Americans are losing their appetite for the death penalty. Texas is the exception

Capital punishment in America

Revenge begins to seem less sweet

Aug 30th 2007 | BOULDER, COLORADO, AND HUNTSVILLE, TEXAS
From The Economist print edition

Americans are losing their appetite for the death penalty. Texas is the exception

AP

JOSEPH NICHOLS did not fight the guards at his execution, but he did not co-operate, either. He had to be lifted onto the trolley on which he was to die, and then strapped down. A needle was thrust into his arm. Asked if he had any last words, he said, “Yes, yes I do,” and then swore at a guard. There followed a gurgling sound as his lungs collapsed and, for about a minute, an animal-like noise issued from the back of his throat. After that came silence, broken only by a few people in the room clearing their throats. Then a doctor pulled out his stethoscope and pronounced the condemned man dead. The execution had taken six minutes.

Mr Nichols was one of 22 people put to death in Texas this year (as this was written, two more were scheduled to die). His story was fairly typical. He had been convicted for the murder of a delicatessen clerk during a robbery in 1980. It had not been much of a heist; he said his accomplice “got some change” but he got nothing. The victim was killed by a single bullet. It was unclear which of the two men had fired it, but under Texan law it made no difference, since both admitted to shooting at him. Mr Nichols was 20 when he arrived on death row and 45 when he died. His accomplice was executed in 1995.

Capital punishment is hardly controversial in Texas. Nearly three-quarters of Texans approve of it. In June the governor signed a law that would make some people who rape children eligible for it. But Texas is special. It now accounts for nearly half of all executions in America, of which there have been over 1,000 since 1976. During the six years in which George Bush was governor, the state put 152 people to death. No other governor in America's recent history except his successor, Rick Perry, has overseen so many executions.

Elsewhere, the death penalty is increasingly controversial. The questions of whether and how to impose it are primarily for the states, not the federal government, but Mr Bush's attorney-general, Alberto Gonzales, who resigned this week, tried to have more Americans executed. He failed, and any successor who wants to arrest the abolitionist trend is likely also to be frustrated. Since 2000, 12 out of 50 states have suspended the death penalty. Three of those (Tennessee, Florida and Missouri) have this year reversed that suspension and one (New Jersey) has moved towards formal abolition.

Unlike most Texans, the people of New Jersey have strong doubts about the death penalty. Most would prefer to see murderers locked up for ever. Their representatives are listening: no one has been executed in New Jersey since the 1960s. A state Senate committee has approved a bill to end capital punishment formally; the full legislature is expected to pass it later this year. “If New Jersey holds another execution, I'll eat the body,” vows Michael Radelet of the University of Colorado.

For a few years in the 1970s, America joined most other rich countries in revoking the death penalty. This was not done by passing a law. Rather, the Supreme Court decided, in 1972, that capital punishment was unconstitutional, since it broke the ban on “cruel and unusual” punishment. In 1976 a slightly different set of justices reversed the court's ruling and handed the issue back to the states.

Since then, the states have gone their own ways (see map). Twelve have no death penalty on their statute books. Of the 38 that do, some apply it often, some never. Texas has executed 401 people since 1976, the entire north-eastern region only four. By and large, the way the penalty is applied mirrors local preferences.

Asked by pollsters whether they think murderers should be put to death, two-thirds of Americans say yes, down from four-fifths in 1994. If asked to choose between the death penalty and a life sentence with no chance of parole, however, they are evenly divided. Life that means life is relatively new. Before the 1990s, juries used to worry that if they did not send the man in the dock to his death, he would be freed to kill again after a decade or two. Now nearly every state allows the option of life without parole (Texas introduced it only in 2005). For the first time last year, a Gallup poll reported that a slim plurality of Americans found this option preferable to a capital sentence (48-47%).

Campaigners against the death penalty have been making their case state by state, with little fanfare but some success. The number of executions has fallen by 46% from its modern peak in 1999, to 53 last year (see chart 1). Two-thirds of states executed no one last year, and only six carried out multiple executions. The number of death sentences has fallen even more sharply, by 60% from a peak of about 300 a year in the mid-1990s.

The arguments for and against capital punishment have evolved. Thirty years ago, says Mr Radelet, Americans supported the death penalty for three main reasons: deterrence, religious conviction (an eye for an eye) and taxes (the idea of spending public money to feed and clothe murderers for the rest of their lives seemed outrageous). This last argument no longer applies. It is now far more expensive to execute someone than to jail him for life; in North Carolina, for instance, each capital case costs $2m more. Ordinary inmates need only to be fed and guarded. Those on death row must have lawyers arguing expensively about their fate, sometimes for a decade or more (see chart 2). The system of appeals has grown more protracted because of fears that innocent people may be executed. Few would argue that such safeguards are not needed, but their steep cost gives abolitionists a new line of attack.

Martin O'Malley, the governor of Maryland, says that, but for the death penalty, his state would have been $22.4m richer since 1978. That money would have paid for 500 extra policemen for a year, or provided drug treatment for 10,000 addicts. “Unlike the death penalty, these are investments that save lives and prevent violent crime,” he told the state legislature in February, in a speech urging it to repeal capital punishment in Maryland. He failed by the narrowest of margins: a state Senate committee was deadlocked by five votes to five, preventing the bill from advancing.

A similar attempt got further in Colorado, where Paul Weissman, a state representative, proposed that the money saved by abolishing the death penalty should be spent on a “cold cases” unit to investigate unsolved murders. His bill made it through a committee, but was gutted.

Abolitionists have had more luck, at least temporarily, by arguing that lethal injection, the form of execution most widely adopted, is excruciatingly painful. The cocktail used generally contains sodium thiopental (to anaesthetise the condemned man), pancuronium bromide (to paralyse his muscles) and potassium chloride (to stop his heart). Some studies suggest that prisoners are sometimes inadequately sedated, and perhaps die in silent agony from asphyxiation.

Since last year, ten states have halted executions because of fears that lethal injection may be cruel, and therefore unconstitutional. In Florida, for example, Governor Jeb Bush (the president's brother) suspended executions after a fiasco last December in which the executioner missed a vein and pumped the drugs into muscle. The condemned man took 34 minutes to die, during which he grimaced and writhed, suggesting acute agony.

The problem can, however, be fixed. In Florida a committee has recommended 37 ways to make lethal injection more “humane”. This has satisfied Mr Bush's successor, Charlie Crist, who has now started signing death warrants. The governor of Tennessee, having stopped all executions in February, also let them resume in May.

For many, the death penalty holds a deep emotional appeal. It is “an expression of society's ultimate outrage”, says Bob Grant, a former prosecutor and now a professor at the University of Denver, Colorado. Some acts, he argues, are so heinous that no other punishment is appropriate. One example he cites is the case of Gary Davis, the only man executed in Colorado since the 1960s. Mr Davis kidnapped, tortured, sexually assaulted and murdered a young mother in 1986. His guilt was not in doubt. Mr Grant prosecuted him and watched him put to death.

Mr Grant says his views on the death penalty have nothing to do with religion, but many who agree with him do so for religious reasons. A prosecutor in Texas cites Genesis 9:6: “Whoso sheddeth man's blood, by man shall his blood be shed.” This, he says, is “pretty compelling”.

Opponents of capital punishment tend to respond by saying that juries, being human, err. If you find you have jailed the wrong man, you can free and compensate him. If you have executed him, however, it is too late. Jurors increasingly balk at imposing the death penalty, even when they are convinced of a defendant's guilt. Governors, who must review every capital conviction, are also becoming hesitant. In 2000, for example, after journalism students dug up evidence that a man about to be executed was innocent, Illinois's governor, George Ryan, commuted all death sentences in the state and imposed a moratorium that still stands, despite challenges.

Since 1973, 124 Americans have been released from death row because of doubts about their guilt; and of the 7,662 sentenced to death between 1973 and 2005, 2,190 had their sentence or conviction overturned. But in no case has it been legally proven—for example, with DNA evidence—that an innocent person has been executed. Mr Grant says it simply does not happen. “The fact that some people are released from death row is proof that the safeguards work,” he says. Abolitionists suspect he is wrong. The Death Penalty Information Centre, a lobby group, lists eight executed men for whom there is “strong evidence of innocence”.

Ruben Cantu, for example, was put to death in 1993 for murder during a robbery. He was convicted because Juan Moreno, a second victim he allegedly shot nine times but failed to kill, identified him at the trial. But Mr Moreno now says his identification was made under pressure from the police, and was wrong. The prosecutor accepts that the man he sent to his death “may well have been innocent” (though an investigation in Texas in June rejected this).

Deterrence works—or does it?

Although DNA testing has yet to show that an innocent American has been executed, it has proved beyond question that miscarriages of justice occur. Widely reported exonerations have alerted the public to the uncomfortable fact that juries are sometimes biased, that the police sometimes lie and that snitches often do.

But what if executions save lives by deterring potential murderers? That would “greatly unsettle moral objections to the death penalty”, argue Cass Sunstein and Adrian Vermeule, two law professors. Abolitionists say there is no proof that capital punishment deters. Death-penalty enthusiasts say several studies suggest it does.

A crude way of trying to settle which camp is correct is to compare murder rates in jurisdictions with and without capital punishment. This offers no support for the notion of deterrence. In 2005 there were 46% more murders per head in states with the death penalty than in those without it, and that gap has widened since 1990. The murder rate in the United States as a whole, moreover, is far higher than in western Europe, where capital punishment is a thing of the past.

Yet many other factors influence murder rates—unemployment, the probability of getting caught, the availability of guns, the proportion of young men in the population and so on. More sophisticated studies attempt to control for such factors.

Joanna Shepherd, of Emory School of Law in Atlanta, for example, looked at monthly data for executions and murders between 1977 and 1999 and controlled for age, sex, race and labour-market conditions. She found that each execution deterred on average three murders, and that swift executions deterred even more. Other researchers at Emory found that each execution deterred a startling 18 murders. In another study Naci Mocan of the University of Colorado and Kaj Gittings of Cornell University found that each execution deterred five murders, and that each time a death sentence was commuted, five more murders were committed.

The trouble with all these studies is that they draw firm conclusions from sparse data. America has executed on average fewer than 40 people a year since 1976. Even if each execution had a strong deterrent effect, it would be hard to detect against the background of a murder toll that has fluctuated from 24,703 in 1991 to 15,522 in 1999, before rising again to 16,692 in 2005. Researchers' calculations are further distorted by the fact that one state dominates the data. “Any regression study will be primarily a comparison of Texas with everywhere else,” writes Ted Goertzel in Skeptical Enquirer magazine.

The chance of being executed in America is so remote that it cannot plausibly be a significant deterrent, argues Steven Levitt, of the University of Chicago. Even if you are on death row—a fate over 99% of murderers escape—the chance of being put to death in any given year is only about 2%. Members of a crack gang studied by one of Mr Levitt's colleagues had a 7%-a-year chance of being murdered. For them, death row would be safer than the street.

There are other arguments against the death penalty. Some opponents complain of a racial bias in its application. This is disputed. Mr Radelet thinks the race of the perpetrator makes little difference, but juries respond more vengefully when the victim is white. In a study of murders in California, he found that those who killed non-Hispanic whites were twice as likely to be sentenced to death as those with darker victims.

APNot all Texans back Texecutions

Capital punishment is not about to end in America. But, as voters lose their appetite for it, states will use it less or even give it up completely. How closely America follows the global trend towards abolition will depend less on academic arguments than on emotional ones.

After Joseph Nichols's execution, the victim's family said they were glad that justice had been done, but angry that it had taken nearly 30 years. Colleen Shaffer, the victim's daughter-in-law and a social worker by training, said that at the time of the murder she had thought the death penalty “maybe wasn't such a good idea”. Now she is a strong supporter.

In Boulder, Colorado, Howard Morton tells a different story. His son Guy disappeared while hitch-hiking in the Arizona desert in 1975, when he was 18. For more than a decade Mr Morton continued to search for his son. Then, in 1987, a retired deputy sheriff read about Guy in a newspaper, and recalled finding a skeleton in the desert in the year he had disappeared. The medical examiner had mislabelled it as belonging to a Hispanic woman, but dental records proved it was Guy. He had been found with a broken knife blade in his chest. The murderer was never caught.

Mr Morton discovered that over 30% of murders in America are unsolved, like his son's. He found out, too, that the states spend millions of dollars putting a handful of murderers to death while detection is under-financed and thousands of murderers walk free. He became an ardent abolitionist. Anyone close to a murder victim “wants the son of a bitch who did it to die,” he says. “But you've got to catch the son of a bitch. That's more important.”