Death Penalty Information Center publishes new report on the politicization of the death penalty

Today, July 1, 2024, the Death Penalty Information Center is releasing a new report, Deadly election: How the US electoral process increases the arbitrariness of the death penaltyUsing new data and analysis of appeals and clemency petitions, as well as individual stories and case studies from across the country, the report examines how electoral politics distort the fairness and accuracy of the death penalty.

The United States is the only country in the world that elects local prosecutors, and the only one that chooses judges in expensive, partisan judicial elections. This unique aspect of the American criminal justice system remains untouched by the procedures courts have adopted in recent years to minimize arbitrariness in the death penalty system. “The U.S. electoral process brings many elements of unpredictability and unfairness to death penalty cases. A life-or-death decision should not depend on whether an appeal or clemency petition is heard in an election year, and a defendant’s fate should not depend on who donated money to an official’s campaign fund,” said Robin M. Maher, executive director of the Death Penalty Information Center. “But the data suggest that’s exactly what’s happening.”

Deadly choice contains the results of an original study of supreme court rulings in Georgia, North Carolina, and Ohio. The Death Penalty Information Center found that elected justices of those states’ supreme courts upheld twice as many death sentences in an election year as in any other year. In a new analysis of pardon data, the Death Penalty Information Center also found that the majority (56%) of pardons were granted by executives who were not running for re-election. But the effect was even stronger when executives had sole authority to decide on pardons: In those jurisdictions, 84.6% of individual pardons were granted when the executives were not running for re-election. When executives with sole authority to grant pardons were running for re-election, they granted pardons only four times in 50 years.

The report also notes how public officials use the death penalty as a political issue in campaigns and advertising. For example, three Tennessee Supreme Court justices boasted in television ads that they had “upheld nearly 90 percent of death sentences” as they ran for re-election. When Kelly Ayotte ran for the U.S. Senate, her campaign advertisement addressed her decision as New Hampshire attorney general to seek the death penalty for a man accused of killing a police officer. Ten members of the Commission to Study the Death Penalty in New Hampshire cited Ms. Ayotte’s behavior in their recommendation to abolish the death penalty, writing, “Whether real or imagined, even the appearance that politics influences a decision of this magnitude in New Hampshire’s criminal justice system serves to undermine confidence in the integrity of the system itself.” Ms. Ayotte continues to use the same death penalty case in her campaign for New Hampshire governor in 2024.

While some politicians continue to pose as hard-line politicians on crime, a shift in public support for the death penalty has changed the approach of prosecutors in some counties that have historically imposed high numbers of death sentences. In Philadelphia, Pennsylvania, where District Attorney Lynne Abraham was nicknamed the “Queen of Death” for her aggressive use of the death penalty in the 1990s, voters have twice elected Larry Krasner, who has promised never to seek the death penalty again. In Harris County, Texas, which has had more executions than any other county in the U.S., the number of death sentences has dropped significantly since District Attorney Kim Ogg was elected in 2016. Ogg said in 2017, “I don’t think being the death penalty capital of America is a selling point for Harris County.”

As public support for the death penalty continues to decline and doubts about its fairness and accuracy grow, elected officials are taking notice. Their behavior reflects the fact that in many places their constituents no longer prioritize or value the passion for the death penalty. Understanding these changes should reduce the pressure on elected officials to act reflexively and punitively. But as long as we continue to elect decision-makers and give them the power to make life-and-death decisions, the danger remains that political aspirations will take precedence over considerations of humanity, dignity, and justice. This is one of the great weaknesses of the death penalty in the United States.

The main findings of the report:

• In Georgia, North Carolina and Ohio, elected Supreme Court justices are twice as likely to uphold the death penalty in an election year than in any other year. This effect is statistically significant when controlling for the number of cases per year.
• Changing public opinion means that staunch support for the death penalty is no longer a litmus test for elected officials in many countries that have the death penalty.. Today’s election features strong candidates who criticize the use of the death penalty and promise reform or even abolition, reflecting the significant decline in public support for the death penalty.
• In the past, elected governors were more likely to grant pardons if they did not face voters in an upcoming election. Concerns about a voter backlash have now subsided, given declining public support and low rates of new death sentences and executions, and have led to more prisoners benefiting from clemency, particularly mass clemency, in recent years.