United States: Abolition in Retreat


6 December 2016

Over the last few years, it has almost been possible to imagine America abolishing the death penalty. It was declared institutional by the Supreme Court in certain states and increasingly public opinion has been going against this inhuman punishment. Alas, three referendums and one election have sufficed to push such a possibility into the long grass.

The hope that America might abolish the death penalty has been greatly reduced by the election of Donald Trump as President of the United States. Donald Trump’s personal positioning on this issue is no mystery. As far back as 1989, he bought a full page in the New York Daily News to call for the reestablishment of the death penalty for five minors guilty of rape and murder. More recently, during the electoral campaign he only raised the death penalty issue once, reacting to the murder of two police officers by two Afro-Americans: “these two people are just gunned down by these two thugs […] and they should get the death penalty absolutely. […]They say it’s not a deterrent. Well you know what, maybe it’s not a deterrent but these two will not do anymore killing, that’s for sure.”

The rise of Donald Trump to power risks continuing the status quo for many years. In the United States it is the Supreme Court, composed of 9 judges appointed for life, which decides on the major issues facing society. In particular, over the last few years this institution has ruled on the unconstitutionality of certain applications of the death penalty in states such as Florida. With the death of the conservative judge Antonin Scalia, the Supreme Court is finely balanced with 4 progressive judges and 4 conservative judges. The nomination of Mr Scalia’s successor is proving to be crucial. The replacement proposed by Barack Obama, Merrick Garland, was refused by a majority Republican Senate. In all likelihood, Donald Trump will therefore propose a conservative judge to the Supreme Court. He has already declared that his choice would be for a “pro-life” judge, i.e. opposed to abortion. Further, it is highly likely that Mr Trump will have the opportunity to nominate other new judges to the Supreme Court. 3 of them are already in their 70s and 80s: Ruth Bader Ginsburg, a progressive judge, is 83; Anthony Kennedy, conservative, is 80; and Stephen Breyer, progressive, is 78.

Referendums

On the eve of Donald Trump’s election, 3 states voted on the death penalty. The result was 3 more items of bad news.

On 8 November, 67% of people in Oklahoma voted to include the death penalty in their constitution. This will now stipulate that “any method of execution shall be allowed, unless prohibited by the United States Constitution.” This step, unique in its kind, follows serious problems relating to executions in Oklahoma. In 2014, the execution of Clayton Lockett caused indignation as the prisoner could be heard moaning and was seen moving on his stretcher for a long time. A temporary moratorium had been adopted.

Oklahoma holds the sad record for the most executions per inhabitant. It is one of a homogenous group of retentionist states extending from the Old South to Texas. We recently published an interview with Ndume Olatushani who was unjustly sentenced to death in Tennessee. In particular, he described the political and racial context which led him to spend 28 years behind bars for a crime he did not commit. Read it here.

In May 2015, the Parliament of Nebraska abolished the death penalty with a large majority – to be expected, one might think, in a state which has ‘only’ executed three people since 1959 and whose prisons ‘only’ hold 10 prisoners sentenced to death. But such an assumption did not take into account the energy of Governor Pete Ricketts who used his personal funds, 300,000 dollars, to support a petition and then a referendum on the issue of the death penalty. The result was incontrovertible: 60% of voters demanded the return of the death penalty.

As in several states, Nebraska is facing a problem concerning the supply of lethal products. Last year, Nebraska was the talk of the town when it made an order worth 50,000 dollars to a supplier based in India which, in the end, did not send or repay anything. Naturally, this episode, which was widely covered by the media, did not please the Nebraska Department of Correctional Services. To avoid this kind of disappointment happening again, its Director has just sent the state a proposal to protect its procedures with greater confidentiality.

Californian voters were also called upon to vote on the death penalty on 8 November. The vote covered a large number of proposals ranging from the legalisation of cannabis for recreational use to use of condoms in the pornography industry. Among them, two proposals covered the death penalty. Proposal 62 demanded abolition; Proposal 66 demanded that it be strengthened with, in particular, shorter deadlines for appeal procedures and the obligation for prisoners to work. Result: voters refused No. 62 (53% voting no) and supported No. 66 (51% voting yes).

This news is made even worse because California has more prisoners sentenced to death than any other state with 741 people on death row. Nevertheless, a survey in 2014 appeared to suggest that popular support for the death penalty had dropped markedly in three years: from 69% to 56% of the population.

It is therefore difficult to envisage the United States abolishing the death penalty. However, a few figures do keep the hope alive. In September, the Lew Research Institute published a study which showed that the American population has never been so distrustful of the death penalty. For the first time, the level of support passed below the 50% barrier. Finally, it should be recalled that in the United States executions occur in very specific parts of the country. Of the more than 3,000 counties making up the nation, 15 have been behind 30% of executions since 1976. So really the challenge is a very local one…