Outdated and Inhumane: Why the Death Penalty Needs to be Abolished.
By: Alisha Saxena
Tags: Prison Abolition, Prison, Justice, Death Penalty

On December 10th, 2020, at 9:27 PM, the American government willingly engaged in the unjustified murder and execution of Brandon Bernard. This article highlights concerning trends about the death penalty before diving into the lack of legality, ethicality, and feasibility which exists when considering the practice of the death penalty.

Image Source: Brendan Smialowski/AFP/Getty Images

*trigger warnings: discussions of violence and death/dying are prevalent in this text. please read with caution*

Though establishment Democrats and Republicans often position themselves as hosting starkly different opinions from their opposition on a variety of issues, the death penalty does not appear to be one of those issues. Though former President Obama did not execute anyone under federal jurisdiction, he was greatly criticized for not granting more clemency petitions prior to transitioning out of power. The Death Penalty Information Center analyzed that, under President Trump, the federal execution “spree” is out-of-touch with current trends and attitudes about the US death penalty: not only have capital trials and executions been halted with COVID-19, but they also note that the federal government has NEVER carried out more than five executions in any year since World War II.

“The disconnect between the federal increase in executions and the decrease in state death-penalty usage has no parallel in modern US history”. ~Death Penalty Information Center, September 3rd, 2020

On September 15th, 2020, the DPIC also released a crucial report entitled “Enduring Injustice: The Persistence of Racial Discrimination in the US Death Penalty,” where principal author Ngozi Ndulue provides a comprehensive history on racial discrimination in relation to capital punishment, and provides key insights about current trends with the death penalty in particular. Though 25 states have abolished or prohibited executions, the DPIC focuses in on the counties which have “shown increasing racial concentration of death sentencing”. Though the state of Texas has been historically known to liberally exercise the death penalty in comparison to other states, and as a result would be expected to host counties with the highest rates of death sentencing, they actually do not claim the top spot.

Riverside County, California is responsible for sentencing the most people to die since 2013, with 96% of those sentenced being either Black or Latinx. Similarly, in Los Angeles, California, the last 22 people sentenced were POC. Cuyahoga County, Ohio and Harris County, Texas display similar trends.

The image below provides a more comprehensive understanding of the racial disparities in the application of the death penalty.

Image Credit: Death Penalty Information Center

Now, Ndulue recognizes that these numbers alone are not enough to necessarily convince people of racial disparities, as these numbers may not take into account the severity of crimes and other factors. As a result, they redirect the reader to a crucial 1990 report by the GAO (General Accounting Office) entitled “Death Penalty Sentencing: Research Indicates Pattern of Hospital Disparities,” which clearly articulates that:

“In 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks… The evidence for the race of victim influence was stronger for the earlier stages of the judicial process (e.g., prosecutorial decision to charge defendant with a capital offense, decision to proceed to trial rather than plea bargain) in later stages” ~General Accounting Office, February 1990

This deeply disturbing trend of racial biases impacting the outcome of the death penalty has failed to disappear in modern day.

Image Source: DPIC Report

What are the methods which states are utilizing to execute the death penalty? While many states have made lethal injections the sole method, other states allow a choice between lethal injection, lethal gas, and electrocution. Yet, while some states offer an option, other states like Mississippi authorize the use of nitrogen hypoxia and electrocution if lethal injection is “otherwise unavailable”. While Mississippi and Oklahoma have reserved the firing squad method as the last approach, Utah uses it immediately in the case of lethal injections being “otherwise unavailable”; the DPIC notes that it is the only state to have used the firing squad, with it last being used to execute Ronnie Lee Gardner in 2010. New Hampshire and Washington are the only two states to still allow death by hanging, with Washington allowing for the inmate to opt in to hanging and with New Hampshire using it in cases of lethal injection being impractical to carry out the punishment.

With an incoming transition of power, are we expected to witness any drastic changes in the future on the death penalty? The Marshall Project, in their piece entitled “What Joe Biden’s Win Means for the Future of Criminal Justice,” remind us that only Congress has the authority to federally abolish the death penalty, but that Biden has a few avenues by which he can reduce the use of the practice. Also, given that Democrat-controlled Congress bodies have not steadily pursued its abolishment, it is clear that there is a muddled partisan divide on the issue. He can initiate a moratorium on executions and halt all action until studies are conducted on the punishment’s use, something which President Obama had promised and yet did not deliver on. Furthermore, the president can withhold federal grants unless states guarantee that death row prisoners have access to DNA tests to help prove their innocence. Finally, he could pursue a massive clemency campaign where the sentences of more than 50 people currently on death row are commuted.

Where does the American public stand on their support for the death penalty? Gallup has been collecting data on this very question since 1936- the graph below shows the historical trends, with 55% supporting the death penalty as of November 2020.

“Death penalty support has not been lower since 1972, when merely 50% were in favor”

More public policy analysis by the Pew Research Center indicates that there are 11 states which have maintained the legality of the death penalty, but who have not used it in more than a decade; those states include California, Oregon, Nevada, Montana, Wyoming, Colorado, Kansas, Kentucky, North Carolina, Pennsylvania, and New Hampshire.

After conducting an extensive overview on the current situation of the death penalty in the United States, it is time to discuss the lack of legality, ethicality, and feasibility which exists with the practice of the death penalty. While ethicality can be seen as a subjective discussion of humanity, this article attempts to address legality and feasibility as well in order to still justify its need to be abolished.