughout the 20th century. The third reason Von Drehle gives is the erosion of the justification for capital punishment. Life without parole sentences provide an alternative way to ensure that a murderer will never be released and an equivalent to "[w]hatever deterrent capital punishment provides." He also describes the historical use of executions as a tool of white supremacy. While he notes that "the overt racism of the old order is now plainly unconstitutional," the system remains plagued by economic bias, as a result of which "[t]hose without the capital get the punishment." Fourth, he highlights the financial cost of the death penalty, which has led some prosecutors to decide that death sentences are simply not a priority within a constrained budget. Finally, he says, "Actions of the legislatures, lower-court judges and governors can all be read by the Supreme Court as signs of 'evolving standards of decency' in society," which the U.S. Supreme Court may eventually see as justification for striking down capital punishment. He concludes, "The facts are irrefutable, and the logic is clear. Exhausted by so many years of trying to prop up this broken system, the court will one day throw in the towel."
California Superior Court Judge Thomas Goethals (pictured) disqualified the entire Orange County District Attorney's Office from prosecuting a death penalty case after finding that prosecutors had engaged in a systemic pattern of police and prosecutorial misconduct involving the deliberate, but undisclosed, use of prison informants to obtain incriminating statements from defendants. None of the 250 prosecutors in the office are now permitted to participate in the case. Attorneys for the defendant, Scott Dekraai, say that after he had invoked his right to counsel, he was deliberately placed near a repeat jailhouse informant who had been given instructions to try to elicit a confession from him. Such a practice is unconstitutional because the informant in a cellmate interaction orchestrated by prosecutors or police is in effect an agent of the police, and the interaction is too much like an interrogation. Defense attorneys also discovered that the Orange County Sheriff's Department had maintained a secret record-keeping system for more than 25 years that detailed its systemic surreptitious use of prison informants. That system contained potentially exculpatory information, but officials denied its existence and refused to turn over records to defense counsel, in violation of the law. California Attorney General Kamala Harris has appealed Judge Geothals' ruling, but said her office will investigate the allegations.
In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."
The Nebraska legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska becomes the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It is the first predominantly Republican state to abolish the death penalty in over 40 years, and state legislators said Republican support was critical to the bipartisan repeal effort. Sen. Jeremy Nordquist said, "This wouldn't have happened without the fiscally responsible Republicans who aren't just beholden to conservative talking points, but are thoughtful about policy." Sen. Colby Coash cited fiscal concerns among his reasons for supporting repeal: "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years. This program is broken." The sponsor of the repeal bill, Independent Senator Ernie Chambers, opened the repeal debate with a reference to the historic nature of the pending vote. “This will be the shining moment of the Nebraska Legislature,” he said. “The world, by anybody’s reckoning, is a place filled with darkness, contention, violence. We today can move to lift part of that cloud of darkness that has been hovering over this state for all these years.”
The Supreme Court has agreed to hear the case of Timothy Foster, an African-American defendant who was sentenced to death by an all-white jury after Georgia prosecutors had struck every black prospective juror in his case. On May 26, the U.S. Supreme Court granted review in Foster v. Humphrey to determine whether the prosecution’s actions violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. Foster challenged the prosecution’s jury strikes as racially discriminatory at the time of jury selection, but the trial court permitted the strikes. Nineteen years after the trial, his lawyers obtained the prosecutors' notes from jury selection, which contained information that contradicted the “race-neutral” explanations for the strikes that the prosecution had offered at trial.
In a discussion at the George Washington University School of Law, retired Supreme Court Justice John Paul Stevens said the death penalty creates a higher risk of error than other criminal cases and is unfair, unnecessary, and a "terrible waste" of resources. Using the Boston marathon bomber trial as an example, Justice Stevens said jury selection procedures in capital cases produce juries who are "not representative of the community." He said that, under these procedures, "most of the 75%" of Bostonians who opposed the death penalty "could be challenged for cause and do not make it" onto the jury. "That’s one reason that the death penalty is much more unfair than we thought it was at the time back when we decided the three cases" that reinstated the death penalty in 1976 after the Court had previously ruled its application unconstitutional. Justice Stevens went on to say, "I had expected that the procedures would be more protective of the defendants in death cases than in ordinary criminal cases. And in several respects, ... they in fact are more pro-prosecution. And so the risk of error is larger in death cases than it is in other cases, and that certainly can’t be right." Finally, he compared the death penalty unfavorably to the alternative of life without parole: "it's really not necessary because life imprisonment without parole protects the public at least as well as execution does and so the justification for the death penalty is diminished. And I think if you make a cost-benefit analysis – the cost of the trials and all the rest – it is a terrible waste of society’s resources to have these capital trials that go on for so long and produce an awful lot of unfortunate results."
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At age 6, Clifford O'Sullivan (pictured with his mother) testified in favor of a death sentence for the man who had killed his mother. That man, Mark Scott Thornton, is on California's death row. Now, 20 years later, O'Sullivan says he believes Thornton's life should be spared. When he took the witness stand during the sentencing phase of Thornton's trial, O'Sullivan told the jury, "All I think is that what the bad man did to my mom should happen to him. It's really sad for my family 'cause she was one of the greatest mothers I've met." In the years that followed, O'Sullivan struggled to heal from his mother's death, experimenting with drugs and alcohol and even committing burglary as a teen. Today, he is an emergency room nurse in Nashville. In an interview with The Tennessean, he says he believes only a "hair-thin" difference in circumstances stopped him from ending up like Thornton. O'Sullivan also has become disillusioned with the death penalty, saying, "It certainly doesn't do the two things it's supposed to do. Offer retribution and deterrence." In 2014, he met Thornton, and the men spent 5 hours talking about their lives. The meeting cemented O'Sullivan's belief that Thornton should not be executed. "If they put him up for a date I would stop it, just like I started it," O'Sullivan says. "It wouldn't happen. Over my dead body."
Conservative commentator George Will has decribed capital punishment in America as "withering away." In his syndicated column in the Washington Post, Will outlines a conservative case against the death penalty, highlighting Nebraska's recent legislative vote to repeal capital punishment. Writing that "exonerations of condemned prisoners and botched executions are dismayingly frequent," Will lists three primary reasons why he believes conservatives should oppose capital punishment: "First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program...Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated." Will recognizes that there is an urge to severely punish the worst crimes, saying, "Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality." However, he says, this satisfaction is "purchased with disproportionate social costs." America, he says, is exhibiting "a healthy squeamishness" about the death penalty "that should herald abolition."
Nebraska's unicameral legislature passed a bill to repeal the state's death penalty and replace it with a sentence of life without parole. On May 20, the bill passed its third and final round of debate on a 32-15 vote, receiving bipartisan support. Senator Al Davis said, "There are so many reasons why we need to eliminate the death penalty in Nebraska. It's fundamentally unfair, a terrible mistake and bad justice." Gov. Pete Ricketts has indicated that he will veto the bill, but a veto can be overridden with the support of 30 senators. The bill is prospective only, so if it becomes law, it will not affect the 11 inmates currently on Nebraska's death row. Nebraska has executed three prisoners, all by electrocution, since re-enacting the death penalty in the 1970s. Its last execution was in December 1997.