By Steffen Seitz
In the past seven years, capital punishment has steadily declined in America. From 52 executions in 2009 to 18 so far in 2016, the number of executions per year has trended only downward. Drug shortages, changing public attitudes, and judicial interventions were on track to shorten the life of America’s most notorious penal policy. But with the 2016 election, nearly all of that has changed. Ballot measures in three states, as well as the election of Donald Trump, may signal a return to grislier, more vindictive times.
Perhaps the most concrete development from the 2016 election was the affirmation of capital punishment in California, Nebraska, and Oklahoma. All three states had measures relating to the death penalty on their ballots. All three states confirmed their commitment to capital punishment.
In California, voters faced two ballot measures. Proposition 62 would have repealed the death penalty, but it did not pass. On the other hand, Proposition 66, which would expedite the death penalty by shortening the lengthy appeals process, passed by a very narrow margin. California has the most death row inmates of any state in the country (741), but the state has not conducted an execution in the past decade. Now it seems those executions must go forward, though the details of expediting the appeals process will likely be mired in litigation for the foreseeable future.
Meanwhile in Nebraska, voters reinstituted the death penalty after its repeal in 2015. The ballot measure came largely as a result of Governor Pete Ricketts’s campaign to bring capital punishment back, in which he invested a considerable amount of his own money. Ten death row inmates have been in limbo since the repeal, but, as a result of the recent referendum, it seems they will now return to death row.
Finally, in Oklahoma, voters amended their constitution to assert that the death penalty “shall not be deemed to be or constitute the infliction of cruel and unusual punishment.” While the practical worth of the change in language is small (it has no influence on federal courts), it sends a bold symbolic message in a state with a troublesome recent history regarding capital punishment, including the botched execution of Clayton Lockett and the uncertain conviction of Richard Glossip.
The results of these unfortunate ballot measures are the most obvious consequences of the 2016 election for capital punishment in America. But Donald Trump’s election also raises its own specter. While Trump has flip-flopped on nearly every issue imaginable, he has always been a steadfast supporter of the death penalty. In fact, one of his first forays into the criminal justice sphere occurred in the infamous 1989 Central Park Jogger case. Five black and Latino teens were convicted of raping a woman in Central Park. In response, Trump reportedly spent $85,000 to take out full page ads in all four of New York’s daily newspapers calling to bring back the death penalty for these teens. Ultimately, all five were exonerated by DNA tests.
There are a number of ways Donald Trump will be able to continue advocating for the death penalty when he takes office in January. First, Trump will nominate a conservative justice to the Supreme Court, which makes judicial abolition of the death penalty nearly impossible. In 2015’s Glossip v. Gross decision, Justices Breyer and Ginsburg opined that the modern death penalty may be cruel and unusual because its application is nearly random, and it does not fulfill any penal purpose. Given the prospect of a conservative Court, this promising line of argument will probably not find fruition in future jurisprudence. Perhaps more importantly, a conservative Supreme Court will likely uphold many of the most alarming and controversial features of the modern death penalty. The Court makes important decisions on a wide range of issues including who is eligible for the death penalty, what execution methods are permissible, and what trial and sentencing methods are legitimate. Historically, the justices have split along ideological lines on these questions, so it is likely that the death penalty will continue to receive considerable support from a potentially conservative Supreme Court.
Additionally, Donald Trump could reinvigorate the federal death penalty. The federal death penalty has only been used three times since 1976, and the 64 people on federal death row have not faced a serious risk of execution in many years. Under Obama, the justice department began a review of the death penalty that has not yet been released. But regardless of its findings, it is unlikely Trump’s administration will heed its recommendations. Trump has been a lifelong supporter of capital punishment, and his “law and order” rhetoric leaves little room for abolitionist hopes. Furthermore, Trump’s U.S. attorneys will likely pursue the death penalty more often, and the new administration could provide assistance to state prosecutors pursuing the death penalty. Thus, death sentences at the state and federal level—which have both been decreasing in recent years—could pick up again.
Finally, Trump may appoint a new head of the FDA, which could change how the agency deals with the execution drug shortages plaguing many states. These shortages have caused states to experiment with alternative drug cocktails – a practice which led to Clayton Lockett’s torturous 2014 execution and the 2015 Glossip v. Gross case on the constitutionality of midazolam – and seek drugs from new sources, such as unapproved and unregulated pharmacies in India. The only manufacturer approved by the FDA has stopped making execution drugs, and two thousand vials of execution drugs are currently sitting in FDA storerooms while states and the FDA debate their future. A new Trump-appointed FDA head could rule differently on these issues and make it easier for states to obtain the necessary drugs, thereby enabling a rise in executions.
In short, the 2016 election presents many causes for concern. Ballot measures have fortified capital punishment once again, and Donald Trump’s election may embolden prosecutors and legislators to renew their pursuit of cruel policies. But there are small beacons of hope, and, as progressives, there is still much we can do to combat the resurgence of capital punishment. The most important players in capital proceedings have always been prosecutors. They decide when to seek the death penalty and how many resources to devote to capital cases. And it is here that we can have the greatest impact. By supporting progressive district attorneys and holding vindictive ones accountable, we can reduce how often the death penalty is sought and applied.
In the 2016 election, there were a few glimmers of hope on this front. In Tampa, Florida, Democratic challenger Andrew Warren won after promising to seek the death penalty less often, amongst other promises for justice reform. In Houston, Texas—the county with the most executions since 1976—Democrat Kim Ogg made the same promise and won. While the 2016 election was disappointing on nearly all counts, these down-ballot victories are encouraging and should motivate future justice reform advocates. Supporting progressive DAs is an effective strategy to pursue for criminal justice reform generally, and death penalty abolition specifically. And hopefully, in the coming years, we will win more up and down the ballot, bringing about the end of America’s most notorious punishment. In the meantime, we must continue to support progressive prosecutors, fight cruel punishments in court, and encourage anti-death penalty sentiment.
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