The murder of a young West Virginia National Guard member on Thanksgiving in Washington, D.C. last month shocked the nation’s conscience. But those expecting a swift application of the death penalty for the alleged killer are in for a jolt.
The average elapsed time from death sentence to execution is now over 23 years, the longest span in U.S. history. A federal judge once called death “the ultimate run-on sentence.” That was in the mid-1990s, when the delay was only 11 years. In the 1980s, it was six years.
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Understanding how and why this increase happened tells us a lot about legal processes and public opinion. In the past, when crime rates were high and the public was scared and angry, support for capital punishment was strong, and procedures didn’t stand in the way. When crime ebbed, so did support for death sentences, and opponents of capital punishment gained influence and obstructed its application.
Single-year executions in the twentieth century hit their peak in 1935, with 199. Crime had soared in the 1920s, due in part to the gang wars during Prohibition. The crime wave escalated into the early 1930s, with a series of bank robberies and child kidnappings following the abduction of Charles Lindbergh’s baby. The public was shocked and appalled by the brazen violence. There were few legal obstacles to carrying out a death sentence, which back then was accomplished by electrocution or a lethal gas chamber.
But after the horrors of World War II, the movement to abolish the death penalty gained momentum. Civil rights advocates allied with abolitionists, pointing to racial discrimination in the application of the penalty. Gallup polls showed support for death sentences for convicted murderers below 50 percent by the 1960s.
But once violent crime and riots began to escalate at the end of that decade, fear gripped Americans again. Support for capital punishment rose steadily throughout the great crime boom, reaching 80 percent in the 1980s.
By the 1970s, the Supreme Court had entered the picture. The legal issue was the constitutionality of the death penalty: Was it cruel and unusual punishment, prohibited by the Eighth Amendment to the Constitution? The justices were sharply divided, but in 1972 they declared, with a 5-4 vote in Furman v. Georgia, that it was. The nation was stunned, especially because crime and disorder were spiraling out of control, and because this was the first time in nearly two centuries of executions that the Supreme Court had suggested the ultimate penalty was unconstitutional.
But the ruling was not as absolute as it appeared. Only two of the nine justices contended that the death penalty was inherently cruel and unusual. Two others in the majority argued that the penalty was unconstitutional because it was applied arbitrarily. Some heinous murder cases resulted in life sentences; other, less odious murders led to a death sentence.
Of course, this was dubious logic. It’s not cruel to execute a murderer who deserves death for his crime even if another man, who may seem even more deserving of death, gets a life sentence. Nor is this kind of uneven treatment unusual. It affects the sentences for every crime, not just capital murder. No one would therefore conclude that all sentences amount to cruel and unusual punishment.
Nevertheless, the reasoning of the two key justices carried the day four years later, in Gregg v. Georgia (1976). Gregg held that the death penalty was not inherently cruel and unusual, but it mandated a new way of handling capital trials to address the alleged arbitrariness problem. The Georgia law, approved in Gregg, divided the trial into two parts: a guilt phase and a sentencing phase. In the sentencing portion, the prosecution must prove aggravating factors that make the crime more “death-worthy,” while the defense can present mitigating factors that are usually irrelevant to determining guilt and are thus inadmissible in the first part. This “bifurcated” trial, as the Court called it, effectively turned each death penalty case into a two-trial proceeding. Capital prosecutions became more time-consuming and expensive than ever before, tying up prosecutors and defense lawyers for months on a single, complicated case.
But that’s just the first stage of the capital-punishment process—next comes an even more protracted appeals process that can add decades to the resolution of a case.
Appellate courts rarely consider the guilt or innocence of the convicted defendant. Instead, they carefully examine the trial transcript, looking for errors, such as improper jury instructions or witness testimony. If the appeals court determines this kind of error made the verdict unfair, it will reverse the conviction and allow a retrial.
Of course, the longer and more complicated the trial, the more errors will be found (or at least claimed). Note that a reversal says nothing about the innocence of the defendant who, after all, was found guilty by a unanimous jury.
Reading trial transcripts and looking into appellate claims is laborious. A colleague and I once studied the time consumed by death penalty cases and found that, from the death sentence to the decision of a state’s highest court, the process took a median 966 days—a few months shy of three years. If the defendant appealed to the Supreme Court (which almost always happened), that added another 214 days to the process, for a total of 3.2 years. And this is just the start of the appeals process.
Once the initial appeal is complete, defendants can raise additional claims through a process called post-conviction, or collateral, review. Post-conviction claims involve arguments that are not based on the trial transcript, such as the claim that the defense lawyer did not meet the standard for effective counsel. Post-conviction claims probably take just as long as the initial appeal, and they cannot be lodged until after the initial appeal process has been completed. After this, the defendant is entitled to raise the same post-conviction claims in federal court—and appeal their denial up the federal court chain. Talk about redundancy!
Congress could have required consolidation of these post-conviction filings but never did. This probably was an intentional effort by death-penalty opponents to slow the execution process to a crawl.
“For too long, and in too many cases, endless death row appeals have stood in the way of justice being served,” President Bill Clinton complained in 1996. And the late Supreme Court Justice Lewis F. Powell, Jr., representing a committee of the Judicial Conference of the United States, once remarked that “our present system of multi-layered state and federal appeal and collateral review has led to piecemeal and repetitious litigation, and years of delay.” Justice Powell wrote this back in 1989 when, compared with current practices, the system was fairly efficient.
The result of all this litigation is not only delay. The federal Bureau of Justice Statistics found that, from 1973 to 2005, 35 percent of death sentences or underlying murder convictions were overturned by the courts. Only 13 percent of capital sentences were carried out because many of the death-penalty laws were struck down by the courts and some death row inmates received gubernatorial clemency.
So, while each case stands on its own, the most likely outcome, even when the underlying murder is heinous and the evidence overwhelming, is life in prison. Some observers believe that spending the rest of one’s life behind bars is the harsher punishment—but as capital inmates’ endless appeals show, people still prefer life to death.
Photo by Jeff Swensen/Getty Images