Professor Hoyle's review of Professor Brandon Garrett's recent seminar on the decline of the death penalty in America.

The World Coalition against the Death Penalty created World Day Against the Death Penalty in 2003. Since then, it has been annually observed on October 10, with events and activities organized in a number of countries around the world, including the UK. Given the long-standing interest in the death penalty in Oxford, we wanted to mark this important day by reflecting on the declining use of capital punishment in the United States.

By the end of 2015, 105 countries had legally abolished the death penalty for all crimes, more than half of the world’s territories. Although 2015 saw the highest number of executions worldwide in 25 years, almost all (89%) were carried out in just three countries, all with appalling human rights records: Iran, Pakistan and Saudi Arabia (we do not have accurate figures for China, where the number of death sentences and executions shamefully remains a state secret). In spite of this spike in executions, the overall worldwide trend is clearly towards abolition, with four more countries abolishing the death penalty in 2015 (Madagascar, Fiji, Suriname, and Congo). The United States has continued to reduce its use of the death penalty, with Nebraska, Connecticut and Pennsylvania abolishing or imposing moratoriums during 2015, when executions were at the lowest since 1991 (at just 28). Within this context, the Oxford Centre for Criminology invited Professor Brandon Garrett, Justice Thurgood Marshall Distinguished Professor of Law, from the University of Virginia, to make sense of the declining appetite for the death penalty in the US.   

American death sentences have both declined and become concentrated in a very small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued that today’s death penalty is categorically unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That geographic concentration has become still more dramatic since 2009. Moreover, the American death penalty now produces the fewest death sentences in three decades. Just fifty-one defendants were sentenced to death in 2015. In the mid-1990s, by way of contrast, several hundred people were sentenced to death each year. States like Georgia, North Carolina, and Virginia that once led the nation in death sentences have not seen any new death sentences in years. While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not comprehensively examined the question.  

Brandon Garrett’s research for a new book (Harvard University Press, in progress) describes the results of his meticulous analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment.  This statistical analysis of death sentencing data from 1991 to 2015, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences. Possible explanations include state and county-level changes in murder rates, population, victim race, demography, entrenched practices in prosecutors’ offices, and legal changes like adoption of life without parole. Death sentences were not associated with county murder rates. Instead they were strongly associated with urban, populous counties, with large minority populations, and in places in which the inertia and past death sentencing practices of prosecutors persist. These results suggest that what remains of the American death penalty is quite fragile—and highly arbitrary—raising real constitutional concerns. 

This American death penalty decline has practical and legal implications for criminal justice more broadly. Indigent defense offices play a powerful role in bringing about this decline in the use of the death penalty. Those resources are often not available in non-capital cases. Mental health screening makes a powerful difference in death penalty cases - but it is often not carefully done for lower level crimes. Perhaps these lessons from the demise of the American death penalty, as explored by Professor Garrett, can help to revive criminal justice more broadly. While the death penalty is in decline, the use of life sentences has been rising exponentially. Given the far fewer due process safeguards for those not at risk of execution, his research points to the importance of protecting all of those defendants in the criminal process by providing good legal defence for indigent defendants, including mitigation and forensic expertise. Given that October 10 was also World Mental Health Day, it is quite appropriate that we end by noting the need for robust protections for those defendants with intellectual disabilities or mental health problems. It is clear that despite constitutional protections, in 2015 the US executed people with mental and intellectual disabilities. How many more that we never hear about languish on ‘life rows’ around the country?