Remarks prepared for the Louisiana Council on Human Relations annual meeting held in Lafayette, Louisiana, June 23, 2001. Appeared in slightly revised form in The Angolite, May/June 2002, pp. 38-41.
Let me say first that I am speaking purely from my own opinion and not as a representative of any organization. Members of other organizations who are here may well disagree with what I have to say. You certainly have a right to your own opinion on this subject, particularly if you actually know something about it. My opinion is based on about 15 years of scholarly research and teaching about the death penalty, and the same period of time working against the death penalty in the legal system.
When I was first approached by Dr. Patricia Rickels a few weeks ago about giving this talk, she told me the subject would be: "How to abolish the death penalty?" "Can you tell us how to do this," she asked. "Sure," I said, thinking I could organize some ideas that would give the audience some notion of how to go about this--sort of a list of steps to follow to change this public policy. Then when I started to write these ideas down, I realized I could not follow through on my promise. The death penalty, I realized, is not something that ordinary citizens could or would do anything about. Rather, it is something that one is born into, or grows up into, something that is a part of one's essential culture or way of life.
How would one abolish the death penalty? You could move to another country, virtually anywhere in the Western world. Almost all the Western democracies abolished the death penalty after World War II; some have not executed anyone in more than a century. If this is too extreme you could move to another state. At least three American states have not used the death penalty since before the Civil War. Alaska and Hawaii did not adopt the death penalty when they became states. Since most of the states that do not have the death penalty are in a band from North Dakota across the northern border of the United States, if you move this summer, you would also get the benefit of a more temperate summer climate.
Or if this is too much trouble, and you should happen to live in Lafayette, you don't have to move anywhere: no one has gotten a death sentence for a crime in Lafayette Parish in almost 20 years. The only death penalty in Lafayette in recent years came last year on a child murder case from Webster Parish, moved here on a change of venue. Defense attorneys chose not to present any evidence during the penalty phase of the trial, and their client did get a death sentence. Many observers were startled at the attorneys' tactics and thought the death penalty could have been avoided if they had made a better case for life to the jury.
Lafayette is not unique among Louisiana's 64 parishes. Since our present capital punishment statute took effect in 1977, almost half of our parishes have not given anyone a death sentence. The death penalty tends to be concentrated in certain jurisdictions. We speak of the death penalty in America, and while it is true that if it happens within our borders it is in America, it is not at all meaningful to speak of the death penalty as a general practice, even within those states where it is frequently imposed. The death penalty is not evenly applied, like paint rolled across the canvas. It looks more like splatters, dropping here and there on a mostly unblemished map. Some people speak of death belts, especially across the South, from Oklahoma and Texas to the Atlantic Coast south of Interstate 70. Others speak more precisely of "death pockets," where concentrations of death sentences occur with much greater frequency.
I sometimes think of the application of the death penalty as being analogous to cancer. Cancer runs in families, we are told. Some families have a lot, some families, fortunately mine included among them, have virtually none. The death penalty runs not in families but in counties. In proportion to homicides occurring locally, some counties have a lot of death sentences, some have none, or almost none.
James Liebman, a law professor at Columbia University, said in a 1995 New York Times article, "Lots of states have death belts. In southern Georgia, there are lots of death sentences; in northern Georgia, there aren't. In Tennessee, there are tons of death sentences in Memphis and East Knoxville, but not in Nashville." The same article points out that of 254 counties in Texas, only 42 had sent any inmates to Texas's death row, and half of those only one. Almost a third of Texas's death row came from one jurisdiction, Harris County, where DA Johnny B. Holmes is famous as the "deadliest prosecutor" in America.
Most states have similar death pockets, judicial districts with disproportionately high rates of death sentences. What you expect to find in such a locale is:
1. A hard-core, conservative, politically popular prosecutor.
2. Judges who generally go along with the prosecutor's office.
3. A jury pool in which white conservatives predominate.
4. A small lower class, including significant numbers of blacks and hispanics, that commits enough death-qualified crimes (usually felony murders such as robbery and rape against middle-class white victims) to generate a significant number of prosecutable capital cases.
The real death pocket of America is not Houston, Texas, but the "City of Brotherly Love," Philadelphia, whose long-time DA, Lynne Abraham, was known for seeking the death penalty in over half of all homicides and finding it very often: more than half the inmates on Pennsylvania's death row come from Philadelphia. William Penn and the correctional reformers who founded the American penitentiary would be shocked at this strange turn of events.
The real key to understanding the application of the death penalty in America is not, in my opinion, our people: it is the role of our prosecutors in the legal system. In most states, our prosecuting attorneys are the DAs who are elected at the local level. In all criminal prosecutions, but especially in potentially capital cases, they exercise the "gatekeeper" function, determining which cases enter through the gate and which are turned away. This selection process is entirely within the prosecutor's discretion: some admit very few cases, others admit far more. Even within the same states, prosecutors vary widely in their support for the death penalty. With 16,000 homicides in this country last year, we could have had far more than the total of 300 death sentences actually imposed; that we did not speaks of the restraint that most prosecutors feel about the imposition of the death penalty, and the fact that it is a considerable amount of trouble to obtain a death sentence in our legal system.
Some people have suggested to me that in regard to the death penalty Americans are somehow intrinsically different from the people of other Western nations--that we love the death penalty while others hate it. I don't think this is true. From what I have seen in public opinion polls in other nations that have abolished the death penalty, I see widespread support for capital punishment in the abstract, much as you see it in this country. People around the world think that some crimes deserve death as punishment. For most of human history on earth, the death penalty has been generously employed; only in the past 200 years have most societies limited or eliminated altogether the penalty of death. If use of the death penalty were based solely on a public referendum, far more nations would have the death penalty today.
But in the other Western nations, even if the death penalty enjoys widespread public support, national political officials do not believe it is a wise public policy. They reject it with the same adjectives we use in this country--arbitrary, discriminatory, capricious, haphazard, error-prone, immoral, costly. In these nations, legal policy is made at the national level.
In the U.S., legal policy is made at the local level, by local prosecutors. The U.S. Supreme Court gives us the rules of the game, but they leave it up to the local DAs to decide if they want to play. Some prosecutors decline to play, or play only at a minimal level, which others, for various reasons, play far more often. They may have strong personal or religious beliefs about the appropriateness of the death penalty. They may see it as justice for the community, or the victim's family. They may see it as a useful plank in the platform of controlling violent crime. But most of all, they undoubtedly see the death penalty as good politics. First they make the laws, acting through state legislatures who are more or less subservient to their clout and expertise, and then they apply the laws as they see fit within their own local political arenas.
It is interesting to me that some DAs remain popular and continue to hold office even if they choose not to apply the death penalty in jurisdictions where the death penalty enjoys high levels of popular support, while others embrace the death penalty more fully as part of their political personality. I have a sense that a lot of prosecutors view the death penalty as a necessary evil, a weapon in their legal arsenal to be used only in the most dire circumstances, and something that really does very little good in general. But that is just my observation.
The death penalty in America today is mostly about politics. We could very easily get by without it. Except for an occasional Timothy McVeigh, most of us would never miss it if it were gone. But as long as we have it, we let our DAs use it as a political tool--a symbol of a particular attitude encompassing justice, community values, crime control, and regard for crime victims. So in my view, if we want to abolish the death penalty, the way to go about it is to convince our DAs, who prosecute death penalty cases, that they are wrong.
Most death penalty abolitionists take a different view. Sister Helen Prejean, in Dead Man Walking, says the death penalty will be abolished when the American people are convinced that it is too costly, morally and economically, to continue. She is part of the moratorium campaign that has developed the past couple of years as DNA testing has established more convincingly that errors in justice occur more frequently in capital cases than most people previously believed.
Other people talk about changes in the U.S. Supreme Court, or the pressures of the court of public opinion worldwide. The Supreme Court is certainly a possibility. I mentioned this to Dr. Rickels, when we first spoke on the phone about this talk. She said, "How do we abolish the death penalty?" And I said, "Well, we could have elected Al Gore president." In eight years, if enough of the conservative Supreme Court justices had retired and been replaced with more moderate or liberal justices, the balance could have shifted, at least on this issue; it only takes five votes to make national legal policy, if those five votes come from Supreme Court justices.
With a slightly different makeup in the 1970s, the court might have abolished the death penalty altogether. Capital punishment could have been buried once and for all. But over time, the court has backed away from supervising the administration of the death penalty at the local level. The trend is actually toward giving local jurisdictions more autonomy in deciding how to apply death penalty law, and in enabling this process to work more quickly, if state court judges choose. If the death penalty ball was once more in the federal courts, the Supreme Court seems to be intent on returning it to the state courts. This change is widely viewed as appropriate by both Democrats and Republicans in the South, where the death penalty remains politically most popular and most likely to be carried out. So even if the Supreme Court changed members, I wouldn't expect any immediate repudiation of recent jurisprudence.
What about world pressures to change our policies? The intervention of political officials or other leaders may have some effect in individual cases, as when the Pope got the governor of Missouri to commute a death sentence a couple of years ago, but this is not to say that this intervention has any general impact on policies and practices. I've never thought Americans were particularly influenced by what other nations wanted us to do. After all, we are the most powerful nation on earth; we can always kick their ass, one way or another, if we want to. Complicating this question of influence is the fact that our most important decision-makers, in the administration of the death penalty, are not national leaders; they are local politicians, who are well-insulated from international influence. What does international opinion matter to a popularly elected DA in the South? In a word, nothing.
What about another recent phenomenon, the emergence of the national moratorium movement that I mentioned earlier. Taking advantage of well-publicized flaws in the legal system that have resulted in dozens of men and women being set free from death row, including half a dozen recent cases in Louisiana, the moratorium groups in the states are trying to build public support for a cessation of executions or the outright repeal of death penalty laws. These groups have had some impact, mostly in the states that don't give many death sentences or execute many murderers. But their impact on the leading death penalty states has been negligible, again I think because they tend to deal with opinion statewide and officials at the state level, while the policy is actually being acted on at the local level. Death penalty abolitionists, especially abolitionist attorneys who work at the appellate level, have successfully slowed down the process by which people are put to death, but they have not had much impact on the number of people receiving death sentences, which has remained fairly constant in the range of 250 to 300 a year for the past 25 years. The recent increase in the number of executions being carried out, to an average of almost 100 per year, is not really reflective of any apparent change in the frequency with which death sentences are being pronounced in court. The increase is more correctly a product of the success appellate counsel have enjoyed in delaying execution dates. But delays run out after 12, or 15, or 20 years, and some number, perhaps no more than a third of the people originally given death sentences, will eventually be executed.
Let me ask my original question again: how do we abolish the death penalty? For the most part, we already have. Only about one in every 50 to 60 murderers today gets the death penalty; out of 3,000 counties in the United States, fewer than 100 gave anyone a death sentence last year. If you are unhappy with even this limited use of this extreme form of punishment, I suggest you attack the problem at its root. Instead of protesting on the capitol steps, or standing a vigil outside Angola at the next execution (and I don't mean to imply that these acts are wrong as a statement of one's position, only that they are useless as means to bring about change), you should take your local DA out to lunch and tell him what you believe. Then tomorrow, someone else who believes as you do should take him out to lunch and tell him what she believes. And the day after that, and the day after that. And perhaps one day, he will change his mind about the death penalty and stop seeking the death penalty in the cases he prosecutes. In my view, we should concentrate more on our powers of persuasion at the starting point in the execution process. The real level of execution is not in Camp F at Angola; it is in the DA's office in the courthouse, where the decision is made to admit one more person through the gate that opens onto death row.