What the American People Really Think About Capital Punishment | Austin Sarat | Verdict

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The situation of capital punishment in the United States has shifted dramatically since the late twentieth century. What was once unimaginable, namely that the United States would join most of the rest of the world in abolishing capital punishment, now seems within the realm of possibility.

Former Supreme Court Justice John Paul Stevens captured this moment when he wrote:

[D]ecisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty…. The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

But is the public ready to undertake the “dispassionate, impartial” consideration that Stevens thought appropriate?

On August 16, Real Clear Policy reported on a study that seemingly casts doubt on the public’s readiness to do what Justice Stevens recommended. That study, carried out by Rose Institute of State and Local Government at Claremont McKenna College, confirmed what it called deep and “widespread support for the death penalty.”

But the answer to the question about what the public really thinks about capital punishment may lie in the simple maxim: watch what people do, not what they say.

The Rose Institute study contends that support for capital punishment is actually much higher than is generally found in widely reported public opinion surveys. According to Gallup and Pew, support ranges between 55% (Gallup, 2020) and 60% (Pew, April 2021). These findings register a substantial decline from the mid-1990s high-water mark of 78-80%.

The Rose Institute suggests that the questions asked by Gallup or Pew are inadequate because they “do not distinguish between most murders—or, what we might call the “typical” or “average” murder—and the specific kinds of aggravated murders that make a killer eligible for the death penalty in the 27 American states with capital punishment.”

The Institute’s 2019 national survey found that 80% of respondents supported the death penalty as a punishment for “raping and murdering a child.” The number declined slightly (74%) when that question was repeated in a 2020 survey. Similar levels of support were expressed for capital punishment for “Killing dozens of people as part of a terrorist attack,” “Killing someone after intentionally torturing him or her,” and “Killing one or more persons by setting off a bomb in a public place.” Altogether, “86% of respondents supported the death penalty for at least one kind of aggravated murder.”

It is not surprising that such sensationalist questions evoke strong responses.

Such questions also may invite respondents to say what they think the interviewer expects. They may not elicit what respondents would do if given the responsibility of deciding real cases in which a crime is put in context and a real person’s life is at stake.

And, even if we credit the accuracy of survey responses, the Rose Institute survey did ask what the public prefers when offered a choice between the death penalty and another severe, but non-lethal, punishment.

Other research indicates that when life-in-prison without parole (LWOP) is introduced in surveys as an alternative to capital punishment, death penalty support declines. This is because most people recognize that LWOP is itself a severe punishment, Many endorse it because they worry about the death penalty’s unreliability and discriminatory application.

For example, a 2019 Gallup poll found that “For the first time in Gallup’s 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is. The 60% to 36% advantage for life imprisonment marks a shift from the past two decades, when Americans were mostly divided in their views of the better punishment for murder. ”

Writing in 1972, Justice Thurgood Marshall offered another complication in the effort to gauge what the public really thinks about the death penalty.

As Marshall put it:

While a public opinion poll obviously is of some assistance in indicating public acceptance or rejection of a specific penalty, its utility cannot be very great. This is because whether or not a punishment is cruel and unusual depends, not on whether its mere mention “shocks the conscience and sense of justice of the people,” but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust and unacceptable.

Research has shown that Marshall was right to suggest that “opposition to the death penalty will increase with exposure to information about it.”

When people serve on death penalty juries, they confront the facts that Marshall named. Their general views about capital punishment are often put aside when they need to decide whether a defendant, who has been convicted of committing a death-eligible offense, should be sentenced to death.

Jurors in the United States now are, in fact, much less likely to answer in the affirmative than at any point in the last half-century. That is why death sentences across the United States, even for the most aggravated murders and even in places like Texas, have declined dramatically. And as the death penalty fades, jurors become even less convinced of its utility and less inclined to impose it.

This is particularly significant when we remember that only people who do not object to the death penalty in principle can serve in capital trials as jurors. As law professor Brandon Garrett notes, jurors today are more likely to reject the death penalty “after hearing a convicted murderer’s life story, including evidence of mental health issues, childhood abuse, and other mitigating circumstances.”

If we want to know what the American people really think about capital punishment, we need to pay attention not just to what they say in response to survey questions, but to what they do when they confront its grim realities.

What the French philosopher Albert Camus once said about capital punishment in his country seems to be true in this country as well. When people are “shown the machine, made to touch the wood and steel…then public imagination, suddenly awakened, will repudiate…the penalty.”

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