Public support for the death penalty has fallen to its lowest level in decades as measured not only in public opinion polls but also in the number of executions and newly imposed death sentences. And yet, if public opinion polls are reliable indicators, Californians are poised to reject a ballot measure to abolish the death penalty for the second time in four years and Nebraskans are about to vote to override the legislature’s decision in May 2015 to abolish capital punishment in their state.
Harvard alumni might be forgiven for being surprised at these predictions after having received copies of Harvard magazine this month with a cover story provocatively entitled, “The End of the Death Penalty?” The story by the veteran legal affairs journalist Lincoln Caplan details at length the growing evidence that what he calls the 40-year-old “experiment” in Supreme Court-regulated capital punishment has failed and that more and more Americans are coming around to that view.
Still, death penalty supporters outnumber opponents when asked in surveys whether they favor death sentences for persons convicted of murder. A Gallup Organization poll released in October found that 60 percent of those surveyed said yes compared to 37 percent who said no. That was the lowest support for the death penalty Gallup had found since the 66 percent figure recorded in 1976. A month earlier, the Pew Research Center reported a narrower margin: 49 percent in favor and 42 percent opposed. For Pew, that was the lowest figure since it began surveys on the issue in 1995.
“We’re in the midst of a long-term political climate change on the death penalty,” says Robert Dunham, executive director of the Washington-based Death Penalty Information Center. But Dunham cautions against expecting developments on the issue to unfold in a straight line. “As with all forms of climate change, physical or metaphorical, there are extreme storms in both directions,” he says.
The center is officially neutral on the death penalty and instead serves as an invaluable and all-but-authoritative resource on capital punishment as actually administered in the United States. By underscoring the wide variations in death penalty policy from state to state, however, the center helps opponents make the case that capital punishment is applied as arbitrarily and freakishly as it was before the Supreme Court’s 1972 decision to outlaw the death penalty as then administered.
Californians actually have two choices on their ballots on what to do with the death penalty. Proposition 62 would abolish the death penalty for capital murder in favor of life imprisonment without eligibility for parole as the maximum sentence. Proposition 66, a ballot measure pushed by prosecutors, law enforcement, and conservative groups, would seek to speed up judicial review of death penalty cases by setting a five-year deadline for state court post-conviction challenges after regular appeals.
If enacted, Proposition 62 would reduce the nation’s death row population by one-fourth in one fell swoop. California currently has 741 inmates awaiting execution, about one-fourth of the total number of 2,905 on death row in 32 states or in federal or military prisons.
Despite that number, California lags far behind other death penalty states in actual executions. California has executed 13 inmates since the Supreme Court’s decision in 1976 to uphold revamped capital punishment laws—a tiny fraction of the 538 executions carried out in Texas and fewer than 15 other states with smaller populations. Death penalty supporters blame the lag on the California and federal court systems. Besides the five-year deadline, Proposition 66 is also aimed at giving trial-level judges instead of the state’s supreme court the responsibility for ruling on death row inmates’ state habeas corpus petitions.
With one exception, polls in California indicate that Proposition 62 will fail, just as a similar proposition was defeated by 52 percent of the state’s voters in 1962. The respected Field Poll found 48 percent in favor and 37 percent opposed in late October, but four other polls found Proposition 62 averaging just over 50 percent in favor. Proposition 66 was ahead 51 percent to 20 percent in a poll in early October by Sacramento State University, but with nearly 30 percent undecided.
In Nebraska, supporters of capital punishment qualified a referendum on the legislature’s decision, overriding a gubernatorial veto, to abolish the death penalty. Nebraska has executed only three people since capital punishment was restored in 1976. A survey in August found 47.8 percent of likely voters in favor of restoring the death penalty and another 10.5 percent likely to vote that way too.
In jury rooms, however, Americans are less and less persuaded. The number of new death sentences imposed in the United States fell in 2015 to 49, according to the death penalty center, barely one-sixth of the 295 imposed in 1998. Meanwhile, the number of executions in 2015 fell to 28, the lowest number since 1991, and is on pace to fall even lower in 2016, with only 17 executions so far this year.
At the Supreme Court, Justice Stephen G. Breyer argued in a dissenting opinion last year that the death penalty may be unconstitutional. He cited the dozens of death row exonerations in recent years as proof of its unreliability and the inevitable delays in judicial review as proof of its failure as either deterrent or retribution. Those doubts are gaining ground among the general public, but voters in two death-penalty battleground states apparently are not there yet.