June 27, 2007

Capital Punishment’s Constant Constituency: An American Majority

(For more recent public opinion data on the death penalty, see a 2011 analysis.)


In the last 35 years, beginning with its temporary moratorium on the death penalty, the Supreme Court has changed its view of capital punishment and done so more than once. The majority of Americans, however, have not.

Death penalty support line graph jun07On June 29, 1972, the court determined that the death penalty constituted cruel and unusual punishment because states were imposing it in an arbitrary or discriminatory manner. Four years later, the court upheld several new state death penalty statutes, allowing executions to resume. Since then, it has gradually narrowed the circumstances in which capital punishment can be used, prohibiting the execution of the mentally insane, the severely retarded and offenders who were under 18 when they committed their crimes. It also ruled that rape alone was not a crime punishable by death.

During those 35 years, public support for the death penalty has experienced significant rises and dips, but surveys show that it has not fallen below 50% since 1966. For all that time, a substantial majority of Americans have favored the death penalty for persons convicted of murder.

Surveys show that public support for the death penalty began an upward trend about the time the Supreme Court temporarily suspended capital punishment 35 years ago. Support for the death penalty for persons convicted of murder gradually rose from 57% in late 1972 to a peak of 80% in 1994. In the late 1990s, the trend reversed and support receded for the remainder of the decade.

Since 2001, Pew Research Center surveys show support varying within a relatively steady, narrow range of 64% to 68%, while the number of Americans opposed to the death penalty for murder has ranged from 24% to 30%. In the most recent Pew survey, in late January 2007, 64% favored the death penalty for persons convicted of murder, 29% were opposed and 7% were unsure.
Even as the Supreme Court’s decisions have narrowed capital punishment’s reach, legal scholars note that the court has clearly reaffirmed the constitutionality of the death penalty. All the major Republican and Democratic presidential contenders say they support the death penalty, although in varying, limited circumstances. Of the major candidates, Republican Sen. Sam Brownback appears to call for the broadest restrictions against its use. [See The Candidates on the Death Penalty for a review of their positions.]

Support for capital punishment rises consistently across the liberal-to-conservative spectrum. The more politically conservative the person, the more likely is he or she to support the death penalty; the more politically liberal, the more likely that he or she opposes it. A 2005 Pew poll found that among conservative Republicans, only 9% opposed the death penalty. Opposition was highest among liberal Democrats, with 42% against the death penalty.
Sharp differences also exist among members of different religious traditions. Opposition to the death penalty is lowest among white mainline Protestants (13%) and white evangelicals (15%), while it is notably higher among white Catholics (27%). Opposition is highest among seculars (29%).

What may be most notable about public opinion with regard to capital punishment, however, is that it has varied so little even as legal, political and medical controversies about capital punishment have grown. In recent years, for example, the number of exonerations of condemned prisoners has accelerated, in some instances because of new DNA evidence. In 2000, Illinois’ governor commuted the sentences of all the inmates on the state’s death row, citing “the demon of error” in determinations of guilt and the effect of race in courts’ sentencing decisions. A moratorium on executions is currently in effect in at least nine of the 38 states with capital punishment laws because of legal challenges to how lethal injections are administered or because of the refusal of physicians or other medical personnel to monitor the procedures, as required by some states.
In the last 35 years, the number of executions in a single year reached a peak in 1999, when 98 inmates were executed. In 2006, the total was 53; so far 26 inmates have been executed in 2007.

At the same time, the number of new death sentences a year is falling, while the number of exonerations of death row inmates is rising. According to the U.S. Justice Department, the number of death sentences fell to 128 in 2005, the sixth drop in seven years. From 2000-2006, exonerations of condemned prisoners averaged 5.6 a year, up from 3.1 a year from 1973-1999, according to the Death Penalty Information Center, a nonprofit group opposed to capital punishment. Since 1973, courts have exonerated more than 100 death row inmates in 25 states.

Meanwhile, support for the death penalty among the public has declined somewhat from its peak in the mid-1990s but still remains at a substantial 64%, as noted earlier.

Supreme Court justices have on occasion expressed their own, opposing views with evident passion. In 1972, in concurring with the court’s decision to find the death penalty cruel and unusual punishment because of the arbitrary and capricious nature in which it was applied, Justice William J. Brennan expressed his belief that the death penalty was unconstitutional in all instances: “The objective indicator of society’s view of an unusually severe punishment is what society does with it, and today society will inflict death upon only a small sample of the eligible criminals,” Brennan wrote. “Rejection could hardly be more complete without becoming absolute. At the very least, I must conclude that contemporary society views this punishment with substantial doubt.”

But four years later, writing in support of the court’s decision to uphold new state death penalty statutes, Justice Potter Stewart invoked the strength of public support as an important determinant of that decision. The clearest indication of society’s support of the death penalty for murder, Stewart observed, was that 35 state legislatures had indeed enacted new laws allowing capital punishment. “In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct,” the justice wrote. “This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.”