More states likely to ban ex­e­cu­tions

Only South seems will­ing to con­tinue prac­tice

USA TODAY Weekend Extra - - NEWS - Jorge L. Or­tiz

On the sur­face, Thurs­day’s de­ci­sion by the state of Wash­ing­ton’s Supreme Court declar­ing its death penalty un­con­sti­tu­tional might seem to af­fect only the folks tucked away in the na­tion’s north­west­ern cor­ner.

Af­ter all, as the 20th state to ban or sus­pend cap­i­tal pun­ish­ment, Wash­ing­ton re­mains in the mi­nor­ity. And the state’s high­est court did not rule the death penalty il­le­gal in and of it­self, but rather the way it has been car­ried out, say­ing it is “im­posed in an ar­bi­trary and racially bi­ased man­ner.”

Le­gal schol­ars, how­ever, see this as the lat­est step to­ward the con­tin­ued abo­li­tion of the pun­ish­ment – its death knell, so to speak – and be­lieve Wash­ing­ton’s move to­ward com­mut­ing death sen­tences to life in prison will be­come more the rule than the ex­cep­tion.

“It is part of a very clear trend over the last 10 years of states abol­ish­ing the death penalty, ei­ther through their leg­is­la­ture, like in New Jer­sey, or through their courts, like in Wash­ing­ton, New York and some of the other states,” said Ellen Kre­itzberg, a Santa Clara Uni­ver­sity law pro­fes­sor who has writ­ten ex­ten­sively about cap­i­tal pun­ish­ment.

Since a na­tion­wide mora­to­rium on the death penalty was lifted in 1976, ex­e­cu­tions in the U.S. peaked at 98 in 1999 but have de­clined at a fairly steady rate since, to 23 in 2017 and 18 this year, ac­cord­ing to the Death Penalty In­for­ma­tion Cen­ter. Start­ing in 2007, 11 states have banned or sus­pended the death penalty. Ne­braska, which abol­ished the prac­tice in 2015, is the only state in that pe­riod to bring it back, restor­ing it through a bal­lot ini­tia­tive the next year.

Some of the states that have kept the pun­ish­ment in place hardly use it. New Hamp­shire, the only north­east­ern state that still al­lows the death penalty, hasn’t had an ex­e­cu­tion since 1976. Nei­ther has Iowa. Wy­oming has had one.

Kre­itzberg said states like Colorado, Ore­gon and Penn­syl­va­nia, which have mora­to­ri­ums but not out­right bans in place – as was the case with Wash­ing­ton – are likely to fol­low suit and ban­ish the prac­tice al­to­gether. It’s al­ready for­bid­den through­out the up­per Mid­west.

On the other hand, all the South­ern states have re­tained the pre­rog­a­tive to ex­e­cute pris­on­ers and have done so much more fre­quently than the rest of the coun­try. When Texas and Ok­la­homa are in­cluded in the re­gion, the South has per­formed 1,211 of the 1,483 ex­e­cu­tions on record na­tion­ally since 1976. Texas is by far the leader with 555.

Even re­mov­ing those two states, South­ern states have car­ried out 544 ex­e­cu­tions.

Franklin Wil­son, as­so­ciate pro­fes­sor of crim­i­nol­ogy at In­di­ana State Uni­ver­sity, said cus­toms and mores in the pop­u­la­tion, which may in­clude re­li­gious be­liefs, dic­tate which di­rec­tion the states take on the is­sue.

“I think it comes down to the cul­ture in the gen­eral pub­lic as far as what their at­ti­tudes are with re­gards to pun­ish­ment,” Wil­son said.

Wil­son, who taught in Texas, Ten­nessee, Ken­tucky and Mis­souri prior to his cur­rent job in In­di­ana, also notes that gen­eral ed­u­ca­tional achieve­ment tends to have an im­pact on at­ti­tudes to­ward the death penalty.

Of the 20 states with the high­est per­cent­age of col­lege grad­u­ates, ac­cord­ing to an Amer­i­can Com­mu­nity Sur­vey from 2015, 14 have abol­ished or sus­pended the prac­tice.

“While re­search has demon­strated that in­di­vid­ual ed­u­ca­tion level has min­i­mal-to-no im­pact on sup­port of the death penalty, over­all state ed­u­ca­tion lev­els may be more telling,” he said.

In its unan­i­mous de­ci­sion, Wash­ing­ton’s high court cited re­search that in­di­cates the im­pact of race in ju­ries’ de­ci­sions to im­pose a death sen­tence.

That has been borne out by a num­ber of stud­ies, Kre­itzberg said, with black de­fen­dants not only more likely to draw the harsh­est pun­ish­ment but the pres­ence of white vic­tims also rep­re­sent­ing the most sta­tis­ti­cally sig­nif­i­cant fac­tor in the hand­ing out of such sen­tences.

The his­tory of the South and the pre­vail­ing at­ti­tudes that have led to some of those num­bers may con­trib­ute to keep­ing the death penalty in place there, even as it falls into dis­fa­vor else­where.

“It’s hard to imag­ine the con­nec­tion from slav­ery to lynch­ing to the death penalty was a ran­dom hap­pen­stance,” Kre­itzberg said. “There’s cer­tainly a con­nec­tion be­tween those in their his­tor­i­cal de­vel­op­ment.”


The ex­e­cu­tion cham­ber of the Wash­ing­ton State Pen­i­ten­tiary won’t be used any­more af­ter the state’s Supreme Court banned the death penalty.

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