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The Government’s Arguments for Restoring the Death Penalty All Fail

The death penalty in the U.S. is dying, and yet Attorney General William Barr announced that the federal government would begin executing people for the first time since 2003.

William Barr and Donald Trump
Photo by Chip Somodevilla/Getty Images

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Yesterday, Attorney General William Barr announced that the federal government would begin executing people for the first time since 2003. He seemed to justify this decision in four ways: first, the death penalty is what the American people want, second, these people have committed acts so heinous that no one should care if they live or die, third, the system is fair and accurate, and fourth, killing prisoners will bring peace to victims. “Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the president,” Attorney General Barr said.  “Under administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

All of these arguments fail.

The death penalty in the U.S. is dying. New death sentences are plummeting, and the few that do come down are coming from a handful of outlier jurisdictions, with 31 percent of the sentences coming from three counties: Riverside in California, Clark in Nevada, and Maricopa in Arizona. Two percent of counties nationwide now account for the majority of prisoners on states’ death rows.

Even when prosecutors seek the death penalty, juries around the country are often resisting them. In Wake County, North Carolina, home to Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: “At some point, we have to step back and say, ‘Has the community sent us a message on that?’”

A Gallup poll in October 2018 found that 56 percent of Americans still favor the death penalty for murder. But these numbers have trended downward since the mid-1990s. And, as Matt Ford noted in The New Republic, “While most Americans may favor the death penalty in theory, the actual practice is a remote abstraction for them.” According to Rob Smith, executive director of The Justice Collaborative (publisher of the Daily Appeal), the more revealing metric for public support is that when asked to make real life-or-death decisions about a real person in a real case, prosecutors increasingly don’t seek and jurors don’t return death sentences.

Curiously, only 49 percent of Americans told Gallup they thought the death penalty was applied fairly. This might prompt a person to ask: What’s going on with the 7 percent of people who don’t agree that the death penalty is applied fairly but are still in favor of it? We might wonder why we don’t defer more to experts, who tell us that the death penalty is not only unfairly applied, but it also accomplishes none of its stated goals.

Recently, Philadelphia District Attorney Larry Krasner has asked the Pennsylvania Supreme Court to declare that the death penalty violates the state’s Constitution. “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,”  his office argued in a brief. “It really is not about the worst offenders,” Krasner told The Appeal. “It really is about poverty. It really is about race.”

Out of the 45 people on death row from Philadelphia, 37 are Black, and four are from other “minority groups,” according to the brief. Seventy-two percent of Philadelphia’s death cases have been overturned, almost half due to ineffective assistance of counsel. Among those on death row, 62 percent were represented by an attorney found to be ineffective in another capital case. “These were people too poor to afford their attorneys,” Krasner told The Appeal. “These attorneys did a dismal job.”

These patterns are not unique to Philadelphia. Even though the Supreme Court has ruled that capital punishment must be limited to those “whose extreme culpability makes them the most deserving of execution,” and that it is cruel and unusual punishment to execute the insane, the intellectually disabled, and people under 18, people in the first two of those groups continue to be sentenced to death. Of those executed in 2017, 20 of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect, or abuse.

Prosecutors also keep sending innocent people to be killed. “As of Oct. 17, 2017, 160 people have been exonerated from the nation’s death rows, and numerous executions have taken place despite strong evidence of innocence,” according to The Appeal. “According to one study, 1 out of every 25 people sentenced to death is most likely innocent.”

And many victims and their families aren’t on board with the executions. “Yes, he killed my grandma, and he killed a little girl,” said Michael Slim, whose grandmother was killed by Lezmond Mitchell, one of the men that is now slated for execution. At the trial, Navajo officials asked federal officials not to seek death, but federal prosecutors did so anyway. At the time, Slim was pleased with that decision. “Looking back on it, yes, I did believe in it when it first happened,” he told Martin Kaste of NPR. “I felt happy, but that was the wrong kind of happy, because God should make that decision, not me.”

“We know that the death penalty is deeply flawed, with a terrible history of racism in its implementation and an equally terrible history of errors, resulting in many innocents on death row,” death penalty activist Sister Helen Prejean wrote in a statement yesterday. “We also know that it does not offer the healing balm to victims’ families that is promised. And let’s think about the power to take the life of our fellow citizens. What confidence can we have that our governments can be trusted with such power? When a penalty is absolutely final, surely we must seek a flawless system, and what government, what group of people, can deliver that?”