Why Anti-Execution Activists Aren't Worried About Popular Opinion

Public opinion on the death penalty hasn't budged over the last few years, despite high-profile missteps. But anti-capital-punishment advocates still say they're winning.

Even with a recent rash of botched executions and increased scrutiny of capital punishment in the U.S., a poll conducted earlier this month shows little movement in public opinion of the death penalty, with a majority still in favor. But anti-execution advocates say the localized nature of the fight to abolish the death penalty means the results of a national poll don't reflect the progress they're making on the ground.

The proportion of Americans in support of the death penalty has remained relatively unchanged since 2008, when it settled around 60 percent. This is the lowest amount of support for the death penalty since the mid-1990s, when 80 percent said they were were in favor.

But the way Gallup has asked this question for decades is an inaccurate measure of actual support for capital punishment, says Richard Dieter, executive director of the Death Penalty Information Center, an anti-capital-punishment advocacy organization.

The question simply asks whether a respondent is in favor of the death penalty for a person convicted of murder, and does not offer any alternatives. Dieter says the question measures "theoretical or philosophical support for the death penalty," but fails to address the more complicated practical problems that come along with capital punishment.

When Gallup asks whether a respondent supports the death penalty or life in prison without parole as a punishment for murder, the split shrinks drastically: Earlier this month, 50 percent of respondents said they would choose the death penalty, while 45 percent favor life imprisonment. These figures have also remained relatively stable since 2008.

Although poll numbers changed little in the past six years, the longer-term trend tells a more complete story, says Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. "Over the last 20 years, we see a steady march downward for the death penalty," Stubbs says. "I fully expect that, with time, regardless of a little bit of noise between one year and another, that the overall trajectory will be a decrease" in popularity.

But both Deiter and Stubbs say polls like Gallup's, while useful measures, are not very representative of the actual developments in the application of the death penalty. National opinion isn't really going to be what changes execution policy in America, they say.

Capital punishment only takes place in a handful of states. "This is a national poll, but we don't have a national death penalty in this country," says Stubbs. "The death penalty is implemented for the most part in the states." More than a quarter of all executions in the U.S. occur in just 10 counties, and one county in Texas, where Houston is located, executes more inmates than any state except Texas.

Rather than taking on nationwide public opinion, the ACLU is focusing its efforts on the parts of the country that are most likely to pursue the death sentence. And even though public opinion polls have been static recently, the number of death sentences have not. According to Amnesty International, the number of death sentences given in the last four years is lower than at any point since capital punishment was reinstated in 1976.

While the ACLU takes on legal cases, advocacy organizations are spreading the anti-execution message. Dieter, whose organization does not engage in litigation, says his work focuses on the practical rather than the theoretical. "We're not trying to convince people the death penalty is morally right or morally wrong," he says. Instead, an emphasis on the problems that come up when it's applied—wrongful convictions, botched executions, extended and costly trials—is turning the tables "in jury rooms and legislatures and voting booths."

"The practical has a way of impinging on us," Dieter says, "because it affects the pocketbook, and it affects how you're really going to deal with this person who's offended society. Are you going to go through the motions of a 2 million dollar trial with no execution likely or are you going to deal with it and be done with it?"

Advocates in favor of capital punishment disagree: Utilitarian concerns come second to people's moral foundations, says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, an organization that supports the death penalty. "Most folks make up their minds on justice and morality," Scheidegger wrote in a recent blog post. "These positions are largely undebatable." He argues that only a minority of Americans can be swayed by arguments and data, tactics that will leave most unmoved.

"The problems with lethal injection are, for the most part, caused by the opponents of capital punishment," Scheidegger wrote in a separate post, "and our response should be to fix the problems, not to abandon a punishment that the vast majority of the American people believe to be the fundamentally right one for the worst murders."

It may be that only a minority of Americans will be convinced one way or another about the death penalty, but given how tight polling is, a small shift is all it would take to move the needle from one side to the other.