The Death Penalty: Academia v. Public Opinion

In the past decade or so, the subject of capital punishment has spurred many academics to heated opinions arguing for and against the death penalty.  Some opponents of capital punishment have highlighted the world trend of abolishing the death penalty, noting that China, Iran, Pakistan, Saudi Arabia, and the United States carry out most of the known executions around the world, and that “the number of countries that still allow the death penalty has been dwindling.” 

Numerous Supreme Court justices have spoken out against the death penalty. At the World Affairs Council of Philadelphia in 2011, Justice Breyer urged the President and Congress to abolish the death penalty in America citing the example of French President Mitterand in saying, “Europe is against the death penalty now . . . In 1980, 2/3 of the French Electorate supported the death penalty. Still Mitterand, in a television interview, came out against the death penalty. He immediately went up in the polls because he took a position of conscience. The same thing could happen [in America].” However, he doubts that abolition of the death penalty will come any time soon, because “Politicians were in the popular club in high school. They hold their finger up to the wind to measure popularity.”  In a 2014 interview, Justice Ginsburg said, “if I were in the legislature, there’d be no death penalty. But the death penalty for now is the law…” Concurrently, Justices Kennedy, O’Connor, Scalia, and Stevens have all generally posited that it is the legislative’s duty to abolish the death penalty should they wish to do so, but the current state of the law clearly permits the death penalty where appropriate.

However, it appears that the American public does not seem to share the academic opposition to the death penalty. In fact, over the past seven decades, there has been a significant showing of support in favor of the death penalty, according to Gallup Poll results.

The 2009 Gallup Poll asserts, “For many Americans, agreement with assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty.”   Further, 49% of respondents said the death penalty is not imposed often enough, 24% said it is imposed “about the right amount,” and only 20% said it is imposed too often.

The discrepancy between academic opposition and American citizens’ support of the death penalty may suggest that Justice Breyer was correct in asserting the legislature will be slow to abolish the death penalty, if it should ever do so.  If the legislature accurately reflects the public will on this issue, the death penalty is still a widely favored justice mechanism.

For prosecutors and defense attorneys, this dichotomy presents a challenge as to how to argue capital punishment cases.  Under federal statutes, the death penalty can appear in cases of murder (18 U.S.C. 1111), espionage (18 U.S.C. 794), Treason (18 U.S.C. 2381), Trafficking in large quantities of drugs (18 U.S.C. 3591(b)), and attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs (18 U.S.C. 3591 (b)(2)). As of 2009, there are no individuals on death row for any charge other than murder.

For prosecutors, there are no significant barriers to requesting the death penalty in appropriate cases; however, prosecutorial discretion allows for life without parole as a viable alternative.  Because capital punishment has been so carefully applied, case law on the matter is often readily available to crimes where the death penalty may be justified. Thus, where capital punishment is sought, it is often strongly supported.

For defense attorneys, challenging the death penalty sentence poses a significant challenge, given how strongly a prosecutor can usually support a death penalty request.  However, notable academic opposition provides some fodder for the idea that defense attorneys can argue for life without parole as an alternative, and argue to both the judge’s and jury’s sensibilities on the value of life to avoid the death penalty.

But where does that leave the state of capital punishment? When the views of those in the legal profession do not accurately reflect the view of people in society at large, is it merely the judge and jury’s sensibilities that determine the appropriateness of sentencing someone to death?  To what extent is the prosecution building a traditional, adversarial case thwarted by public opinion on the issue?

Ultimately, it appears that on either side of the argument, the determination of whether capital punishment is appropriate is entirely a matter of discretion—prosecutorial and judicial—to be determined on a case-by-case basis, despite the long history of attempting to define when capital punishment is warranted.  For criminal attorneys, there remains no predictable outcome, and one can only hope that their zealous advocacy prevails in the eyes of the law.

Kyle Kemper

Staffer, Criminal Law Practitioner

Photo by Patrick Feller via Flickr