On the Death Penalty in the United States

Two interesting articles appeared recently touching on different aspects of the death penalty as it has been utilized in the US. David Cole provides a discussion in the London Review of Books, Thirty-Five States to Go, based on a review of a book by David Garland.

Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland
Oxford, 417 pp, £21.99, September 2010, ISBN 978 0 19 959499 3

Jeffrey Toobin, in The New Yorker, provides some additional data and a profile of one person who is devoting her life to helping people avoid the death penalty. That article is titled The Mitigator.


The US is usually viewed as an outlier because the death penalty is generally available and is still occasionally levied, while it is outlawed in Europe. Garland makes the critical point that regarding this issue it is more appropriate to think of the US as 50 independent states, some of which banned capital punishment long before the European states.

“Michigan, for example, abolished capital punishment in 1846, long before any country in Europe. It has remained abolitionist ever since. Rhode Island followed suit in 1852, and Wisconsin in 1853. Portugal, the first Western European country to abolish capital punishment, did not do so until 1867; it then reinstated the penalty for treason, permanently abolishing it only in 1976. The UK abolished it in 1969 (although retaining it for 20 years as a punishment for treason and piracy), France kept it until 1981.”

It is also occasionally claimed that there is something unique in the American character which manifests itself in a “lust for blood.” This contention of American uniqueness is not supported by the data.

“Garland shows that the data suggest otherwise. Large majorities in many European countries favoured the death penalty even as it was being abolished. When Germany outlawed capital punishment in its 1949 constitution, two-thirds of its population were still in favour. François Mitterrand’s administration abolished it in 1981, ignoring the 73 per cent of the French population who approved of it. In the UK, 76 per cent of respondents backed it in 1995, nearly three decades after abolition. Meanwhile, about 65 per cent of the American public supported it in 2001.”

There are regional differences within the US that suggest some sort of explanation based on culture or history.

“In the US today, 35 states and the federal government retain the death penalty; 15 states have abolished it. Only a handful, mostly in the South, actually carry it out. Texas alone has been responsible for a third of all executions in the US since 1976.”

“Franklin Zimring, a criminologist at the University of California at Berkeley, has shown that the geographical pattern of executions in the US today almost exactly matches the pattern of lynchings in the early 20th century, both heavily concentrated in the South and Southwest.”

Garland does not believe that it is appropriate to associate today’s capital punishment with the lynchings of an earlier era.

“Garland argues that executions in the 21st century are crucially different from lynchings; instead of inflicting rough, vigilante justice, the death penalty is imposed only after a lengthy appeal process, and carried out not as a confident public display of brute and terrible authority, but as a rigorously regulated private procedure, almost as if the state were embarrassed by its own actions....Capital punishment in its modern American guise is represented not so much as an outpouring of community rage but as a service to the victim, offering a form of closure, carried out as humanely as possible. It has been domesticated, and that very domestication makes it more difficult to extirpate.”

On the other hand, there is a definite racial bias both in the utilization of lynching and in the application of the death penalty.

“There were 4743 lynchings in the US between 1882 and 1968; three-quarters of the victims were black.”

“The implementation of capital punishment continues to reflect and reinforce the view that white lives are more valuable than black lives. In California in the 1990s, for example, those who killed whites were four times more likely to get the death penalty than those who killed blacks or Latinos. Virtually every study of the death penalty has found significant racial disparities between murder convictions that result in the death penalty and those that do not.”

If the citizens of both the US and Europe tend to favor the death penalty how did Europe manage to ban it while the US has not?

“The reasons, Garland thinks, have more to do with the structure of American government than any fundamental difference between American and European culture. In most European countries, political elites were able to abolish the death penalty with a single piece of legislation, despite substantial popular support for it. Because of the US commitment to federalism, which allows states substantial independence with regard to criminal justice, the issue is not susceptible to national resolution, but must be worked out separately by each of the 50 states. This means that the US is comprised of pro-death penalty states, mostly in the South; abolitionist states, mostly in New England; and ambivalence and confusion everywhere else.”

Toobin’s article provides a look at how the death penalty is currently being applied.

“The death penalty is withering, even in Texas. In the nineteen-nineties, juries in the United States handed down about three hundred death sentences per year; in 2010 there were only a hundred and fourteen. There were ninety-eight executions in 1999 and only forty-six last year....The change has been especially striking in Houston, which has long reigned as the death penalty capital of the nation....But last year prosecutors....sent only two people to death row.”

Many reasons can be given for this decline in imposition of the death penalty. Jurors are clearly hesitant to make a mistake. So many convictions have later been proven invalid that it is risky to impose the ultimate punishment. Death penalties, with all the legal options available, are very expensive for the government. In Texas, jurors have been given the option of life in prison without possibility of parole. They have often seen this as an adequate alternative.


Toobin focuses on a lesser known approach to limiting the application of the death penalty referred to as “mitigation.”

“When the Supreme Court allowed executions to resume in 1976, after a four year hiatus, the justices mandated a two-phase structure for death-penalty trials....The ‘guilt phase’ would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the ‘penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentanced to death....This system, which became known as ‘guided discretion,’ required jurors to weigh ‘aggravating factors’ and ‘mitigating factors.’”

At first, lawyers did not know how to take advantage of this second phase and generally ignored this chance to help their client, but soon others recognized the opportunity.

“In the nineteen-eighties, some death penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist.”

Toobin profiles Danalynn Recer who runs the Gulf Region Advocacy Center (GRACE) in Houston, Texas. He describes her as the “most prominent mitigation strategist.” He credits her for helping change the rules of the game in Houston. The city is aware of its image and has taken steps to counter some shortcomings in its judicial process. Because of the work of Recer and others like her, prosecutors are much more likely to consider mitigating circumstances as they plan their cases. The result has been far fewer death penalty trials in what was once referred to as the death penalty capital of the nation (world?).


It was comforting to learn that the US may not be quite as different from the European countries as the data might indicate. It was also comforting to learn that the situation continues to improve.