What Americans Don't Understand About the Death Penalty

Support for capital punishment has hit an all-time low, according to a new Gallup poll. But the public still has a lot to learn about how unjustly the sentence is applied.
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Pat Sullivan/Associated Press

The folks at Gallup released the results of a new poll yesterday about the death penalty in America under the headline: "U.S. Death Penalty Support Lowest in 40 Years." Given the arbitrary way in which capital punishment is administered today in America, that's the good news. Evidently it is dawning on more and more people that the death penalty, as now applied by our judges and juries, is broken, in ways large and small, and thus unworthy of support.

The bad news, however, is that public attitudes about the death penalty today remain wildly disconnected from the reality of the death penalty today. This represents a failure of our courts, and of journalists and advocates, to adequately explain the grim truths about capital punishment. And it represents a failure by millions of Americans to level with themselves, and with each other, about what the death penalty is and is not.

Let me focus briefly here on two of the more disheartening results from the Gallup poll. Here's one:

Fifty-two percent of Americans believe the death penalty is applied fairly in the United States -- a smaller figure than the 60% who favor the death penalty. Forty percent believe the death penalty is applied unfairly. Gallup first asked this question in 2000, when the Illinois moratorium on the death penalty made headlines. At that time, 51% said the death penalty was applied fairly, which remains the low point in the 14-year trend. In 2004, a high of 61% said the death penalty was applied fairly.

This means that more than half of those surveyed are—let me be delicate—still tragically misinformed about the nature of capital punishment in America in 2013. The truth is that race plays an enormous role in determining who is and who is not sentenced to death in America. If you are black you stand a far higher chance of getting the death penalty, especially if your victim is white. The evidence and analysis of this fact are so pervasive that it should be beyond debate: 52 percent of Americans are dead wrong in their perception of the fairness of the application of capital punishment.

We can applaud the fact that nine percent of those surveyed—from 61 percent to 52 percent—evidently have changed their minds about this since 2004. That's also some good news. And we can speculate about why the rest haven't. Some people simply haven't taken the time to study the matter and are content to take the easy path and say that the criminal justice system is fair. Some people probably think that it is fair that more blacks are sentenced to death when they kill whites than whites are when they kill blacks. And what about those addled folks—eight percent, according to Gallup—who believe that the death penalty is unfairly applied but who still support it? Yikes.

The poll also confirmed that support for the death penalty varies wildly depending upon a person's political affiliation—the gulf between Republicans and Democrats widening here as it is everywhere else. But the second Gallup poll question/result that popped out at me was this one:

A separate question asking about the frequency of use of the death penalty finds 44% of Americans saying the death penalty in the U.S. is not imposed often enough -- rather than too often or the right amount of time. Americans have always been most likely to say the death penalty is not imposed often enough, consistent with their generally favoring the death penalty.

However, the current percentage holding that view is among the lowest Gallup has measured. Exactly half as many, 22%, believe the death penalty is imposed too often. Another 26% say the death penalty is used the right amount of time.

So twice as many Americans believe the death penalty should be imposed more often than those who believe it should be applied less often. It seems to me these people—let's call them the "40 percent"— represent the core of support for capital punishment today. These folks are likely never going to be dissuaded that current capital punishment regimes, in states like Texas or Florida or Alabama, violate core constitutional values of due process and equal protection. For them, the frustration is not that judges and juries and prosecutors tip the scales of justice against capital defendants but that they don't tip the scales enough.

In a perfect world, the United States Supreme Court years ago would have conducted a searing review of the core of capital punishment laws. The justices would have moved to end (or limit) racial disparities in capital sentencing and ensured that murder suspects were given competent defense counsel. As I have written before, the deal the Court made with the country in 1976, when the justices restored capital punishment in Gregg v. Georgia, has been breached repeatedly by death penalty states. Over and over again, local officials have not lived up to their bargain of ensuring constitutionally fair capital cases. It's the Court's fault that it has not moved more quickly or forcefully to remedy this breach.

Like all polls, this one gives us little more than a snapshot of current attitudes about a topic that clearly is evolving as a matter of both law and politics. Six states have banned capital punishment since 2006 and lawmakers in several others are contemplating similar measures. And that's really where these poll numbers ought come into play—as a reminder of how far the conversation has come on capital punishment and how far it still has to go. The numbers may change here or there, the percentages may vary a little, but the truth is that the death penalty in America either needs to be overhauled so that it is fairly and justly applied or it needs to be scrapped altogether as a capricious practice unbecoming a civilized nation of laws.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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