In his most recent book, How Change Happens, Harvard legal scholar Cass Sunstein points to how small shifts in social norms can eventually lead to monumental social changes. Sunstein’s analysis can easily be applied to the death penalty, where social norms are regularly shifting. As a result, how the death penalty is being debated today is very different from how we talked about it at the time when most states enacted their capital statutes back in the 1970s.
Yes, the norms are changing. We need look back only as far as the 1990s, when hardly an eyebrow was raised when prisoners were executed for crimes that predated their 18th birthdays and people caught on fire in ramshackle electric chairs. Few concerns were raised about erroneous convictions or inequities in how the death penalty was applied. Very few politicians stood opposed to the death penalty. People seemed to support capital punishment with a contagious and erroneous belief that virtually everyone else supported it.
But much has changed, and the time is ripe for Americans to have renewed conversations about the wisdom of putting people to death.
Today, support for the death penalty is the lowest we have seen in 45 years, the size of American death rows has been decreasing for 18 years, and executions have fallen from nearly 100 per year to a annual rate of two dozen. Especially gruesome methods of killing, such as hanging, electrocuting, gassing, or shooting prisoners have virtually disappeared. We are left with lethal injection, which has so many problems that it has ground executions to a halt in several states. Since 1984, eleven states have abolished the death penalty, and four others have imposed moratoria on executions. Of the 29 states that authorize the death penalty today, ten have had no executions in the past decade.
How can we understand these transformations? As we see it, attitudes toward the death penalty, much like attitudes toward LBGTQ issues and recreational marijuana, are changing more rapidly and more profoundly than attitudes about any other social issues in America.
One reason is that the alternatives to the death penalty have changed, with every state now guaranteeing that anyone eligible for the death penalty can and will be incarcerated for life terms. This takes the wind out of the argument that we need executions to guarantee public safety. A seminal 2012 report by the National Academy of Sciences found that there was not a scintilla of evidence showing that executing offenders would reduce our homicide rates any better than long imprisonment. We now have dozens of studies conducted by legislators, state supreme courts, and numerous academics that show that the fiscal costs of the death penalty far exceed the costs of long imprisonment. Those who once supported the death penalty as a way to allegedly help families of homicide victims have seen that spending millions on one case leaves few resources to assist other families.
And there are other ways that the death penalty is conflicting with our shifting social norms. There have now been 165 inmates freed from our death rows in the past fifty years after the state acknowledged that they got the wrong guy. Studies have consistently shown that the odds of a death sentence for killing a white victim are four or five times higher than for killing a person of color. The death penalty is almost exclusively reserved for poor defendants, and too often for those with inadequate legal representation.
All these documented shortcomings in how the death penalty is actually applied — racial bias, economic bias, cost, sentencing the innocent to death and pure arbitrariness — have fueled a new questioning of capital punishment. Support for the death penalty by the leaders of America’s largest religious denominations has virtually dried up. By far the largest single religious denomination in the U.S. is the Roman Catholic Church, and its leader, Pope Francis, has made it clear that the death penalty should not be tolerated under any circumstances. After all, what would Jesus do?
While the number of executions in the U.S. is far fewer than many of its proponents would want, last night we saw the 1,500th prisoner executed since the modern era of the death penalty began in the 1970s. The landmark should be seen as an invitation for all of us to take a new look on how the death penalty is being actually applied today. Do whatever benefits the death penalty may offer — if any — outweigh its liabilities?
Justice Thurgood Marshall was correct in 1972 when he predicted that if people were better informed about the death penalty, they would reject it. That is why the norms are changing, why capital punishment is in decline, and why eventual abolition is inevitable.
Michael L. Radelet
University of Colorado-Boulder